[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Rules and Regulations]
[Pages 58058-58174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8304]



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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; Final Rule

  Federal Register / Vol. 71, No. 190 / Monday, October 2, 2006 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300, 600, and 635

[Docket No. 030908222-6241-02; 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: Final rule; decision on petition for rulemaking.

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SUMMARY: NMFS finalizes the Consolidated Highly Migratory Species (HMS) 
Fishery Management Plan (FMP). This Final Consolidated HMS FMP changes 
certain management measures, adjusts regulatory framework measures, and 
continues the process for updating HMS essential fish habitat. This 
final rule could impact fishermen and dealers for all Atlantic HMS 
fisheries. The final rule will: establish mandatory workshops for 
commercial fishermen and shark dealers; implement complementary time/
area closures in the Gulf of Mexico (GOM); implement criteria for 
adding new or modifying existing time/area closures; address rebuilding 
and overfishing of northern albacore tuna and finetooth sharks; 
implement recreational management measures for 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 to a calendar year; authorize speargun 
fishing gear in the recreational fishery for bigeye, albacore, 
yellowfin, and skipjack (BAYS) tunas; authorize buoy gear in the 
commercial swordfish handgear fishery; clarify the allowance of 
secondary gears (also known as cockpit gears); and clarify existing 
regulations. This final rule also announces the decision regarding a 
petition for rulemaking regarding closure areas for spawning BFT in the 
Gulf of Mexico.

DATES: This final rule is effective November 1, 2006, except for the 
addition of Sec.  635.8 which will be effective January 1, 2007.

ADDRESSES: Copies of the Final Consolidated 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 Chris Rilling at 301-713-2347 or fax 301-713-1917; Russell 
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:

Background

    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 Final 
Consolidated HMS FMP is implemented by regulations at 50 CFR part 635.
    NMFS announced its intent to prepare an Environmental Impact 
Statement (EIS) amending the the Atlantic Billfish FMP and FMP for 
Atlantic Tunas, Swordfish, and Sharks 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. 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 
Consolidated HMS FMP.
    In February 2005, NMFS released the combined Predraft to the 
Consolidated HMS FMP and annual Stock Assessment and Fishery Evaluation 
(SAFE) Report. 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).
    On August 19, 2005, NMFS published the proposed rule (70 FR 48804), 
and the Environmental Protection Agency (EPA) published the Notice of 
Availability (NOA) for the Draft Environmental Impact Statement (DEIS) 
and the accompanying Draft Consolidated HMS FMP (70 FR 48705). The 60-
day comment period on the proposed rule was initially open until 
October 18, 2005. However, because many of NMFS' constituents were 
adversely affected by Hurricanes Katrina and Rita in 2005, and the 
resultant cancellation of three public hearings in the Gulf of Mexico 
region, NMFS extended the comment period on the proposed rule until 
March 1, 2006 (70 FR 58177, October 5, 2005) for a total of 194 days. 
During that time, NMFS held 24 public hearings, gave presentations at 
the five Atlantic Regional Fishery Management Councils and at the Gulf 
and Atlantic States Marine Fisheries Commissions, and received several 
thousand written comments. These comments are summarized below under 
Response to Comments.
    In the proposed rule, NMFS also took additional actions 
including:(1) a withdrawal of the 2003 proposed rule to implement the 
International Commission for the Conservation of Atlantic Tunas (ICCAT) 
250 recreationally caught marlin landings limit (September 17, 2003; 68 
FR 54410); (2) a decision not to include in the Draft Consolidated HMS 
FMP the exemption to the ``no sale'' provision for the artisanal 
handline fishery in Puerto Rico, as outlined in the 1988 Billfish FMP; 
and (3) an analysis of a petition for rulemaking from Blue Ocean 
Institute et al. that requested NMFS close a particular BFT spawning 
area in the Gulf of Mexico (copies of the petition are available upon 
request, see ADDRESSES). Item 1 above was completed at the proposed 
rule stage. Item 2 is finalized in this final rule with the 
consolidation of the two FMPs, and is not discussed further. The 
decision regarding the petition for rulemaking (item 3) is described in 
this final rule after the changes to proposed rule section.
    This final rule does not contain information regarding the 
management history of Atlantic HMS, EFH, or the alternatives 
considered. Those issues are discussed in the proposed rule and are not 
repeated here. This final rule does contain responses to comments 
received during the public comment period, a description of changes to 
the proposed rule, and a decision regarding a petition to rulemaking. 
The response to comments section is organized similarly to the 
organization of the Final HMS FMP and the proposed rule. The 
description of the changes to the

[[Page 58059]]

proposed rule can be found after the response to comment section. The 
decision regarding the petition for rulemaking can be found after the 
changes to the proposed rule section.
    Information regarding the management history of Atlantic HMS, EFH, 
and the alternatives considered was provided in the preamble of the 
proposed rule and is not repeated here. Additional information can be 
found in the Final Consolidated HMS FMP available from NMFS (see 
ADDRESSES).
    Most of the measures in this rule, such as the measures relating to 
time/area closures, BFT, authorized fishing gears, and regulatory 
housekeeping, will be effective on November 1, 2006. However, the 
workshop alternatives (Sec.  635.8) will be effective on January 1, 
2007, in order to coordinate the workshop requirements with the fishing 
vessel and dealer renewal timeframes. The management measures related 
to the directed billfish fishery (e.g., use of circle hooks in billfish 
tournaments) will also be effective on January 1, 2007, in order to 
allow anglers and small entities time to adjust to the new 
requirements. Furthermore, as a result of this final rule, all of the 
HMS management programs will be implemented on a calendar year cycle 
(January 1 to December 31). The Atlantic shark management timeframe 
will maintain the status quo, whereas billfish, tunas, and swordfish 
will shift from a fishing year (June 1 - May 31) to a calendar year at 
different times in 2007. Atlantic billfish will shift to a calendar 
year on January 1, 2007. Tunas and swordfish will shift to a calendar 
year on January 1, 2008. To transition from a fishing year to a 
calendar year for tunas and swordfish, NMFS will establish an 
abbreviated 2007 fishing year via a separate action for BFT and 
swordfish to cover the months between the end of the 2006 fishing year 
(May 31, 2007) and the start of the new 2008 calendar year (January 1, 
2008).

Response to Comments

    A large number of individuals and groups provided both written and 
verbal comments during the public comment period. The comments are 
summarized below together with NMFS's responses. All of the comments 
are grouped together in a format similar to that utilized in the 
preamble of the proposed rule. There are nine major groupings: Bycatch 
Reduction; Rebuilding and Preventing Overfishing; Management Program 
Structure; Essential Fish Habitat (EFH) Update; Economic and Social 
Impacts; Consolidation of the FMPs; Objectives of the FMP; Comment 
Period/Outreach; and General.
    Within many of these major groupings are several separate 
subheadings. The comments are numbered consecutively, starting with 1, 
at the beginning of each of these separate subheadings. The subheadings 
under ``Bycatch Reduction'' are: (A) Workshops; and, (B) Time/Area 
Closures. The subheadings under ``Rebuilding and Preventing 
Overfishing'' are: (A) Northern Albacore Tuna; (B) Finetooth Sharks; 
and, (C) Atlantic Billfish. The subheadings under ``Management Program 
Structure'' include: (A) Bluefin Tuna Quota Management; (B) Timeframe 
for Annual Management of HMS Fisheries; (C) Authorized Fishing Gears; 
and, (D) Regulatory Housekeeping Measures. There are no separate 
subheadings under the major groupings entitled ``EFH Update''; 
``Economic and Social Impacts''; ``Consolidation of the FMPs''; 
``Objectives of the FMP''; and, ``Comment Period/Outreach.''
    All of the comments in the major grouping entitled ``General'' are 
numbered consecutively, beginning with 1, however the grouping is 
further divided into subsections that address general comments related 
to recreational HMS fishing; commercial HMS fishing; longlines; 
swordfish; tunas; sharks; fishing mortality and bycatch reduction; 
permitting, reporting and monitoring; enforcement; and ICCAT.

Bycatch Reduction

A. Workshops
    Comment 1: NMFS should have workshops for the recreational fishing 
industry explaining the use of circle hooks.
    Response: NMFS has conducted educational outreach efforts to 
promote the use of circle hooks in recreational fisheries in the past 
and will continue to do so in the future. NMFS has distributed 
information on circle hooks using informational pamphlets, and in 
person by attendance at billfish tournaments. This final rule will 
implement shark identification and careful release and disentanglement 
workshops as required by Endangered Species Act (ESA) Biological 
Opinions (BiOps). The Agency may consider hosting voluntary workshops 
to address the use of circle hooks in the recreational fishery and may 
provide additional information on circle hooks at billfish tournaments.
i. Protected Species Safe Handling, Release, and Identification 
Workshops for Pelagic Longline, Bottom Longline, and Gillnet Fishermen
    Comment 2: Post-release survival is important to any successful 
conservation management regime and sustainable fisheries. NMFS needs 
additional education and outreach workshops, as well as cooperative 
research initiatives, before significant reductions in post-release 
mortality can be achieved.
    Response: The protected species safe handling, release, and 
identification workshops are intended to reduce the mortality of sea 
turtles, smalltooth sawfish, and other protected resources and non-
target species captured incidentally in the HMS pelagic and bottom 
longline and gillnet fisheries. These workshops are required to comply 
with the 2003 and 2004 ESA BiOps. Owners and operators of PLL, BLL, and 
gillnet vessels will receive instruction on techniques for 
disentanglement, resuscitation, release, and identification of 
protected resources and other non-target species. The goal of the 
workshops is to increase fishermen's proficiency with required release 
equipment and protocols to reduce the number of protected and non-
target species mortalities. Through the Northeast Distant (NED) 
statistical area experiment, NMFS has shown that significant bycatch 
reductions can be achieved through proper research, education, and 
outreach. These workshops are intended to disseminate information 
learned from the NED experiment, as well as other information for the 
BLL and gillnet fisheries.
    Comment 3: Several comments supported mandatory protected species 
workshops for captains and owners. Some of those comments include: 
owners and captains should attend the workshops, but attendance should 
not be mandatory for the crew because it would not be feasible for crew 
members, who may not be U.S. citizens, to attend a workshop; owners' 
attendance would discourage hiring untrained captains who do not have 
the expertise to properly release sea turtles; support for mandatory 
training to reduce post-release mortality of longline-caught marine 
mammals and turtles; the GMFMC supports mandatory workshops for 
captains on pelagic longline vessels; getting their gear off the 
turtles should be all the incentive fishermen need; industry will 
benefit from attending these workshops because it will enable them to 
avoid further regulations; NMFS needs to comply with the BiOp to keep 
the fishery open; workshops are a good investment for the fishermen; 
and, EPA supports alternatives A2 and A3 requiring mandatory workshops 
on handling protected species captured or entangled in fishing gear for 
all HMS pelagic and bottom longline vessel owners (A2) and operators 
(A3). EPA

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also supported preferred alternatives A5 (mandatory workshops/
certification for shark gillnet vessel owners/operators).
    Response: Under the selected alternatives, NMFS will require owners 
and operators, but not crew members, of HMS longline and shark gillnet 
vessels to attend the protected species safe handling, release, and 
identification workshops. HMS longline and gillnet vessel owners will 
be required to attend and successfully complete the workshop before 
renewing their HMS fishing permit in 2007. Without workshop 
certification, the vessel's permit will not be renewed. Operators will 
be required to attend the workshop to ensure that at least one person 
on board the vessel, who is directly involved with the vessel's fishing 
activities, has been successfully trained in the proper safe handling, 
release, and identification of protected species. Without an operator 
trained in these techniques, the vessel will be prohibited from 
engaging in HMS PLL, BLL, and gillnet fishing activities. A safe 
handling, release, and identification workshop certificate will be 
required on board HMS permitted longline and gillnet vessels during 
fishing operations. Due to the large universe of HMS longline and shark 
gillnet crew members, NMFS will not require their attendance at these 
workshops. NMFS encourages operators to transfer the knowledge and 
skills obtained from successfully completing the workshops to the crew 
members, potentially increasing the proper release, disentanglement, 
and identification of protected resources. While crew members are not 
required to attend the workshops, to the extent practicable, the 
workshops will be open to anyone who wishes to attend and receive 
certification.
    Comment 4: NMFS received several comments supporting mandatory 
workshop certification for all HMS commercial and recreational hook and 
line fisheries. Those comments include: Handling and release workshops 
should be implemented immediately for all HMS commercial and 
recreational hook and line fisheries in order to gain the maximum 
benefit from mitigation technologies and fishing practice; training the 
greatest number of crew members is the key to protecting these 
imperiled species. To offset the economic impact, we support a longer 
interval between required training for the rest of the crew, but not a 
complete exemption; and, all HMS fishermen should the complete 
workshops.
    Response: This final rule requires owners and operators of PLL, 
BLL, and gillnet vessels to obtain the safe handling, release, and 
identification workshop certification. Certified operators will be 
encouraged to transfer the knowledge, skills, and protocols obtained 
from these workshops to the vessel's crew members. While these 
workshops are mandatory for owners and operators, the workshops will 
also be open to other interested parties, including crew members and 
other HMS fishermen. Crew members that may have an opportunity to serve 
as an operator on board a vessel are encouraged to obtain the workshop 
training and certification. Crew members will not be required to obtain 
certification in the safe handling and release protocols because the 
average crew member's individual cost to attend the workshop is greater 
than the owner and operator. Additional information suggests that 
turnover is higher with the vessel's crew, making it difficult to 
continue operating a vessel with a fully certified crew. With at least 
one individual on board the vessel trained and proficient in the safe 
handling and release protocols, the likelihood of the safe release and 
disentanglement of protected species increases significantly. While 
implementing mandatory workshops for all commercial and recreational 
HMS fishermen is a laudable goal, NMFS does not have the resources to 
train such a large group of individuals at this time. Nearly 30,000 HMS 
recreational permit holders would need to be trained and certified. The 
cost and logistics of doing this would be prohibitive. However, NMFS 
may consider these workshops and other means for educating these permit 
holders in the future.
    Comment 5: NMFS received comments opposed to the protected species 
workshops. These comments include: handling bycatch correctly wastes 
too much time on a valuable money-making longline trip; I am opposed to 
alternative A2 and part of A5, mandatory workshops and certification 
for all HMS pelagic and bottom longline and shark gillnet vessel owners 
because it is unnecessary, unless they are an owner and an operator; 
owners may not be the vessel operator on fishing trips. The first 
priority should be the vessel operator onboard while at sea on fishing 
trips.
    Response: NMFS agrees that handling bycatch correctly may take 
extra time and effort. However, proper handling of bycatch ensures the 
continued survival of protected, threatened, and endangered species, 
prevents an exceedance of the incidental take statement (ITS), and 
prevents a shutdown of the fishery. NMFS realizes that many vessel 
owners may not operate, or be aboard, their vessels during fishing 
trips. Under this rule, protected species safe handling, release, and 
identification workshops are mandatory for all longline and gillnet 
vessel operators. NMFS will encourage these operators to disseminate 
the workshop information to their fishing crews. By certifying vessel 
owners, NMFS ensures that the owners are aware of the certification 
requirement and skills and will hold them accountable for engaging in 
fishing activities without a certified operator onboard. Additionally, 
the certification requirement will be linked to a vessel's limited 
access permits and owners will not be able to renew their permits 
without successful completion of the required workshop. NMFS requires 
that vessel operators follow safe release and handling protocols when 
they have interacted with certain protected species. All other non-
marketable species should be released in a way that maximizes their 
chances of survival. NMFS requires vessel owners and operators to meet 
or exceed the performance standards described in the 2004 BiOp.
    Comment 6: NMFS received comments suggesting that the operator be 
required to train the vessel's crew with the safe handling and release 
protocols. Those comments include: alternatives A3 and A5 should 
include a requirement that the certified vessel operator train new crew 
members prior to each trip as is customary for safety drills; and, it 
should be clarified that a trained and certified owner or operator must 
be aboard at all times and that this individual is responsible for 
ensuring that proper release and disentanglement gear is aboard, the 
crew is informed, and correct procedures are followed.
    Response: Owners and operators of HMS permitted longline and 
gillnet vessels will be required to obtain the protected species safe 
handling, release, and identification workshop certification before the 
vessel's permit expires in 2007. Operators will be required to be 
proficient in the safe handling and release protocols to ensure that 
there is an individual on board the vessel with the necessary skills to 
disentangle, safely release, and accurately identify any protected 
species caught in the vessel's gear. Owners and operators will be 
encouraged to explain and demonstrate the safe handling and release 
protocols to the vessel's crew members. Owners and operators will not 
be required to train crew members, as this requirement would be 
difficult to monitor and enforce. While crew members are not required 
to attend the protected species

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safe handling, release, and identification workshops, to the extent 
practicable, these workshops will be open to individuals interested in 
receiving the certification.
    Comment 7: NMFS received comments in support of training fishermen 
in the proper release of prohibited species and billfish, as well as 
protected species. These comments include: NMFS should include safe 
release training for sharks and billfishes in these workshops; these 
workshops should be referred to as ``Careful Handling and Release 
Workshops,'' rather than protected species workshops because the 
workshops are appropriate for many species; and, the scope of the 
protected species workshops should be expanded to include prohibited 
species.
    Response: NMFS agrees that safe handling, release, and 
identification training may be beneficial to all participants in HMS 
fisheries, including those that interact with sharks and billfishes. 
The need for protected species safe handling, release, and 
identification workshops stems from two BiOps issued for the commercial 
shark fishery and the pelagic longline fishery. These two BiOps also 
require outreach to the commercial fisheries employing PLL, BLL, and 
shark gillnet gear on the proper safe handling, release, and 
identification of protected species. To comply with these BiOps, the 
intent of these workshops is to reduce the post-release mortality of 
sea turtles that are most frequently caught by participants using BLL 
or gillnet gear to target sharks or PLL gear to target swordfish and 
tunas. However, the techniques, equipment, and protocols taught at the 
workshops, although specific to sea turtles, could be used to safely 
disengage hooks in other fish, such as billfish and sharks, and/or 
mammals that may be encountered. As NMFS collects additional data 
regarding the best methods to use to release billfish and other 
species, NMFS may consider modifying the existing workshops to include 
information on releasing these other species. Until that time, use of 
the dehooking equipment and protocols could be employed to safely 
dehook and release billfish and other non-target species. This use 
could increase post-release survival rates of non-target species. While 
workshop attendance and certification would not be mandatory for 
recreational fishermen, these individuals are welcome to attend 
voluntarily any of the workshops on safe handling, release, and 
identification to become more familiar with these techniques and 
protocols.
    Comment 8: NMFS received comments on grandfathering individuals who 
attended the industry certified workshops held in Orlando, Florida and 
New Orleans, Louisiana. Those comments include: the industry should be 
recognized for holding workshops before NMFS finalized mandatory 
workshops; the three-year clock should start ticking on January 1, 
2007, for those who are grandfathered in, not from when they took the 
workshop; certification should be given to fishermen and owners who 
attended previously held workshops; 85 percent of pelagic longline 
fishermen were trained and industry certified in 2005. The industry was 
supportive and actively engaged. These workshops should serve as a 
template for the future workshops; if the industry-certified sea turtle 
handlers who have already attended and passed the industry mandatory 
certification classes are required to do something, it should be an 
online review and should not have to lose additional time at sea and 
incur additional travel expenses; and, the process should be 
streamlined for these individuals to receive their initial 
certification.
    Response: NMFS agrees that industry should be recognized for 
holding voluntary workshops before NMFS finalized the Consolidated HMS 
FMP. As such, 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 prior to January 1, 2007. The 
certification must be renewed prior to the expiration date printed on 
the workshop certificate and will need to be renewed prior to renewing 
their HMS permit. Generally, the certificate will expire every three 
years consistent with the expiration date of the permit. However, if 
the certificate is received during a month that is not the owner's or 
operator's birth month, the certificate may expire in slightly less or 
slightly more than three years. For example, if the person's birth 
month is June and they receive the certificate in March, the 
certificate would be valid for slightly more than three years from the 
date of completion of the workshop. Those who participated in the 
industry-sponsored workshops will have three years from their permit 
renewal in 2007 to renew their workshop certification. Should new 
information or protocols become available prior to re-certification of 
any owner or operator, NMFS will disseminate the new information or 
protocols to the certified individuals prior to their next workshop.
    Comment 9: NMFS received several comments requesting careful 
consideration when scheduling the workshops. Comments include: the 
lunar cycles should be considered when scheduling the workshops; 
workshops during closed season can still inconvenience people because 
shark fishermen also fish for wahoo, dolphin, etc.; NMFS needs to be 
cognizant of the time burden involved for fishermen; the mandatory 
workshops should be held only for critical issues because fishermen 
must be out fishing to be profitable; and, there needs to be 
flexibility in the process because not everyone will be able to attend 
the workshops.
    Response: To the extent practicable, NMFS will consider lunar 
cycles and their resultant impacts on the availability of HMS 
participants when scheduling protected species safe handling, release, 
and identification workshops. However, since the Agency does not know 
the other fisheries in which fishermen may be participating at all 
times, the Agency cannot guarantee that each workshop will be held at a 
time that would minimize lost fishing opportunities. These workshops 
will be held in areas with high concentrations of permit holders, 
according to the addresses provided when applying for an HMS permit. 
The workshop schedule will be available in advance to allow fishermen 
to attend a workshop that is most convenient to them. The Agency may 
provide an opportunity for the industry to schedule one-on-one training 
at the expense of the individual (i.e., trainer fees), if they are 
unable to attend any of the previously scheduled workshops.
    Comment 10: Some identification training should be provided to the 
owners and operators during the release and disentanglement workshops.
    Response: Species identification is vital for determining how best 
to handle a de-hooking event, and also enhances the amount and quality 
of data available regarding protected species interactions. Accurate 
species identification is also important for compliance with HMS 
fishery regulations, including the avoidance of prohibited species, 
maintaining quota limits, and accurate data collection. NMFS intends to 
make education a key component of the workshops, and will provide 
workshop participants with training to safely disentangle, resuscitate, 
and release sea turtles, as well as identify and release other 
protected species such as marine mammals and smalltooth sawfish. Sea 
turtle identification guides are also

[[Page 58062]]

available on the internet at http://www.nmfs.noaa.gov/sfa/hms/. Some 
marine mammal identification information can be obtained from the 
Office of Protected Resources website: http://www.nmfs.noaa.gov/pr/species/mammals/. The HMS website also contains a link (HMS ID Guide) 
to the Rhode Island Sea Grant bookstore where you may purchase 
identification guides for marine mammals, sharks, tunas, and billfish.
    Comment 11: NMFS received several comments on alternatives A6 and 
A16, certification renewal timetable. Those comments include: renewal 
of the workshop certification should occur every three years; NMFS 
should recertify every three years, but recertification every five 
years would be better; recertification more frequently than every three 
years would be too much; the workshop certification requirement could 
be an impediment to someone selling a vessel if one cannot transfer the 
certification; certification should be tied to the operator, not the 
vessel; and, the EPA supports alternative A6.
    Response: Under the selected alternative, owners and operators of 
HMS longline and shark gillnet vessels will be required to renew the 
mandatory protected species safe handling, release, and identification 
workshop certification every three years. A three-year period for 
recertification will maintain proficiency in the release, 
disentanglement and identification protocols, and allow NMFS to update 
owners and operators on new research and developments related to the 
subject matter while not placing an excessive burden on the 
participants (e.g., lost fishing time and travel to attend workshops). 
NMFS considered recertifying owners and captains every five years, but 
determined that it allows a more extensive period of time to lapse 
between certification workshops, possibly affecting proficiency and the 
ability to obtain the latest updates on research and development of 
safe handling and dehooking protocols. NMFS also considered 
recertifying owners and operators every two years, but did not select 
the option because it would likely have the greatest economic burden 
for the participants due to increased frequency. Federally permitted 
shark dealers will also be required to renew the mandatory Atlantic 
shark identification workshop certification on a three-year timetable. 
A renewal frequency of three years ensures proficiency in shark 
identification and will provide an update on new developments in shark 
identification and HMS regulations.
    The workshop certification will not be transferable to any other 
person and will state the name of the permit holder on the certificate. 
If acquiring an HMS limited access permit (LAP) from a previous permit 
holder, the new owner will need to obtain a workshop certification 
prior to transferring the permit into the new owner's name. This 
requirement ensures that every HMS limited access permit (LAP) owner is 
fully aware of and accountable for the mandatory protocols that must be 
followed on board a vessel with longline gear.
    The initial operator certification will be linked to the renewal of 
the vessel's HMS LAP(s) in 2007. If the vessel owner holds multiple HMS 
LAPs, the operator would need to be certified prior to the earliest 
expiration date on any of the permits in 2007. After the initial 
certification, the operator's workshop certificate would need to be 
renewed prior to the expiration date on the operator's workshop 
certificate.
    Comment 12: PLL, BLL, and gillnet vessel owners may need to be 
allowed proxies as well as dealers. NMFS should consider a proxy for 
elderly owners.
    Response: The 2004 BiOp specifically requires captains to be 
certified in the safe handling, release, and identification protocols. 
This rule requires that operators, not captains, attend these workshops 
as operators are already defined in the regulations as the ``master or 
other individual aboard and in charge of that vessel.'' This rule also 
requires vessel owners for vessels employing longline or gillnet gear 
to attend the workshops to educate the vessel owner in the protocols, 
requirements, and responsibilities of participating in the commercial 
shark or swordfish commercial fisheries. Vessel owners will be held 
accountable for preventing their vessel from engaging in fishing 
activities without a certified operator on board. NMFS is concerned 
that vessel owners would select proxies that are not involved with the 
day-to-day operation of their vessel, thus compromising the goals of 
these workshops and weakening the vessel owner's accountability for the 
activities conducted on board the vessel. Non-compliance with the 
requirements of the 2003 and 2004 BiOps could result in additional, 
more restrictive management measures in the future.
    Comment 13: EPA commented that the Draft Consolidated HMS FMP would 
be improved by providing a more balanced discussion of workshop costs, 
and noted that in today's society, most trades and professions require 
practitioners to obtain licenses demonstrating competence. 
Additionally, without authorized takings procedures, owners/operators 
might have to defend themselves in courts of law for violating ESA. EPA 
stated that if one considers the time invested in attending a one-day 
workshop, this measure seems like a bargain. EPA questioned the 
assumption inherent in the cost/earnings analysis that accepts the 
premise that time spent becoming qualified to practice longline fishing 
is time lost, and of no value.
    Response: NMFS acknowledges that many trades and professions 
require practitioners to obtain licenses demonstrating competence. 
However, there is still an economic opportunity cost associated with 
any required activity that would not otherwise be taken voluntarily. In 
the case of analyzing the economic costs associated with workshop 
alternatives, NMFS assumed the activity that workshop participants 
would be engaged in, if they were not attending the workshop, would be 
fishing. NMFS's use of wage rates from primary job activities as the 
opportunity cost of engaging in other activities is commonly accepted 
practice by economists.
    NMFS recognizes that the training provided by workshops is valuable 
to fishermen and may offset some unquantifiable portion of the 
opportunity costs that were estimated. The opportunity cost estimates 
provided in the Draft Consolidated HMS FMP were considered to be upper 
bounds on the potential economic costs associated with attending 
workshops. Information quantifying the economic value of time spent at 
the workshops is not currently available to further refine the upper 
bound cost estimates used in the economic analysis of workshop 
alternatives.
ii. Atlantic Shark Identification Workshops
    Comment 14: NMFS received several comments in support of 
alternative A9, mandatory Atlantic shark identification workshops for 
all shark dealers. Those comments include: dealers should be required 
to attend the shark identification workshops; if shark dealers cannot 
properly identify a fish, their license and ability to be a dealer 
should be permanently revoked; workshops for species identification are 
generally unnecessary for commercial fishermen although shark 
identification workshops may be necessary for dealers or recreational 
fishermen; NMFS needs to rename the Identification Workshops as being 
Shark and not HMS, since only shark dealers are expected to be in 
attendance and certified at identifying sharks, not tunas; NMFS should 
have two days of training, one mandatory

[[Page 58063]]

(dealers) and one voluntary (fishermen, public, etc); workshops give 
the dealer a good housekeeping seal of approval; NMFS should consider 
prioritizing the certification of shark dealers because the universe is 
so large; prioritization of shark dealers could be based upon a minimum 
annual purchase of shark products; and, EPA supported alternative A9, 
stating that accurate species identification is necessary for 
compliance with HMS fishery regulations, including avoidance of 
prohibited species, maintaining quota limits, and also for accurate 
data collection.
    Response: Under the selected alternative, A9, NMFS renamed the HMS 
identification workshops as Atlantic shark identification workshops 
because only federally permitted shark dealers will be required to 
attend the workshops and receive certification. Identification training 
will be focused on various species of sharks likely to be encountered 
by the dealer in both whole and dressed form. These mandatory 
identification workshops will improve the ability of shark dealers to 
identify sharks to the species level and will improve the data 
collected for quota monitoring, stock assessments, and decision making 
processes for formulating appropriate fishery management strategies. 
While mandatory for shark dealers, these workshops will be open to 
other interested individuals, to the extent possible. Workshop 
locations will be based on dealer permit addresses. A schedule of 
workshops will be available in advance to allow dealers to select the 
workshop most convenient to their schedule. The Agency may provide an 
opportunity for the industry to schedule one-on-one training at the 
expense of the individual (i.e., trainer costs), if they are unable to 
attend any of the previously scheduled workshops.
    Comment 15: NMFS received several comments concerned about the 
effectiveness of the Atlantic shark identification workshops for only 
shark dealers. The comments include: limiting HMS identification 
workshops to dealers only will mean proper species identification will 
come too late for prohibited species such as dusky sharks and such a 
strategy will not address problems with recreational compliance. NMFS 
should expand the required audience at the HMS identification workshops 
and/or expand the scope of the protected species workshops to include 
identification and safe release of prohibited shark species; the 
identification workshop for dealers only is not enough. It will help 
with data collection and stock assessments, but it will not help with 
conservation; and, the Agency should focus its efforts on the directed 
shark fishermen that are actually landing sharks and dealers with 90 
percent of the catch.
    Response: Under the selected alternatives, Atlantic shark 
identification workshops will be mandatory for federally permitted 
shark dealers, but, to the extent possible, these workshops would be 
open to other interested individuals (e.g., individuals participating 
in the shark fishery, port agents, law enforcement officers, state 
shark dealers, and recreational fishermen) on a voluntary basis. Under 
this rule, federally permitted shark dealers will be required to take 
this training in an effort to reduce unclassified shark landings and 
improve species-specific landings data. Improvements in shark dealer 
data will improve existing quota monitoring programs as well as improve 
the accuracy of future stock assessments. With improved shark 
identification, dealers will be more accountable for the sharks 
purchased, potentially discouraging the purchase of prohibited species. 
If there is no market for prohibited species, fishermen may modify 
their behavior and safely release any incidental catch of prohibited 
species. To train and certify the greater than 25,000 anglers that 
participate in the HMS recreational fishery exceeds the Agency's 
resources at this time. While commercial and recreational shark 
fishermen will not be required to attend the Atlantic shark 
identification workshops, to the extent possible the workshops will be 
open to anyone who wishes to attend and receive certification. In the 
future, additional actions may be taken to improve the data collected 
from the HMS recreational industry.
    Comment 16: NMFS received comments on Alternative A15, mandatory 
attendance at HMS identification workshops for all HMS Angling category 
permit holders. Those comments include: mandatory attendance for all 
HMS Angling category permit holders would be a substantial undertaking; 
HMS identification workshops should be mandatory for all fishermen that 
land sharks; HMS Angling category permit holders should also have to 
attend because they are the primary misidentification and non-reporting 
problem; most commercial fishermen know how to identify species; and, 
some of the species identification problem is an angler problem.
    Response: At this time, Atlantic shark identification workshops 
will not be required for HMS Angling category permit holders. Under 
this rule, all federally permitted shark dealers will be required to 
attend the Atlantic shark identification workshops. The dealer's 
ability to renew a Federal dealer permit will be conditioned upon the 
successful completion of the workshop. The purpose of the Atlantic 
shark identification workshops is to improve the data collected from 
the fishery, thereby improving quota monitoring and stock assessments. 
Dealer reports are an important data source for quota monitoring and 
management decisions; and therefore, these workshops will have greater 
impact on improving the accuracy of the shark species identification. 
While the recreational fishery also contributes to shark 
misidentification, mandatory attendance for the angling community would 
not resolve the data quality issues associated with commercial vessel 
logbooks and dealer reports. Thus, quota monitoring and commercial 
regulatory compliance would not benefit from mandatory angler 
attendance as they would under mandatory shark dealer certification. 
Commercial and recreational shark fishermen are not required to attend 
the Atlantic shark identification workshops, but to the extent 
possible, the workshops will be open to anyone who wishes to attend and 
receive certification. The money and time required to track and link 
permits to the workshop certification, to hold an appropriate number of 
workshops to certify all HMS anglers permit holders (over 25,000 
individuals), and to enforce the workshop requirement for all HMS 
angler permit holders currently exceed the Agency's resources. In the 
future, additional actions may be taken to improve the data collected 
from the HMS recreational industry.
    Comment 17: NMFS received two comments about mandatory workshops 
for state shark dealers. Those comments are: HMS identification 
workshops should be held for state dealers to encompass the entire 
universe of dealers reporting unclassified sharks; and, NMFS needs more 
information on state shark landings. The Agency is wasting the 
industry's time requiring the wrong people to attend these workshops.
    Response: NMFS does not have jurisdiction over state permitted 
shark dealers and cannot require their attendance at Federal workshops. 
However, to the extent possible, the Atlantic shark identification 
workshops would be open to other interested individuals, including 
state shark dealers, on a voluntary basis. To purchase sharks from a 
federally permitted vessel, a state shark dealer must also possess a 
Federal shark dealer

[[Page 58064]]

permit and, therefore, will be required to attend the workshops.
    Comment 18: NMFS should require port agents to attend these 
workshops to improve their shark identification skills. Law enforcement 
needs to learn how to identify sharks.
    Response: This action does not require port agents or law 
enforcement to attend the Atlantic shark identification workshops. The 
intent of this action is to reduce the number of unknown sharks in the 
shark dealer reports; therefore shark dealers or their proxy are 
required to attend the workshop. To the extent practicable, the Agency 
will notify law enforcement officials and port agents of workshops in 
their respective regions and encourage them to attend these workshops 
to improve their identification skills, especially since port agents 
are often responsible for the collection of biological information on 
many species that the Agency manages. Furthermore, law enforcement 
officials also need to identify sharks to the species level to enforce 
regulations related to seasons, minimum sizes, bag limits, and trip 
limits. Port agents and law enforcement officials are required to 
attend rigorous training on the identification of HMS regulated 
species; however, the material that will be covered in these workshops 
might provide additional information on morphological characteristics 
to facilitate shark identification in various conditions at landing 
(i.e., no fins, no head, several days since landing, and gutted). 
Because port agents and law enforcement do receive some identification 
training and are not directly involved with reporting shark landings, 
the Atlantic shark identification workshops are only mandatory for 
shark dealers at this time.
    Comment 19: It is very difficult to sell ``unknown'' sharks in the 
market and sharks are being listed as unclassified because it is the 
path of least resistance when they are reporting.
    Response: Landings data from 2004 indicate that the number of 
unclassified large coastal, small coastal, and pelagic shark landings 
was 19 percent, 0.3 percent, and 53 percent of total shark landings. 
These percentages indicate that a significant number of sharks enter 
the market as unclassified, despite regulations that require species-
specific reporting by vessel owners and dealers. NMFS does not know if 
sharks are being listed as unclassified because fishermen and dealers 
are unable to identify them, to circumvent restrictions, or because it 
is the most expeditious manner to process the catch as the commenter 
suggests. However, NMFS believes that mandatory Atlantic shark 
identification workshops will improve the ability of shark dealers to 
identify sharks to the species level. NMFS anticipates that these 
workshops will improve the data collected to assess stock status and 
decision making processes for formulating appropriate fishery 
management strategies.
    Comment 20: NMFS received comments on the workshop materials and 
the need to hold shark identification workshops. These comments 
include: NMFS will need pictures of all the shark species to teach 
proper identification. Those pictures will need to include pictures of 
dressed fish, whole fish, and fins of each species, especially 
prohibited species; and, NMFS should consider enlisting members of the 
industry to help with these workshops.
    Response: NMFS would coordinate with local shark dealers to have 
some dressed sharks available for each workshop. If the workshops are 
held after a closure or in an area where no carcasses are available, 
NMFS would use other tools, such as photo presentations and dichotomous 
keys, to present methods for identifying dressed sharks to the species 
level. The Agency intends to use a combination of dressed sharks, fins, 
photo presentations, and dichotomous keys to improve species-specific 
shark carcass identification. The success of the Atlantic shark 
identification workshops will depend upon cooperation between the 
Agency and the industry.
    Comment 21: Please consider Houma as a location to conduct the 
shark dealer workshops, if selected.
    Response: NMFS would not be able to hold workshops at every shark 
dealer facility; however, the Agency examined the number and location 
of shark dealers in each region, and would work to provide workshops in 
areas that are convenient to the greatest number of people. A 
preliminary evaluation of dealers in the southern Louisiana region 
shows that Houma proportionally does not land the most sharks in the 
region, but is central to other locations. As suggested, the Agency 
will consider Houma as a potential site for an Atlantic shark 
identification workshop.
    Comment 22: NMFS received several comments on allowing a proxy to 
attend the Atlantic shark identification workshops for the shark 
dealers. Those comments are: NMFS should allow a purchase agent proxy 
to attend instead of the shark dealer permit owner; NMFS needs to 
consider all of the truck drivers operating under the single NMFS shark 
dealer permit who purchase sharks products from satellite locations; if 
a shark dealer loses his proxy due to unforeseen circumstances, NMFS 
should have some flexibility on allowing the fishhouse to continue 
operating until a replacement is found and certified; a trained and 
certified dealer representative must be present at all times whenever 
HMS catches are offloaded to be responsible for ensuring that all HMS 
landings are monitored and properly documented; dealers should be 
allowed more than one proxy if requested; ``Dockside Technicians'' 
should be allowed as a proxy for the fish dealer who may not be present 
during vessel pack-outs; the DEIS/proposed rule has some good ideas for 
proxies, but NMFS will need to be careful about a lapse between 
proxies, should the individual leave the business; and, there must be a 
fast track way to get certified if a proxy leaves, such as online 
certification.
    Response: Under this final rule, all federally permitted shark 
dealers will be required to obtain an Atlantic shark identification 
workshop certification. NMFS encourages shark dealers to send as many 
proxies as necessary to train staff members responsible for shark 
species identification within the dealer's business. Federally 
permitted shark dealers will be responsible for ensuring that the 
appropriate individuals receive the proper training in shark 
identification. Federally permitted shark dealers will be encouraged to 
share the workshop information and training with individuals that were 
unable to attend the workshop. Multiple proxies for each federally 
permitted shark dealer will better ensure that every dealer has at 
least one person on staff who possesses workshop certification and the 
skills necessary to properly identify sharks if another proxy's 
employment is terminated. The schedule for Atlantic shark 
identification workshops will be available in advance to allow dealers 
and proxies to select the workshop closest to them and most convenient 
to their schedule. If a dealer or proxy is not able to attend a 
scheduled workshop, NMFS will consider one-on-one training at the 
expense of the individual. These one-on-one training sessions could 
also accommodate the replacement of a proxy whose employment was 
terminated on short notice.
iii. Other Workshop Related Comments
    Comment 23: NMFS received several comments on outreach beyond the 
two workshops. These comments included: regardless of who is required 
to attend the workshops, the Agency should do at-sea identification; a 
field guide should be sent out to all HMS permit holders; NMFS should 
provide

[[Page 58065]]

waterproof field identification materials; manuals should be developed 
on the proper billfish and tuna release handling procedures; and, HMS 
Identification Guide should be required on board permitted vessels and 
in the office of HMS permitted fish dealers. The Guide could also be 
made available online.
    Response: The HMS website (http://www.nmfs.noaa.gov/sfa/hms/) 
currently provides a variety of information on several HMS and 
protected species, including a tutorial on sea turtle identification 
and handling, and a link to purchase the waterproof HMS identification 
guide from Rhode Island Sea Grant, as well as the safe handling and 
release protocols and placards in three different languages (English, 
Spanish, and Vietnamese). Curriculum for the Atlantic shark 
identification workshops is in development. However, current plans 
include distributing waterproof identification materials at the 
protected species workshops, as well as distributing and training 
participants to use a key for distinguishing species-specific features 
at Atlantic shark identification workshops. NMFS recommends that these 
materials be readily accessible in dealer offices and onboard fishing 
vessels, and encourages workshop participants to share knowledge gained 
with their crew and other employees. While NMFS would like to 
distribute the HMS guide to all HMS permit holders, the resources to do 
so are not currently available.
    Comment 24: NMFS received several comments about providing an 
expedited means for receiving the training, certification, and renewal. 
Those comments include: there should be internet training and 
certification; can HMS identification workshops and renewals occur 
online?; certification over the internet might not suffice, however, 
recertification might be possible; to facilitate normal turnover, 
review and busy schedules, NMFS could conduct training via the internet 
and/or by mail; NMFS needs to provide a convenient way for new captains 
to be certified prior to their first trip; initial certification for 
new vessel operators must be conveniently available, such as a self-
course over the internet or overnight mail; vessel operations should 
not be held up unnecessarily; NMFS needs to make sure to develop a 
streamlined approach to keeping this certification effort simple and 
convenient so as to not to be a burden to all folks participating; 
hands-on training is important; and, the first time going through the 
training must occur in the workshop.
    Response: The Agency's priority is to make the workshops as 
successful and effective as possible. Due to the nature of workshop 
subject matter, hands-on training and interaction with the workshop 
leader is vital for initial skill development and certification for the 
protected species safe handling, release, and identification workshops, 
as well as the Atlantic shark identification workshops. Once the first 
round of certifications are complete, NMFS will explore alternative 
means for renewing permits, including online or mail-in options. The 
Agency also hopes to develop an online program that will provide up-to-
date information regarding HMS identification and protected species 
handling techniques.
    To facilitate coordination between workshops and regular business 
activities, NMFS plans to do a focused mailing to permit holders to 
ensure that the workshop times and locations are known in advance. This 
will allow workshop participants to plan workshop attendance 
accordingly and prevent lapses in fishing activities.
    Comment 25: How did NMFS analyze the economic impacts of attending 
these workshops?
    Response: NMFS conducted an opportunity cost analysis to determine 
the economic costs associated with attending the various workshop 
alternatives. This analysis used economic information obtained from the 
HMS logbook, specifically the economic costs section that is required 
to be completed by selected vessels. For vessels that completed the 
economic costs section of the HMS logbook in 2004, revenues per trip 
were estimated by taking the number of fish caught per trip, 
multiplying the number of fish by average weights for each species 
harvested, and multiplying the total weights for each species by 
average prices for each species as reported in the dealer landings 
system. The costs reported for each trip were then subtracted from the 
estimated revenue for each trip. Then the number of days at sea as 
reported in logbooks was used to determine the average net revenue per 
day at sea for each trip taken. Finally, the information provided on 
crew shares was used to allocate the net revenue per day at sea to 
owner, captain, and crew. Information from the HMS permits database was 
then used to estimate the potential number of participants in each of 
the workshop alternatives. Since information on the number of captains 
per permitted vessel was not available, NMFS conservatively estimated 
that there could be two captains per permit for PLL vessels and one 
captain for all others. Net revenues per day for owners, captains, and 
crew were then multiplied by the number of participants expected for 
each workshop alternative to estimate the opportunity cost for a one 
day workshop. The economic impacts (i.e., out of pocket cash costs) 
associated with attending workshops is likely to be less than the 
economic opportunity costs estimated since NMFS plans on scheduling 
workshops on less productive fishing days to avoid lost time at sea.
    Comment 26: If training and certification is mandated, it is 
essential that NMFS ensure that adequate funding and personnel 
resources are dedicated to develop and fully support all program 
facets.
    Response: The Agency agrees and is fully aware of the ramifications 
of these workshops and the need to implement them successfully. 
Numerous individuals, with a variety of expertise and backgrounds have 
been involved in the implementation of the voluntary workshops to date, 
and will be involved in any future mandatory workshops, including: 
shark identification and biology, fishing gear technology and 
deployment, safe release and handling of protected resources, vessel 
permitting, fisheries law enforcement, and shark carcass 
identification.
    Comment 27: NMFS should consider how to ensure compliance with this 
requirement and should have a plan to measure the effectiveness of the 
workshops.
    Response: Successful completion of both workshops will be linked to 
the renewal of the owner's or dealer's HMS permits. Longline and 
gillnet vessel owners must be certified in the safe release and 
disentanglement protocols before they can renew their limited access 
permits. Additionally, longline and gillnet vessels may not engage in 
fishing operations without a certified operator onboard, as well as 
proof of owner and operator certification. Similarly, Federal shark 
dealers must be certified in shark identification, or have a certified 
employee, to renew their dealer permit. NMFS will gauge the success of 
these requirements by monitoring compliance with the sea turtle release 
and disentanglement performance standards established in the 2004 BiOp, 
as well as by monitoring the number of unclassified sharks reported by 
Federal dealers.
    Comment 28: NMFS received comments suggesting that the Agency 
provide the workshop materials in other languages, such as Spanish and 
Vietnamese, as well as English.
    Response: NMFS acknowledges the diversity of HMS fishery 
participants, and will make workshop materials

[[Page 58066]]

accessible to as many of its constituents as possible. While the 
workshops will be conducted in English, NMFS hopes to provide workshop 
materials in other languages for distribution at and outside of the 
workshops. Placards of sea turtle handling and release guidelines are 
currently available in English, Spanish, and Vietnamese. To the extent 
practicable, the Agency will work to develop shark identification 
materials in these languages as well.
    Comment 29: NMFS received several comments related to alternative 
A17, Compliance with and Understanding of HMS Regulations. Those 
comments include: compliance and increased understanding of HMS 
regulations could be addressed by mailing an updated HMS Compliance 
Guide to each HMS recreational and commercial permit holder each year; 
workshops on the regulations are unnecessary as long as brochures are 
available; the proposed workshops should cover new regulatory 
requirements, such as the new PLL TRT regulations; there are no 
alternatives in the Draft Consolidated HMS FMP for workshops on HMS 
regulations. The GMFMC recommends that an interactive web-based 
tutorial be available to improve the understanding and compliance with 
HMS regulations. This training should be mandatory for commercial 
captains; and, NMFS should consider mandatory recreational compliance 
workshops because commercial vessels adhere to many U.S. regulations 
but less emphasis is placed upon recreational compliance.
    Response: During scoping, NMFS explored an alternative that focused 
on enhancing compliance with, and understanding of, HMS regulations 
using Agency sponsored workshops. NMFS received comments noting that 
mandatory workshops need to be prioritized due to the time and cost to 
those who must attend. Furthermore, comments were received in support 
of continuing the current methods of disseminating information 
pertaining to HMS regulations (e.g., Annual HMS Compliance Guide) 
rather than spending Federal dollars to conduct workshops on the 
regulations at this time. Advisory Panel members supported focusing on 
mandatory requirements (e.g., workshops required under BiOps and other 
mandates) first, and then following up with additional outreach 
materials to meet regulatory informational needs. NMFS already 
disseminates this type of information and, because this information can 
be distributed to participants attending NMFS sponsored workshops, this 
alternative was not further analyzed in the Consolidated HMS FMP. 
Compliance guides and brochures can be obtained from the HMS website 
(http://www.nmfs.noaa.gov/sfa/hms/).
    Under this final rule, NMFS requires owners and operators to attend 
mandatory protected species safe handling, release, and identification 
workshops. Furthermore, shark dealers (or their designated proxy(ies)) 
must attend Atlantic shark identification workshops. In doing so, NMFS 
may consider the use of web-based training as a suitable media for 
disseminating training information following an initial workshop.
B. Time/Area Closures
i. New Closures
    Comment 1: Alternative B2(a) indicates that there would be 
ecological benefits to leatherback sea turtles and blue and white 
marlin, yet this alternative was given cursory treatment.
    Response: NMFS comprehensively analyzed the ecological and economic 
impacts of all alternatives, including alternative B2(a), in the Draft 
and Final Consolidated HMS FMPs, consistent with the analytical 
requirements of NEPA, the Magnuson-Stevens Act, ATCA, and other laws. 
In the Draft Consolidated HMS FMP, NMFS investigated potential changes 
in bycatch and discards with and without the redistribution of fishing 
effort for all the time/area closure alternatives considered. For 
alternative B2(a), NMFS evaluated a total of three scenarios of 
redistributed effort (as well as a fourth scenario without 
redistribution of effort), each of which had different assumptions 
regarding how fishing effort would be redistributed into open areas. 
The first scenario assumed that fishing effort (i.e., hooks) from 
alternative B2(a) would be displaced into all open areas. The second 
scenario assumed all fishing effort would only be redistributed within 
the Gulf of Mexico. The third scenario assumed that fishing effort 
would be displaced within the Gulf of Mexico and into an area (i.e., 
Area 6) where the majority of vessels with Gulf of Mexico homeports 
have been reported fishing during 2001 [dash] 2004.
    All three of these scenarios predicted that bycatch and discards 
would increase for at least one of the species considered. For 
instance, under the first scenario, NMFS predicted an increase in 
loggerhead sea turtle interactions (7.9 percent or 14 turtles/over 
three years; annual numbers may be obtained by dividing by three), 
bluefin tuna (BFT) discards (10.3 percent or 166 discards/over three 
years), swordfish discards (4.4 percent or 1,635 discards/over three 
years), yellowfin discards (3.0 percent or 166 discards/over three 
years), and bigeye tuna discards (11.6 percent or 117 discards/over 
three years). Under the second scenario of redistributed effort (effort 
only redistributed in the Gulf of Mexico), NMFS predicted increases in 
sailfish discards (1.8 percent or 18 discards/over three years), 
spearfish discards (3.3 percent or 14 discards/over three years), 
pelagic shark discards (0.3 percent or 112 discards/over three years), 
large coastal shark discards (3.6 percent or 598 discards/over three 
years), swordfish discards (4.4 percent or 1,635 discards/over three 
years), yellowfin discards (22.3 percent or 1,224 discards/over three 
years), bigeye tuna discards (0.4 percent or 4 discards/over three 
years), and BAYS tuna discards (1.0 percent or 91 discards/over three 
years). Finally, under the third scenario (redistribution in the Gulf 
of Mexico and Area 6), NMFS predicted increases in sailfish (4.7 
percent or 61 discards/over three years), pelagic sharks (4.4 percent 
or 834 discards/over three years), BFT discards (1.6 percent or 35 
discards/over three years), and BAYS tuna discards (0.7 percent or 70 
discards/over three years). Given the potential negative ecological 
impact of B2(a) under all three redistribution of effort scenarios, 
NMFS is not implementing alternative B2(a) at this time.
    Comment 2: NMFS decided against any new closures to protect sea 
turtles, billfish, and other overexploited species at this time because 
there is no closure that will benefit all species. Closures should not 
be rejected because they do not ``solve'' the bycatch problem on their 
own. Rather, they should be coupled with other sensible measures to 
ensure that all species are receiving the protection they need to 
recover and maintain healthy populations.
    Response: NMFS agrees that closures can be combined with other 
measures to achieve management objectives. However, NMFS did not reject 
closures because there was not a closure that benefited all species. To 
the contrary, NMFS is not preferring the closures because, in part, 
there were indications that the closures could actually result in an 
increase in bycatch to the detriment of some species with the 
consideration of redistributed effort. Additionally, NMFS does not 
prefer implementing new closures at this time, other than the Madison-
Swanson and Steamboat Lumps Marine Reserves, for a number of other 
reasons, including those discussed below in this response. All of the 
data used in the time/area analyses were based on J-hook data. The 
Northeast Distant experiment suggested that circle

[[Page 58067]]

hooks likely have a significantly different catch rate than J-hooks; 
further investigations are required to determine the potential impact 
of any new time/area closures. The final logbook data recently became 
available. NMFS is beginning to analyze that data. NMFS also continues 
to monitor and analyze the effect of circle hooks on catch rates and 
bycatch reduction as well as assess the cumulative affect of current 
time/area closures and circle hooks. NMFS does not prefer to implement 
new closures until the effect of current management measures, and 
potential unanticipated consequences of those management measures, can 
be better understood. Second, NMFS is awaiting additional information 
regarding the status of the pelagic longline (PLL) fleet after the 
devastating hurricanes in the Gulf of Mexico during the fall of 2005. A 
majority of the PLL fleet was thought to be severely damaged or 
destroyed during the 2005 hurricane season. The amount of PLL fishing 
effort, especially within the Gulf of Mexico, will be assessed in the 
summer of 2006 when data quality control procedures on the 2005 HMS 
logbook data are complete. Until NMFS can better estimate the current 
fishing effort and potential recovery of the PLL fleet, it is premature 
to implement any new time/area closures. Third, a number of stock 
assessments will be conducted during 2006 (LCS, blue marlin, white 
marlin, north and south swordfish, eastern and western BFT, and large 
coastal sharks). NMFS is waiting on the results of these stock 
assessments to help determine domestic measures with regard to 
management of these species. Once NMFS has this updated information, 
NMFS will consider additional management measures, potentially for all 
gear types, to help reduce bycatch and discard rates. NMFS is also 
trying to assess how protecting one age class at the potential 
detriment of other age classes will affect the fish stock as a whole. 
For instance, how will protecting spawning BFT help rebuild the stock 
if it results in increased discards of non-spawning adults, juvenile, 
and sub-adult BFT along the eastern seaboard? More information is 
needed to further understand how to manage this species given its 
complex migratory patterns, life history, and age structure. NMFS is 
also considering developing incentives that would dissuade fishermen 
from keeping incidentally caught BFT, particularly spawning BFT, in the 
Gulf of Mexico. This may involve research on how changes in fishing 
practices may help reduce bycatch of non-target species as well as the 
tracking of discards (dead and alive) by all gear types. In addition, 
sea surface temperatures in the Gulf of Mexico have recently been 
thought to be associated with congregations of BFT and putative BFT 
spawning grounds in the Gulf of Mexico (Block, pers. comm.). NMFS 
intends to investigate the variability associated with sea surface 
temperatures as well as the temporal and spatial consistency of the 
association of BFT with these temperature regimes. By better 
understanding what influences the distribution and timing of BFT in the 
Gulf of Mexico, NMFS can work on developing tailored management 
measures over space and time to maximize ecological benefits while 
minimizing economic impacts to the extent practicable.
    Comment 3: NMFS received several comments regarding additional 
closures to consider including: NMFS should consider a time/area 
closure for longlining from the 35\th\ parallel to the 41st parallel, 
from the 30 fathom line to the 500 fathom line, from June 15 to 
September 30; NMFS should consider longline closures around San Juan, 
Puerto Rico and other areas around Puerto Rico; NMFS should pressure 
the states north of the North Carolina closed area to close their state 
waters during April through July 31 to protect juvenile sandbar sharks; 
since the sandbar shark HAPC includes a major U.S. nursery area for 
this species, NMFS should close the Federal waters out to 10 fathoms 
from April to July 31 each year; NMFS should reevaluate its decision 
not to close the Northeast Central statistical area proposed as 
Alternative A14 in the June 2004 SEIS; and, Georgia CRD requests either 
the closure of the EEZ off Georgia to gillnet gear to facilitate state 
enforcement and management efforts or the requirement for shark gillnet 
vessels to carry VMS year-round to facilitate Georgia's cooperative 
state/Federal enforcement efforts.
    Response: While additional areas could be considered for time/area 
closures, NMFS considered a range of different closures that 
encompassed the major areas of bycatch for the greatest number of 
species of concern. Due to the number of bycatch concerns regarding the 
pelagic longline fishery and the availability of data, most of the 
analyses for potential closures focused on the pelagic longline 
fishery. Although some alternatives, such as preferred alternative B4, 
affect additional HMS fisheries such as the recreational fishery. The 
majority of the areas were initially selected by plotting and examining 
the HMS logbook and Pelagic Observer Program (POP) data from 2001 
[dash] 2003 to identify areas and times where bycatch was concentrated. 
When identifying areas to consider, NMFS also took into account 
information received in a petition for rulemaking to consider an 
additional closure (alternative B2(c)) to reduce BFT discards in a 
reported spawning area in the Gulf of Mexico (Blue Ocean Institute et 
al., 2005; Block et al., 2005), and a settlement agreement relating to 
white marlin, which was approved by the court in Center for Biological 
Diversity v. NMFS, Civ. Action No. 04-0063 (D.D.C.). Using the 
preferred alternative B5, NMFS may consider additional closures, 
including closures for juvenile sandbar sharks and closures for other 
gear types, including gillnets and/or recreational gear, in future 
rulemakings, as needed.
    Comment 4: NMFS received several comments in favor of maintaining 
existing time/area closures. These comments included: time/area 
closures should be used to promote conservation of all HMS species; 
marine sanctuaries need to be established for all species of fish; 
these areas need to remain closed until the fishery is rebuilt to the 
1960s levels that existed prior to the overcapitalization of this 
fishery; as a result of the existing closures, overall discards have 
declined by as much as 50 percent so NMFS should continue to expand the 
existing closures; the reductions in bycatch as a result of the 
existing closures benefit a wide range of species; current closed areas 
are effective, based upon recent increases in swordfish size and weight 
in the deep-water recreational swordfish fishery; and suggestions by 
the industry that the closed area goals have been met because swordfish 
are rebuilt ignore the broader purpose and benefit of the closures.
    Response: NMFS agrees that the existing closures have effectively 
reduced the bycatch of protected species and non-target HMS, and have 
provided positive ecological benefits. NMFS prefers to keep the 
existing closures in place at this time. For example, the overall 
number of reported discards of swordfish, BFT, and bigeye tunas, 
pelagic sharks, blue and white marlin, sailfish, and spearfish have all 
declined by more than 30 percent. The reported discards of blue and 
white marlin declined by about 50 percent, and sailfish discards 
declined by almost 75 percent. The reported number of sea turtles 
caught and released declined by almost 28 percent. However, these 
analyses are based on J-hook data, and the fishery is required to use 
circle hooks. It is possible that the impact of such closures since 
implementation of circle hooks may be greater in ecological benefits 
than expected. If this happens,

[[Page 58068]]

NMFS may not need to implement new closures and may be able to reduce 
existing closures. NMFS currently only has final, quality controlled 
HMS logbook data on the catch associated with circle hooks from July 
through December of 2004. NMFS anticipates having final, quality 
controlled 2005 HMS logbook data in the summer of 2006. At that time, 
NMFS will examine and analyze the effect of circle hooks on catch rates 
and bycatch reduction. Any changes to the existing closures would occur 
through a proposed and final rulemaking using the criteria in the 
preferred alternative B5.
    Comment 5: NMFS received a number of comments in opposition to 
closures including: the effectiveness of time/area closures as a 
management tool to address bycatch issues has been exhausted; bycatch 
measures other than time/area closures should be considered; closures 
are not conservation, but reallocation to prohibit one hook and line 
gear (especially, circle hook gear) while allowing another hook and 
line gear (especially, more harmful J-style hook gear and live 
baiting); these areas were closed to rebuild the now fully rebuilt 
swordfish stock; an alternative to a full area closure could be to 
conduct an experimental fishery to test gear modifications - if the 
modifications do not work then put in a full closure; and the pelagic 
longline industry cannot withstand additional time/area closures.
    Response: NMFS does not believe that the effectiveness of time/area 
closures as a management tool has been exhausted. The existing closures 
have effectively reduced the bycatch of protected species and many non-
target HMS, and have provided positive ecological benefits. For 
example, the overall number of reported discards of swordfish, BFT and 
bigeye tunas, pelagic sharks, blue and white marlin, sailfish, and 
spearfish have all declined by more than 30 percent. The reported 
discards of blue and white marlin declined by about 50 percent, and 
sailfish discards declined by almost 75 percent. The reported number of 
sea turtles caught and released declined by almost 28 percent. Thus, 
the current time/area closures have had positive ecological impact by 
reducing the overall bycatch of non-target and protected species. 
However, NMFS recognizes that the current closures have had an impact 
on retained species' landings as well. For example, from 1997 to 2003, 
the number of swordfish kept declined by nearly 28 percent, the number 
of yellowfin tuna kept declined by 23.5 percent, and the total number 
of BAYS kept (including yellowfin tuna) declined by 25.1 percent. Such 
declines in landings have resulted in negative economic impacts for the 
fleet and may explain the overall decline in effort by the Atlantic PLL 
fishery from the pre- to post-closure period. Thus, while time/area 
closures play an important part in resource management, NMFS does not 
prefer to implement new closures, except for the Madison-Swanson and 
Steamboat Lumps Marine Reserves, until NMFS can assess the cumulative 
effect of the current time/area closures and circle hooks. In addition, 
NMFS is waiting for additional information regarding the status of the 
PLL fleet after the devastating hurricanes in the Gulf of Mexico during 
the fall of 2005. A portion of the PLL fleet was thought to be severely 
damaged or destroyed during the 2005 hurricane season. Until NMFS can 
better estimate the current fishing effort and potential recovery of 
the PLL fleet, NMFS believes that it is premature to implement any new 
time/area closures, particularly on the PLL fleet.
ii. BFT/Gulf of Mexico
    Comment 6: NMFS received comments regarding time/area closures to 
protect BFT spawning areas in the Gulf of Mexico (Alternatives B2(c) 
and B2(d)). Some of these comments suggested NMFS should consider 
different months or permutations of months between January and August. 
Other comments included: NMFS should implement additional measures to 
protect the Atlantic BFT biomass, especially spawning fish in the Gulf 
of Mexico; NMFS should consider closing the Gulf of Mexico to protect 
spawning BFT and analyze different time periods in combination with the 
northeast closures during months of high discards or high CPUE that 
might address effects on loggerhead sea turtles; an area south of 
Louisiana surrounding known BFT spawning areas should be closed to all 
longline fishing for a reasonable period of time -- at a minimum this 
should include the area identified in Alternative B2(c); the study in 
the journal ``Nature'' firmly establishes the time and location of the 
spawning season and affords NMFS the opportunity to close a hot spot 
based on the best available science; Japan has recommended a longline 
closure of the entire Gulf of Mexico at ICCAT; NMFS should immediately 
initiate interim or emergency action to close the longline fishery in 
the Gulf of Mexico, starting in January of 2006 that would be effective 
for six months each year from January through June; NMFS should explain 
why the ecological benefits of closing the longline fishery in the Gulf 
of Mexico during BFT spawning season, as described in Alternative 
B2(c), would be minimal; why does NMFS assume that a longline closure 
in the Gulf of Mexico would cause a redistribution of effort to areas 
where BFT discards could increase; and, what are the positive and 
negative economic consequences of allowing longline fishing to continue 
in the Gulf of Mexico during BFT spawning season?
    Response: NMFS considered a wide range of alternatives ranging from 
maintaining existing closures (No Action) to a complete prohibition of 
PLL gear in all areas in order to reduce the bycatch and bycatch 
mortality of non-target HMS and protected species, such as sea turtles, 
in Atlantic HMS fisheries. After comparing the potential bycatch 
reduction for all of the closures that NMFS initially considered (see 
Chapter 2 of the FEIS for a description of alternatives), NMFS chose 
five closures with the highest overall bycatch for further analysis. 
Alternative B2(c), closing 101,670 nm\2\ in the Gulf of Mexico from 
April through June, was chosen for analysis in response to a petition 
received by NMFS from several conservation organizations requesting 
consideration of a closure of the ``Gulf of Mexico BFT spawning area'' 
(Blue Ocean Institute et al., 2005). The times and areas analyzed for 
alternative B2(c) were directly from the petition. Alternative B2(d) 
was chosen for analysis in order to determine if any other closure, or 
combination of closures, would be more effective at reducing bycatch 
than some of the other alternatives considered. The analyses indicated 
that almost all of the closures and combinations of closures considered 
for white marlin, BFT, or sea turtles would result in a net increase in 
bycatch for at least some of the primary species considered when 
redistribution of fishing effort was taken into account. In addition, 
the predicted reduction in bycatch when redistribution of fishing 
effort was taken into account was typically less than 30 percent for 
any given species with overall reduction in the number of individual 
species being very low.
    According to Pelagic Observer Program (POP) data, without 
redistribution of effort, alternative B2(c) would reduce discards of 
all non-target HMS and protected resources from a minimum of 2.3 
percent for spearfish to a maximum of 25.0 percent for other sea 
turtles (comprised of green, hawksbill, and Kemp's ridley sea turtles). 
Without redistribution of effort, the logbook data indicate that 
alternative B2(c) would potentially reduce discards of all of the 
species being considered from a

[[Page 58069]]

minimum of 0.8 percent for pelagic sharks to a maximum 21.5 percent for 
BFT. With redistribution of effort, however, bycatch was predicted to 
increase for all species except leatherback and other sea turtles. Even 
BFT discards, which showed a fairly dramatic decline without 
redistribution of effort, were predicted to increase by 9.8 percent 
with redistribution of effort. Alternative B2(d) would prohibit the use 
of PLL gear by all U.S. flagged-vessels permitted to fish for HMS in a 
162,181 nm\2\ area in the Gulf of Mexico west of 86 degrees W. long. 
year-round, thus eliminating an area where approximately 50 percent of 
all effort (Atlantic, Gulf of Mexico, and Caribbean) and 90 percent of 
all effort in the Gulf of Mexico has been reported in recent years 
(2001 [dash] 2003). Without the redistribution of effort, the closure 
could have resulted in large reductions in all non-target HMS, ranging 
from a 10.1 percent reduction in loggerheads to 83.5 percent reduction 
in spearfish discards. With the redistribution of effort, NMFS 
predicted a decrease in discards of blue marlin (20.3 percent or 497 
discards/over three years; annual estimates can be obtained by dividing 
by three), sailfish (26.8 percent or 276 discards/over three years), 
and spearfish (73.3 percent or 276 discards/over three years). However, 
given the size and timing of this closure (i.e., year-round), NMFS also 
predicted an increase in white marlin discards (0.3 percent or 10 
discards/over three years), loggerhead sea turtle interactions (65.5 
percent or 117 turtles/over three years), BFT discards (38 percent or 
614 discards/over three years), swordfish discards (31.9 percent or 
11,718 discards/over three years), and bigeye tuna discards (84.8 
percent or 853 discards/over three years).
    Other alternatives, such as alternative B2(b), which would close a 
much smaller area in the Northeastern United States, could have greater 
benefits in terms of the number of BFT discards reduced. Although 
alternative B2(b) is not considered a BFT spawning area, data from the 
POP program indicate that large fish (>171 cm TL) are present in the 
area. Additionally, there is evidence to indicate that the area is 
utilized as a feeding and staging area by BFT prior to migrating to the 
Gulf of Mexico to spawn (Block et al., 2005). Hence, while NMFS 
recognizes that the same proportion of western spawning BFT would not 
be protected from a closure in the Northeast as one in the Gulf of 
Mexico, potentially a small proportion of western spawning-size BFT 
could be protected by a closure like B2(b), especially given the 
prevalence of larger individuals in Northeast area from the POP data. 
Therefore, a closure like B2(b) may be able to protect a few spawning-
size individuals as well as pre-spawners, or sub-adults, which are also 
valuable age classes with regard to the stock (although, presumably, 
there is a mixture of eastern and western origin fish in this area, and 
a closure in this area may protect sub-adults of western as well as 
eastern origin). Furthermore, the total proportion of dead discards in 
the Northeast was similar to the Gulf of Mexico. In the Northeast, 48 
percent (219 out of 461) of all BFT discards from 2001 [dash] 2003 were 
discarded dead, whereas 53 percent (249 out of 470) of all BFT discards 
from the Gulf of Mexico were discarded dead. Given the high number of 
BFT discards in the Northeast, a smaller closure there may provide 
similar ecological benefit compared with a closure in the Gulf of 
Mexico (depending on post-release survival rates in the two areas), and 
would minimize the economic impacts on the fleet.
    NMFS will continue to pursue alternatives to reduce bycatch of 
spawning BFT. NMFS has adopted all of the ICCAT recommendations 
regarding BFT, a rebuilding plan is in place domestically for this 
species, and NMFS has implemented measures to rebuild this overfished 
stock. NMFS is currently trying to assess how protecting one age class 
at the potential detriment of other age classes will affect the fish 
stock as a whole. For instance, how will protecting spawning BFT help 
rebuild the stock if it results in increased discards of non-spawning 
adults, juveniles, and sub-adult BFT along the eastern seaboard? 
Therefore, more information is needed to further understand how to 
manage this species given its complex migratory patterns, life history, 
and age structure. As described above in Comment 2, NMFS is also 
considering developing incentives that would dissuade fishermen from 
keeping incidentally caught BFT, particularly spawning BFT in the Gulf 
of Mexico.
    Comment 7: NMFS received several comments regarding the biology of 
spawning BFT in the Gulf of Mexico. These comments included: the 
management measures currently in place do not protect spawning BFT or 
create the conditions necessary for BFT to survive, reproduce, and 
increase their population; under current U.S. regulations, almost half 
the BFT landed by longline fishermen come from the Gulf of Mexico when 
spawning fish are present which results in a significant de facto 
directed fishery; warm water in the Gulf of Mexico poses particular 
risks to BFT captured on longline gear due to the physiological stress 
caused in warm, low oxygen waters; and the spawning fish in this time 
and place are more valuable to the population than at other times of 
year.
    Response: Although NMFS does not prefer alternative B2(c), or any 
other closure specific to spawning BFT in the Gulf of Mexico at this 
time, NMFS plans to pursue alternatives to reduce bycatch in the Gulf 
of Mexico, especially for spawning BFT. Such actions could improve 
international rebuilding efforts of this species. NMFS is also 
considering developing incentives that would dissuade fishermen from 
keeping incidentally caught BFT, particularly spawning BFT, in the Gulf 
of Mexico. This may involve research on how changes in fishing 
practices may help reduce bycatch of non-target species as well as the 
tracking of discards (dead and alive) by all gear types. In addition, 
sea surface temperatures in the Gulf of Mexico have recently been 
thought to be associated with congregations of BFT and putative BFT 
spawning grounds in the Gulf of Mexico (Block, pers. comm.). NMFS 
intends to compare sea surface temperature data and logbook and/or 
observer data in order to investigate the variability associated with 
sea surface temperatures as well as the temporal and spatial 
consistency of the association of BFT with these temperatures regimes. 
For this investigation, NMFS will use existing data and will likely 
work with scientists to collect additional data and/or conduct 
experiments, as needed. By better understanding what influences the 
distribution of BFT in the Gulf of Mexico, NMFS can tailor management 
measures over space and time to maximize ecological benefits while 
minimizing economic impacts, to the extent practicable.
    Comment 8: NMFS should outline the methods and mortality rates used 
to estimate dead discards as reported to ICCAT, and comment on the 
likely associated uncertainty. The current regulations are failing to 
implement key provisions of the ICCAT rebuilding plan, in violation of 
ATCA. The model used by NMFS in its Draft Consolidated HMS FMP assumes 
that the reproductive value of western Atlantic BFT in the Atlantic 
Ocean off the northeastern United States later in the year is 
equivalent to that of BFT from March-June in the Gulf of Mexico. This 
is a faulty and risky assumption. Does the analysis in the Draft 
Consolidated HMS FMP take into account the current low stock status of 
western Atlantic BFT? The Draft Consolidated HMS FMP

[[Page 58070]]

is flawed when it does not prefer closing BFT spawning grounds because 
it erroneously analyzes the closure primarily with regard to minimizing 
bycatch to the extent practicable. In fact, the primary legal duty 
falls under the need to rebuild the western Atlantic BFT population in 
as short a period of time as possible. Overfishing continues at high 
rates and the model used for the rebuilding program is unrealistically 
optimistic.
    Response: The estimates of discards used in the analyses include 
both live and dead discards, as reported by fishermen in logbooks. 
While NMFS ultimately used logbook data for the time/area analyses, 
NMFS also compared estimates of discards from the POP data. As 
described in the responses to comments 31 and 32 of this section, NMFS 
did not develop mortality estimates from the data. Rather, NMFS 
evaluated percent change in total discards as the measure of the 
effectiveness of potential time/area closures. NMFS disagrees that the 
current regulations are failing to implement provisions of the 
rebuilding plan. NMFS has adopted all of the ICCAT recommendations 
regarding BFT, a rebuilding plan is in place domestically for this 
species, and NMFS has implemented measures to rebuild this overfished 
stock. For the PLL fishery, fishermen are not allowed to target any BFT 
regardless of the size of the BFT. Thus, the model used by NMFS to 
calculate discards in the PLL fishery did not make any assumptions 
about the reproductive value of BFT caught in the PLL fishery. Rather, 
the intent of examining different closures was to maximize the 
potential reduction in bycatch of the PLL fishery for the greatest 
number of species, while minimizing losses in target catch in the PLL 
fishery.
    Comment 9: NMFS received a comment that the area in the ``Nature'' 
journal study extends beyond the U.S. EEZ and so should the time/area 
closure considered in the Draft Consolidated HMS FMP. There is no legal 
reason to limit the closure to the U.S. EEZ.
    Response: While NMFS has analyzed closures beyond the U.S. EEZ 
(e.g., the Northeast Distant closed area) in the past, except for two 
relatively small areas, the U.S. EEZ in the Gulf of Mexico abuts the 
Mexican EEZ. U.S. fishermen are not allowed to fish in the Mexican EEZ, 
and NMFS does not have the legal authority to regulate foreign 
fisheries that operate outside of the U.S. EEZ. As such, the analyses 
in the Final HMS FMP were limited to the U.S. EEZ in the Gulf of Mexico 
utilizing logbook and POP data from the U.S. PLL fishery. Data that 
includes fishing effort in other countries EEZs would be included in 
any analyses conducted by ICCAT, as needed.
    Comment 10: Demographics in the Gulf of Mexico have changed due to 
last summer's hurricanes. No one knows what the impacts of that will 
be. NMFS should not rush into changes in the Gulf of Mexico that are 
not necessary.
    Response: NMFS is aware that there have been significant impacts in 
the Gulf of Mexico as a result of the 2005 hurricanes, which may take 
time to be fully realized. After carefully reviewing the results of all 
the different time/area closures analyses, and in consideration of the 
many significant factors that have recently affected the domestic PLL 
fleet, NMFS does not prefer to implement any new closures, except the 
complementary measures in the Madison-Swanson and Steamboat Lumps 
closed areas at this time. As described above in the response to 
Comment 2 in this section, this decision is based on a number of 
reasons including the potential impacts of the hurricanes on the PLL 
fleet.
iii. White Marlin
    Comment 11: NMFS received several comments in support of additional 
time/area closures to protect white marlin. Comments included: NMFS 
should consider a closure for white marlin in the mid-Atlantic; NMFS 
has never implemented a time/area closure for PLL fishing specifically 
to reduce blue and white marlin, or sailfish bycatch even though 
exceedingly high levels of bycatch occur; and NMFS must reduce marlin 
bycatch by closing areas to longline fishing when and where the most 
bycatch continues to occur to avoid a white marlin ESA listing.
    Response: While NMFS has never implemented a closure to 
specifically reduce bycatch of blue and white marlin, current closures 
(the Northeastern U.S. closure, the DeSoto Canyon closure, the 
Charleston Bump, the East Florida Coast closures, and the Northeast 
Distant closed area) have resulted in large decreases in blue and white 
marlin discards from PLL gear, and billfish were considered in the 
analyses of these closures. Percent change in discards from the HMS 
logbook data before (1997 [dash] 1999) versus after (2001 [dash] 2003) 
the closures that were implemented showed an overall 47.5 percent 
decrease in white marlin discards and an overall 50.3 percent decrease 
in blue marlin discards. In addition, NMFS banned live bait in the Gulf 
of Mexico for PLL vessels to help reduce billfish bycatch on August 1, 
2000 (65 FR 47214). In the Draft Consolidated HMS FMP, NMFS considered 
areas specifically for white marlin, per a settlement agreement 
relating to white marlin (Center for Biological Diversity v. NMFS, Civ. 
Action No. 04-0063 (D.D.C.)). Based on the HMS logbook and POP data 
from 2001 [dash] 2003, potential time/area closures, other than the 
areas outlined in the settlement agreement, were predicted to result in 
larger ecological benefits for all of the species considered, including 
white marlin. Ultimately, NMFS chose to further analyze time/area 
closure boundaries that included the areas of highest interactions for 
a number of species. However, based on the results of these analyses 
and for the reasons discussed under the response to Comment 2, NMFS 
chose not to implement any new closures at this time beside the 
complementary measures in the Madison-Swanson and Steamboat Lumps 
Marine Reserves.
    Comment 12: NMFS received a number of comments on alternative B2(c) 
including: Alternative B2(c) corresponds to the location of significant 
incidental catches of white marlin and leatherback sea turtles, so NMFS 
should consider that area for closures, effort restrictions, or 
stricter gear requirements rather than be paralyzed in the search for a 
single time/area closure that will address all bycatch reduction needs 
for more than a dozen species; NMFS should consider closed areas in the 
western Gulf of Mexico because that is where marlin are being killed; 
Alternative B2(c) should be closed from June through August to protect 
the greatest abundance of billfish in the Gulf of Mexico; the Draft 
Consolidated HMS FMP does not propose a closure big enough or long 
enough to meaningfully reduce billfish bycatch; U.S. and Japanese data 
show that the bycatch of billfish is higher in the Gulf of Mexico than 
in any other part of the commercial fishery, and the closures to 
protect blue and white marlin in the Gulf of Mexico could save more of 
these species than any other closure in the entire United States, yet 
NMFS did not consider that there would be enough positive impact to 
consider implementing a closure.
    Response: As described above in Comment 6 of this section, NMFS 
examined alternative B2(c) specifically in response to a petition for 
rulemaking regarding protection of spawning BFT. Under the full 
redistribution of fishing effort model for B2(c) (fishing effort 
distributed to all open areas), NMFS predicted an increase in white 
marlin discards (7.0 percent or 221 discards/over three years; annual 
estimates can

[[Page 58071]]

be found by dividing by three), blue marlin discards (2.0 percent or 50 
discards/over three years), sailfish discards (4.4 percent or 45 
discards/over three years), loggerhead sea turtle interactions (23.5 
percent or 42 turtles/over three years), BFT discards (9.8 percent or 
158 discards/over three years), swordfish discards (6.0 percent or 
2,218 discards/over three years), and bigeye tuna discards (1.7 percent 
or 18 discards/over three years). Under the second scenario of 
redistributed effort (redistribution in the Gulf of Mexico and Area 6), 
NMFS predicted increases in blue marlin discards (0.7 percent or 20 
discards/over three years), sailfish discards (21.7 percent or 283 
discards/over three years), spearfish discards (2.0 percent or 10 
discards/over three years), large coastal sharks (12.8 percent or 2,454 
discards/over three years), swordfish tuna discards (5.0 percent or 
2,109 discards/over three years), and bigeye tuna discards (0.6 percent 
or 7 discards/over three years). Although white marlin discards were 
predicted to decrease under the second scenario evaluated (by 2.6 
percent or 98 discards/over three years), there were potential negative 
ecological impacts of B2(c) for other species considered under the 
different scenarios of redistributed effort. Therefore, NMFS does not 
prefer alternative B2(c) at this time.
    Based on a submission by the Japanese at ICCAT on BFT management 
(Suzuki and Takeuchi, 2005), the proposed closures and subsequent 
ecological benefits were based on closing the entire Gulf of Mexico and 
did not consider redistribution of fishing effort. As described above 
in Comment 9 of this section, NMFS has no jurisdiction to close the 
Mexican EEZ, and U.S. PLL vessels are prohibited from fishing in the 
Mexican EEZ. NMFS also believes it is critical to consider the 
redistribution of fishing effort before implementing management 
measures, such as time/area closures, because potential increases in 
discards and bycatch can result from time/area closures as effort is 
moved to remaining open areas. Additionally, as described above in the 
response to Comment 3 and elsewhere in this document, NMFS is 
considering future management measures to minimize bycatch of non-
target HMS in the Gulf of Mexico.
    Comment 13: Longlining should be banned off the East Coast from 
June to September when white marlin are present in this area.
    Response: NMFS currently has several closures along the eastern 
seaboard specifically for pelagic and bottom longline. These consist of 
the Northeastern United States closed area, which is closed to pelagic 
longlining during the month of June; the mid-Atlantic Shark Closure, 
which is closed from January through July to bottom longline gear; the 
Charleston Bump closed area that is closed to PLL gear from February 
through April; and the East Florida Coast closure that is closed year-
round to PLL gear. The Florida East Coast (FEC), the Mid-Atlantic Bight 
(MAB), and the Northeastern Coastal (NEC) statistical reporting areas 
cover the extent of the U.S. Atlantic PLL logbook reporting areas along 
the East Coast. Comparing the number of discards for the months of July 
through December between the pre-closure period 1997 [dash] 1999 and 
the period 2001 [dash] 2003, when closures were in effect, reported 
landings of white marlin decreased by 95.4 percent in the FEC, 53.4 
percent in the MAB, and 77.8 percent in the NEC. Therefore, while NMFS 
has not implemented a closure for white marlin specifically along the 
East Coast, data show a substantial decrease in white marlin discards 
likely resulting from the current time/area closures along the eastern 
seaboard.
iv. Current Closed Areas
    Comment 14: NMFS received several comments regarding the East 
Florida Coast closed area. These comments are: NMFS should prohibit all 
commercial fishing for swordfish in the East Florida Coast closed area; 
NMFS should eliminate all commercial shark fishing in the East Florida 
Coast closed area; NMFS should impose a 20-mile limit for the entire 
East Florida Coast that would prohibit commercial fishing in the area; 
NMFS should set a policy for the East Florida Coast closed area that 
allows for recreational swordfish hook and line fishing for a three to 
four month period or adopt management measures that allow for 
recreational swordfish hook and line fishing only on an every other 
year basis; NMFS needs to protect the Florida east coast because it is 
a nursery area for juvenile swordfish; NMFS should re-adjust the 
offshore border of the East Florida Coast Closed Area to allow PLL 
vessels a reasonable opportunity to harvest its ICCAT quotas; and, NMFS 
should reopen the offshore border because the inshore and Straits of 
Florida portions that will remain closed afford adequate ongoing 
protection for undersized swordfish and other bycatch.
    Response: NMFS closed the East Florida Coast closed area to PLL 
gear effective in 2001 (August 1, 2000, 65 FR 47214) in order to reduce 
bycatch of HMS and other species by PLL gear. One reason NMFS closed 
that area was because it is a swordfish nursery area and many of the 
swordfish being caught by PLL fishermen were undersized and therefore 
discarded dead. However, the goal of the closures was to reduce bycatch 
in general in the PLL fishery, and analyses conducted for that 
rulemaking also indicated that closing the area to PLL gear would 
reduce bycatch and discards of other species as well. The closure was 
not intended to be for all commercial fishing or to be permanent. Nor 
was the closure meant to allow only recreational fishing in that area. 
Because the area is a swordfish nursery area, it is likely that any 
fishing gear in that area, particularly those fishing for swordfish, 
will catch undersized swordfish that must be discarded, as well as 
juvenile swordfish that meet the legal minimum size. The criteria in 
this final rule will allow NMFS to consider closing the East Florida 
Coast to other gears to reduce bycatch or for other reasons, or to 
modify the closed area to PLL gear to either expand or reduce it, as 
needed. NMFS considered modifications to the closed area to allow PLL 
fishermen into an area that they claimed had swordfish larger than the 
minimum size. The analyses for this rulemaking concluded that swordfish 
in the potential re-opened area are significantly larger than those in 
the remaining closed area; however, the analyses also indicated 
potential increases in marlin bycatch. For this reason and others, NMFS 
is not modifying the East Florida Coast closed area at this time. NMFS 
may consider changes to that area or to the gears allowed to fish in 
that area in future rulemakings.
v. Modifications to Current Closed Areas
    Comment 15: NMFS received comments supporting and opposing 
modifications of the existing HMS time/area closures to allow 
additional fishing effort into these areas. Comments in support of 
modifying the existing closures include: the existing time/area 
closures to protect small swordfish are no longer needed and should be 
reduced in size and/or duration or eliminated all together; NMFS 
inaction to adjust the offshore closure borders prevents U.S. fishermen 
from having a reasonable opportunity to harvest its ICCAT quota share, 
contrary to ATCA and the Magnuson-Stevens Act; NMFS needs to re-examine 
the area closures and provide immediate modifications to at least some 
areas. Other areas may require a period of heightened monitoring to 
determine the effects of new circle hook gear and careful handling/
release procedures; NMFS should continuously monitor whether

[[Page 58072]]

the existing closed areas are having the desired effect to determine 
whether modifications can occur; NMFS should reevaluate the PLL gear 
time/area closures for their necessity and effectiveness and redevelop 
these closures to include prohibiting all HMS hook and line fishing if 
the biological justification warrants retaining any such closures; NMFS 
should consider modifying the offshore borders of existing closures in 
several areas where the deeper depth contours provide relatively clean 
directed fishing; NMFS should have considered modifying the Desoto 
Canyon; opening the area offshore of the 250 fathom curve in the Desoto 
Canyon could benefit YFT fishermen; and if NMFS allows vessels into 
closed zones by using Vessel Monitoring Systems (VMS), then VMS should 
also be used to implement and enforce additional new closures that 
follow oceanic bottom contour lines. Comments opposed to modifying the 
existing HMS closures include: NMFS should not rely on old logbook data 
to modify existing closures; the existing closures should not be 
modified; NMFS should not consider areas that may serve as nursery 
areas for North Atlantic swordfish; NMFS should not consider opening 
the DeSoto Canyon areas to longlining because this would adversely 
affect the health of the fisheries ecologically and would prove 
detrimental to the economic interests of the commercial fleet; and, the 
figures in this section show longline sets after the 2000 closure of 
the Desoto Canyon and the harvest of BFT dead discards, which is 
illegal, so how do individuals make these sets and record them in the 
logbook?
    Response: NMFS considered modifications to the current time/area 
closures, including modifications to the DeSoto Canyon, and is 
continuously monitoring the effectiveness of the current closures. As 
described above in the response to Comments 4 and 5 and elsewhere in 
this document, an analysis of pre-closure and post-closure data 
indicate that the existing closures have effectively reduced the 
bycatch of protected species and non-target HMS, and provided other 
positive ecological benefits. The analysis also indicated that none of 
the modifications would have increased the retained catch enough to 
alleviate concerns about portions of the swordfish quota remaining 
uncaught. Specifically for the DeSoto Canyon, NMFS considered modifying 
the existing DeSoto Canyon time/area closure boundary to allow PLL gear 
in areas seaward of the 2000 meter contour from 26[deg] N lat., 
85[deg]00' W long., to 29[deg] N lat., 88[deg]00' W long. (alternative 
B3(d)). However, the average swordfish size was significantly smaller 
in the area to be reopened (average size = 108 cm LJFL) compared to the 
area to remain closed (average size = 116 cm LJFL; P = 0.03). Both 
average swordfish sizes are smaller than the minimum size limit of 119 
cm LJFL. Therefore, NMFS believes that modifying the Desoto Canyon 
closure could increase swordfish discards. In addition, new circle hook 
management measures were put into place in 2004, and NMFS is still 
assessing the effects of circle hooks on bycatch rates for HMS. Until 
NMFS can better evaluate the effect of circle hooks on bycatch 
reduction, especially with regards to protected species interaction 
rates, the Agency is not modifying the current time/area closures. 
Furthermore, as described in the response to Comment 14 above, the 
current time/area closures were established to reduce bycatch of more 
than just swordfish. Nonetheless, if the upcoming ICCAT swordfish stock 
assessment indicates the species is rebuilt, NMFS may reconsider 
modifying the existing closures taking into consideration things such 
as the impact of circle hooks and protected species interaction rates. 
Finally, while VMS can provide NMFS with information that allows a 
vessel to transit a closed area, closed areas with boundaries that 
track oceanic contour lines would often be too irregularly shaped to be 
easily enforced despite the use of VMS. Geometric coordinates greatly 
aid in enforcement of time/area closures.
    The baseline that NMFS has used to calculate bycatch reduction 
associated with current time/area closures is the U.S. Atlantic HMS 
logbook data just prior to the implementation of the closures (1997 
[dash] 1999). NMFS feels this best reflects the status of the stocks at 
the time of the closures and more current data is not available because 
PLL gear has been prohibited in these areas since 2000 or 2001, 
depending on the closure. The figures referred to by the commenter 
(Figures 4.3 and 4.8 in the Draft Consolidated HMS FMP) incorrectly 
showed all of the 1997 [dash] 1999 reported sets rather than the 
intended 2001 [dash] 2003 reported sets. The figures have been 
corrected. Very few, if any, sets have been reported in the Desoto 
Canyon since 2000. The figures in the Final Consolidated HMS FMP only 
show where BFT discards occurred for PLL vessels from 2001 through 
2003. NMFS also implemented the use of a vessel monitoring system (VMS) 
for all PLL vessels on September 1, 2003 (68 FR 45169). With this 
monitoring system, NMFS has been able to determine if PLL vessels are 
placing sets in closed areas. VMS has helped alert enforcement of 
illegal activities occurring in closed areas under real time 
conditions, which has led to prosecution for illegal fishing in closed 
areas.
    Comment 16: We support a modification of the area described in 
alternative B3(a) (modifications to the Charleston Bump closed area). 
While the analysis shows a negligible amount of bycatch, there is an 
opportunity for catching marketable species for boats that are 
struggling and need access to this area; we support a modification of 
the area described in alternative B3(b) (modifications to the 
Northeastern U.S. closed area) because this area should never have been 
closed in the first place; the entire June BFT closure area should be 
reevaluated in light of all the mandatory bycatch reduction measures 
and the inability to harvest the U.S. BFT quota in recent years.
    Response: NMFS analyzed both alternatives B3(a) and B3(b). The 
analyses indicate that alternative B3(a) would increase swordfish catch 
by 1.1 percent and yellowfin tuna catch by 0.16 percent. However, it 
could increase the bycatch of sailfish (3.0 percent), spearfish (2.4 
percent), and white marlin (2.0 percent). Alternative B3(b) would cause 
a minimal increase in bycatch, with only a minimal increase in retained 
catch based on 1997 - 1999 data (i.e., 3 swordfish, 1 BFT, and 1 BAYS 
tuna (numbers of fish)). Therefore, NMFS is not implementing 
alternatives B3(a) and B3(b) because neither alternative would increase 
retained catches enough to alleviate concerns over uncaught portions of 
the swordfish and BFT quotas. As described in the response to Comment 
2, NMFS is not implementing any new closures, except for the Madison-
Swanson and Steamboat Lumps, or modifying any existing closures. NMFS 
may consider changes to the current time/area closures in a future 
rulemaking depending upon the results of the circle hook analyses, the 
2006 ICCAT stock assessments (BFT, swordfish, and billfish), protected 
species interaction rates, and the other criteria described in this 
final rule.
vi. Madison-Swanson/Steamboat Lumps
    Comment 17: NMFS received contrasting comments regarding preferred 
alternative B4 (implement complementary HMS management measure in 
Madison-Swanson and Steamboat Lumps Marine Reserves) including: I 
support preferred alternative B4 and the maintenance of

[[Page 58073]]

the existing closures; the Agency appears to be acting positively on 
the Gulf of Mexico Fishery Management Council's request for 
complementary closures; I support this alternative even though this 
will have virtually no significant impact on HMS fisheries because the 
area is so small; I support alternative B4 because it will make 
enforcement easier; we support alternative B4 with the following edit, 
``Maintain existing time/area closures and implement complementary 
November through April (6 months) -- Preferred Alternative''; and we do 
not support complementary closures with Madison-Swanson and Steamboat 
Lumps - the PLL industry has had to withstand numerous stringent 
measures in recent years and cannot withstand any additional closures.
    Response: NMFS is implementing alternative B4, complementary HMS 
management measures for the Madison-Swanson and Steamboat Lumps Marine 
Reserves, at the recommendation of the Gulf of Mexico Fishery 
Management Council. These closures were designed primarily to protect 
spawning aggregations of gag grouper and other Gulf reef species. 
Similar management measures are already in effect for holders of 
southeast regional permits. The complementary HMS management measures 
would close any potential loopholes by extending the closure 
regulations to all other vessels that could potentially fish in the 
areas and/or catch gag grouper and other reef fish as bycatch (e.g., 
HMS bottom longline vessels). As a result, this action is expected to 
improve the enforcement of the Madison-Swanson and Steamboat Lumps 
Marine Reserves. Only minor impacts on HMS fisheries, including the PLL 
fishery, are anticipated because the marine reserves are relatively 
small, and little HMS fishing effort has been reported in these areas. 
The suggested edit to the title of this alternative is appreciated, but 
is not necessary because the existing closures will remain in effect by 
default, absent additional action to remove or modify them.
vii. Criteria/Threshold/Baseline
    Comment 18: NMFS received several comments on using the criteria on 
current closures including: NMFS should have created these criteria 
when establishing the closed area off NC - NMFS then could have 
modified the economic impacts to the NC directed shark fishermen by 
having flexibility to reduce the time and area of the current closed 
area; and all existing closed areas should be immediately re-evaluated 
in terms of the new criteria.
    Response: NMFS used many of the criteria when establishing the 
current time/area closures. NMFS is implementing the criteria to 
clarify the decision-making process and to inform constituents about 
what NMFS would consider before implementing new time/area closures or 
modifying current time/areas closures. In addition, in this rulemaking, 
NMFS evaluated the impacts of most of the current time/area closures in 
the No Action alternative, B1, and the impacts of modifying four 
current time/area closures. Thus, NMFS has already re-evaluated some of 
the current time/area closures using the criteria. Once the criteria 
are implemented, NMFS would continue using them in future rulemakings. 
The only time/area closure that was not re-evaluated during this 
rulemaking was the mid-Atlantic shark closure off North Carolina. NMFS 
did not re-evaluate this closure because, as described in the response 
to a petition for rulemaking from the State of North Carolina (October 
21, 2005; 70 FR 61286), the closure became effective in January 2005, 
and NMFS did not have any additional information on which to reevaluate 
the conclusions of the rulemaking that established the closure 
(December 24, 2003; 68 FR 74746). However, when NMFS established the 
mid-Atlantic shark time/area closure, the Agency considered the social 
and economic impacts on directed shark fishermen, while also balancing 
reductions in the catch of juvenile sandbar sharks, the bycatch of 
prohibited dusky sharks, and the quota throughout the entire large 
coastal shark fishery. As described in this rulemaking and in previous 
rulemakings, 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 retained species. NMFS 
believes that the mid-Atlantic shark closure should accomplish these 
goals even though there may be negative economic impacts as a result of 
that closure. Once the results of the ongoing LCS and dusky shark stock 
assessment are finalized, NMFS may consider whether changes to any 
management measures are appropriate regarding LCS, including dusky 
sharks, and may reconsider the mid-Atlantic closed area in a future 
rulemaking using the criteria being implemented in this final rule.
    Comment 19: NMFS received several comments regarding research and 
closed areas including: NMFS should support additional research to 
determine where other closed areas should be placed; NMFS should 
collect data for use in establishing such criteria in open areas to the 
maximum extent possible; and there must be overwhelming reason to pay 
fishermen to use illegal gear in a closed area in the name of research 
(while still being able to sell their catch) when such studies could 
just as easily be performed in vast areas of the oceans where it is 
legal to fish in that manner.
    Response: NMFS supports research to determine how changes in 
fishing gear and/or fishing practices can reduce bycatch. Research in 
closed areas to test how changes in fishing gear and/or fishing 
practices may reduce bycatch is particularly important. Due to the 
spatial and temporal variability of HMS and the species that HMS 
interact with, the results of experiments in open areas may not always 
be applicable to closed areas. Oftentimes, these areas are ``hot 
spots'' and were closed because they are areas with high congregations 
of HMS or other species. These congregations usually occur along 
bathymetric contour lines or areas where currents interact. In order to 
scientifically test if a certain change in the gear would result in a 
significant reduction in bycatch, scientists may need to work in areas 
where there is a high degree of certainty that the gear will interact 
with the bycatch species. Testing for bycatch reduction in areas where 
there is little to no bycatch would likely require more monetary 
resources, fishermen, and time, compared with areas that are considered 
``hot spots.'' Scientists often conduct preliminary tests in open areas 
to ensure that the changes in gear or fishing methods being considered 
could work, but they may need access to closed areas at some point to 
make certain that the expected results are actually realized. 
Otherwise, NMFS might reopen a previously closed area in light of 
technological advances in bycatch reduction but not see the expected 
reduction in bycatch rates, or potentially see an increase in bycatch 
rates.
    Comment 20: NMFS received comments regarding the specific criteria 
that NMFS should consider when examining potential area closures 
including: the criteria should include the status of the stock in each 
area under consideration; the criteria should include bycatch 
baselines, targets, reduction timetables, and consider impacts on all 
HMS, with an emphasis on overfished species; what percent reduction in 
discards is required to implement a time/area closure, and on what 
basis is this threshold determined? What is the threshold that the 
Agency is trying to achieve? There are no standards; was a target 
bycatch reduction level identified; the Agency

[[Page 58074]]

should quantitatively use an optimization model to combine areas to 
achieve the optimum benefit; these criteria should be developed in a 
workshop including managers, scientists, and stakeholders to ensure 
their success; the discussion of how specific criteria would be 
developed, reviewed, and authorized is vague; overall the criteria seem 
to restrict NMFS' use of discretion in using closed areas as part of a 
comprehensive strategy to reduce bycatch and ensure sustainable 
ecosystems; and NMFS should preserve the availability of the greatest 
range of options to address its fisheries management, protected 
resources, and marine ecosystem conservation responsibilities.
    Response: NMFS already considers the status of the stocks when 
implementing time/area closures. Closed areas like the Northeastern 
United States closed area, the mid-Atlantic shark closed area, and the 
Northeast Distant closed area were all implemented to address specific 
overfished or protected species. The other closed areas, which were 
implemented to reduce bycatch in general, also considered the status of 
the stocks before implementation.
    Establishing pre-determined thresholds or target reduction goals 
for specific species, as requested in this comment, is not appropriate 
because it does not consider the impact on the remaining portion of the 
catch. Consideration of the overall catch is critical when implementing 
a multispecies or ecosystem-based approach to management. Furthermore, 
while the Magnuson-Stevens Act provides NMFS with the authority to 
manage all species, NMFS must balance the impacts of management 
measures on all managed species. National Standard 1, which requires 
NMFS to prevent overfishing while achieving on a continuing basis, the 
optimum yield from each fishery for the United States fishing industry, 
clearly applies to all species and all fisheries. Similarly, National 
Standard 9, which requires NMFS to minimize bycatch and bycatch 
mortality to the extent practicable, applies to all species and 
fisheries. By choosing not to implement specific thresholds or a 
decision matrix, NMFS retains the flexibility to balance the needs of 
all the species encountered with the fishery as a whole. If NMFS must 
manage a fishery to achieve a specific goal (e.g., a jeopardy 
conclusion regarding the PLL fishery and leatherback sea turtles), this 
flexibility allows NMFS to close certain areas or take other actions to 
achieve that goal while also protecting, to the extent practicable, the 
other species and the rest of the fishery. Without this flexibility, 
NMFS might potentially have to implement more restrictive measures to 
protect one species causing potential cascade effects (e.g., closing 
one area may increase the bycatch of another species, which could 
result in closing another area, etc.).
    This flexible approach also provides NMFS with the ability to re-
examine the need for existing closures and modify them appropriately 
based on the analyses rather than the attainment of a specific goal 
(e.g., NMFS would not have to wait for 30 percent reduction in bycatch 
to be met; it could open the closure at 25 percent, depending on the 
result of reducing bycatch of other species or other considerations, as 
appropriate). The present criteria do not preclude NMFS from 
establishing a decision matrix in the future if it could provide the 
flexibility necessary to consider all of the species involved. This may 
be more appropriate when NMFS has a longer temporal dataset on the 
simultaneous effect of circle hooks and the current time/closures. At 
this time, NMFS believes that the criteria contained in the preferred 
alternative B5 would provide the guidance needed, consistent with the 
Magnuson-Stevens Act and this FMP, to help NMFS make the appropriate 
decisions regarding the use of time/area closures in HMS fisheries. 
NMFS developed the criteria to help make the overall process of 
implementing and/or modifying current time/area closures more 
transparent, not more vague. While NMFS did not hold a workshop on 
these criteria, they were considered by multiple stakeholders during 
the scoping and public comment period for this rule and subsequently 
refined, as appropriate.
    Comment 21: NMFS received many comments regarding the use of 
criteria to open or modify closed areas. These comments included: 
criteria are needed to allow for modifications of the closed areas; I 
cannot support the preferred alternative B5, area closure framework 
alternative, because it could allow NMFS to open existing closures; 
changes to existing closed areas must, at a minimum, be conservation 
neutral; we need a mechanism to open or modify closed areas; the 
present closures appear to be larger or different from what is 
necessary; to go through the entire regulatory process to change or 
eliminate the closures takes too long and is too costly for both the 
government and the fishery.
    Response: NMFS already has the authority to modify current closed 
areas once NMFS determines that a closed area has met its original 
management goal. The existing time/area closures were not meant to be 
permanent closures. Rather, each closure was implemented with a 
specific management goal(s) in mind. Once those goals are met, NMFS may 
decide to modify or remove the time/area closure. Through the 
implementation of the criteria, and using the appropriate analyses, 
NMFS would be able to modify the current time/area closures in a more 
timely and transparent manner. No changes were made to existing time/
area closures at this time because such modifications could potentially 
result in bycatch of non-target HMS and protected resources, such as 
sea turtles. However, once NMFS better understands the effects of 
circle hooks, which were implemented fleet-wide in mid-2004, on all 
species, NMFS may consider modifying the current time/area closures. 
Such modifications would need to be either conservation neutral or 
positive.
    Comment 22: Since the East Florida Coast, Charleston Bump, and 
DeSoto Canyon closures went into effect, bycatch and fishing effort has 
been reduced. Those three closures achieved a greater than predicted 
reduction in bycatch. NMFS should use the year before the closures went 
into effect as a baseline to determine what the existing management 
measures have produced, rather than taking additional actions and 
expecting the bycatch to continually diminish. NMFS could modify 
closures and allow increases in bycatch up to the reductions expected 
as a result of the analyses that closed those areas. This would reduce 
the economic impacts on fishermen.
    Response: NMFS agrees that the current closures reduced the bycatch 
of most species more than predicted by the analyses in the rulemaking 
that originally closed the areas. NMFS used data just prior to the 
implementation of these closures (i.e., logbook data from 1997 [dash] 
1999) because the Agency felt this time series best represented the 
status of the stocks at the time the closures were implemented. NMFS 
considered modifications to these areas in this rulemaking. However, 
the current analyses indicated that bycatch of some species, such as 
marlin and sea turtles, could increase as a result of those 
modifications. Given the status of marlin and the jeopardy finding on 
leatherback sea turtles, NMFS believes that increases in the bycatch of 
those species are not appropriate. Additionally, the analyses in this 
rulemaking are based on mostly J-hook data, which are no longer in use 
in the fishery. NMFS will continue to monitor the effectiveness of the 
closures and

[[Page 58075]]

may consider modifications in the future, particularly as the amount of 
circle hook data increases.
viii. Fleet Mobility/Redistribution of Effort
    Comment 23: NMFS received several comments regarding the mobility 
of the fleet. These comments included: I do not believe that effort 
will move to the Atlantic Ocean from the Gulf of Mexico; commercial 
fishermen would rather stay home and fish for other species rather than 
relocate great distances; longline vessels are tied to communities; 
given rising fuel prices, an increase in long distance relocation seems 
unlikely; NMFS states that Vietnamese fishermen are reluctant to fish 
outside the Gulf of Mexico and uses this statement to conduct a 
separate analysis specific to the Gulf of Mexico, but NMFS applied the 
assumption to the analysis of only one alternative in the Gulf of 
Mexico when it should be applied to all GOM alternatives; how does the 
2001 NMFS VMS study support conducting a fleet-wide analysis when the 
majority of effort is in or adjacent to the homeport fishing area?
    Response: To determine fleet mobility, NMFS relied on its analyses 
described in a 2001 report that NMFS submitted to the U.S. District 
Court in response to a lawsuit filed by the fishing industry against 
NMFS for implementing the vessel monitoring system (VMS) requirement. 
That document indicated that fishermen were as likely to fish in areas 
away from their homeport as in areas immediately adjacent to their 
homeport, even without the added pressure of a closure in an area 
adjacent to their homeport. In addition, NMFS conducted a separate 
analysis in the Draft Consolidated HMS FMP for alternative B2(a) that 
limited the redistribution of effort in the Gulf of Mexico. This 
separate analysis was conducted because the area in alternative B2(a) 
was the smallest of the three closures considered in the Gulf of Mexico 
and, therefore, represented the most likely case in which fishermen 
would remain in the Gulf of Mexico. Because there would still be open 
areas in the Gulf of Mexico during this period (May through November), 
fishermen might be more likely to fish in those areas rather than 
relocate fishing effort to the Atlantic Ocean. NMFS also recognized 
that Vietnamese fishermen are reluctant to fish outside of the Gulf of 
Mexico, especially for a small time/area closure. Such limited 
redistribution of effort was not appropriate for other closures in the 
Gulf of Mexico because of their larger geographic size and longer 
temporal duration.
    However, NMFS further analyzed fleet mobility in the current 
rulemaking by examining logbook data from 2001 [dash] 2004 (this 
included only the first six months of 2004 to include only J-hook data) 
to determine the amount of vessel movement along the Atlantic coast and 
into the Gulf of Mexico. The data indicated that vessels moved out of 
the Gulf of Mexico, and that vessels sometimes fished as far away as 
the central Atlantic. Similarly, in the Atlantic, some vessels fished 
in areas far from their homeports, although movement from the Atlantic 
Ocean into the Gulf of Mexico was minimal. Additionally, there were no 
physical differences in terms of length or horsepower between vessels 
that fished inside or outside the Gulf of Mexico. Thus, NMFS concluded 
that HMS vessels continue to be highly mobile, are capable of fishing 
in areas distant from their homeports, and that the closure analyses 
would need to take into account the potential for redistribution of 
fishing effort, particularly for a potentially large closure such as 
B2(c) in the Gulf of Mexico. Based on this additional analysis of fleet 
mobility, NMFS considered different scenarios of redistribution of 
effort for alternatives B2(a), B2(b), and B2(c). Each scenario made 
different assumptions regarding where effort would redistribute, based 
on the current fleet's movement. However, NMFS recognizes that the 
increased cost of fuel and other supplies may limit the amount of 
movement by the pelagic longline fleet.
    Comment 24: NMFS received comments regarding the redistribution of 
fishing effort model used to analyze the time/area closure 
alternatives. Comments included: Does the model assume random 
distribution to other fishing grounds?; how does the redistribution of 
effort model result in more bycatch?; how does the redistribution of 
effort model work with circle hooks?; the model is based on discard 
rates, which implies some mortality.
    Response: NMFS considered a broad range of time/area closure 
alternatives that estimated potential bycatch with and without 
redistribution of fishing effort. Considering the impacts of closures 
with and without redistribution of effort provides NMFS with the 
potential range of changes in catch that could occur as a result of the 
closure(s). One end of the range assumes that all fishing effort within 
a given closed area would be eliminated (i.e., fishermen who fished in 
the closed area would stop fishing for the duration of the closure). 
Thus, the number and percent reduction in catch of both non-target and 
target species in these analyses represents the highest possible 
expected reduction. This would also represent the greatest negative 
social and economic impact that is anticipated for the industry. The 
other end of the spectrum assumes that all fishing effort in a closed 
area would be distributed to open areas (i.e., fishermen would continue 
fishing in surrounding open areas, move their businesses closer to open 
areas, or sell their permits to fishermen closer to open areas).
    Rather than random redistribution, the full redistribution model 
calculates resulting catch of target and non-target species by 
multiplying the effort that is being redistributed due to the closure 
by the average CPUE across all remaining open areas for each species. 
This amount is then subtracted from the estimated reduction inside the 
closed area (for a complete description of the methodology used for 
redistribution of effort, please see Appendix A of the Final 
Consolidated HMS FMP.) This end of the continuum would be expected to 
provide the least amount of bycatch reduction for a given closure, 
depending on the CPUE of each species in all remaining open areas. 
Oftentimes, this model provides mixed results regarding the ecological, 
economic, and social impacts because HMS and protected species are not 
uniformly distributed throughout the ocean. Therefore, a closure in one 
area might reduce the bycatch of one or two species, but may increase 
the bycatch of others. Bycatch of a particular species increases if 
that species is more abundant or more frequently caught (i.e., higher 
CPUE) in areas outside of the closed area. For example, the analyses 
indicate that a closure in the central Gulf of Mexico could reduce BFT 
and leatherback sea turtle discards because CPUE for those species is 
higher in the Gulf of Mexico than along the eastern seaboard. However, 
such a closure could increase sailfish, spearfish, and large coastal 
shark discards because the CPUE for those species is higher outside of 
the Gulf of Mexico. In reality, the actual result is expected to be 
between the results obtained from these two different considerations of 
redistributed effort. In addition, NMFS combined dead and live discards 
in these analyses, so mortality is accounted for in terms of discards. 
Given the number of species that NMFS had to consider, there was no 
single closure or combination of closures that resulted in a reduction 
of bycatch of all species considered. The data analyzed in the Draft 
Consolidated HMS FMP (2001 [dash] 2003) and additional

[[Page 58076]]

analyses in the Final Consolidated HMS FMP (2001 [dash] 2004, including 
the first six months of 2004 only) did not include circle hook data. 
The implementation of the circle hook requirement in June 2004 resulted 
in a change to the baseline. NMFS needs to fully analyze the circle 
hook data to determine the extent of bycatch reduction and the effects 
of post-release mortality resulting from this new gear requirement.
    Comment 25: How is NMFS going to address the peer review comments 
that found fault with the effort redistribution model?
    Response: Not all of the peer reviewers found fault with the 
redistribution of effort analysis. For example, one peer reviewer made 
the following comment:
    The time area closure model is based on generally accepted 
principles in fisheries science. In general such models rely on a 
set of assumptions related to static patterns of relative abundance 
at some temporal and spatial resolution, limited consideration of 
fish movements, and incomplete understanding of the effects of 
closure areas on redistribution of fishing effort. Nonetheless, such 
models can provide useful insights for comparisons of alternative 
management strategies. This is the approach taken within this draft 
EIS. Twelve combinations of seasonal and spatial closures are 
evaluated in Section 4.1.2. Without such a model there would be no 
pragmatic way of comparing the proposed closed areas. In general it 
is probably safe to assume that the limitations of the model will be 
comparable across alternatives. Thus the rankings of each 
alternative should be relatively insensitive to the assumptions.
    However, in response to another peer reviewer's comment that NMFS 
test assumptions and consider other plausible alternatives to the 
random effort redistribution model, NMFS evaluated different scenarios 
that made different assumptions regarding where effort would be 
redistributed in the Final Consolidated HMS FMP, including 
redistribution of effort in the Gulf of Mexico only for closures in the 
Gulf of Mexico, redistribution of effort in the Atlantic only for a 
closure in the Atlantic, and redistribution of effort in the Gulf of 
Mexico and the Atlantic for closures in the Gulf of Mexico. These 
scenarios were based on an analysis of the movement of fishing effort 
out of the Gulf and into the Atlantic. In order to perform this last 
analysis, NMFS examined logbooks from 2001 [dash] 2004 and tracked the 
movement of vessels out of the Gulf of Mexico into different areas of 
the Atlantic. By examining the movement of effort between the Gulf of 
Mexico and the Atlantic, NMFS was able to modify the existing full 
redistribution of effort model and apply different proportions of 
effort to the average CPUEs of species in the different areas. Using 
these additional analyses, NMFS could ask different questions about the 
assumptions of the existing model (e.g., should all fishing effort from 
a closed area be distributed to all open areas or redistributed only 
within remaining open areas of the Gulf of Mexico).
    Comment 26: The random redistribution of effort model weighs nearby 
and distant areas equally. This may artificially emphasize distant 
areas where bycatch rates are higher, and may result in unlikely 
assumptions about how the effort will shift. This model suggests that 
Gulf of Mexico vessels are mobile and might fish as far away as Florida 
but does not suggest that effort is distributed randomly or that 
significant effort would be displaced to the Northeast. To close or not 
close an area based on random redistribution of effort is not 
reasonable. We are concerned about the model given the fact that the 
data clearly show where concentrations of marlin are caught.
    Response: As described above in the response to Comment 24, the 
method used to calculate redistribution of effort and the resulting 
catch of target and non-target species is to multiply the effort that 
is being redistributed by the average catch rate (CPUE) for each 
species in all remaining open areas, and subtract it from the estimated 
reduction inside the closed area (for a complete description of the 
methodology used for redistribution of effort, please see Appendix A of 
the Final Consolidated HMS FMP.) In some cases, depending upon the 
average CPUE in open areas, this approach may emphasize distant areas 
where bycatch rates may be higher. However, in other cases, low bycatch 
rates in distant areas would not be a factor. For example, a small 
closure such as B2(a) in the central Gulf of Mexico might result in 
fishing effort being displaced into areas immediately adjacent to and 
surrounding the closed area. NMFS tried to take this into account by 
analyzing redistribution of effort only in the Gulf of Mexico for 
alternative B2(a). For larger closures in the Gulf of Mexico such as 
alternative B2(c), NMFS considered redistribution of effort in the Gulf 
of Mexico and Atlantic based on known movement of fishing vessels and 
effort into areas of the Atlantic. Finally, for a closure such as B2(b) 
located in the Atlantic, NMFS considered redistribution of effort in 
open areas of the Atlantic only. In all cases, NMFS considered the 
results of both no redistribution of effort and the full redistribution 
of effort model and assumed that the actual result of the closure would 
be somewhere between the results of the two scenarios.
    Comment 27: NMFS needs a probabilistic model for effort 
redistribution that considers things such as the history of effort.
    Response: NMFS is aware of other models that have investigated 
redistribution of effort as a result of time/area closures (i.e., 
random utility models (RUMs) used for the Hawaiian PLL fishery, and a 
closed area model used by the New England Fishery Management Council 
(NEFMC) to evaluate closures for the groundfish fishery). These types 
of models are econometric models, which predict where fishermen will 
reallocate effort based on maximizing revenues and/or profits. These 
models were not designed to be used for the current HMS PLL fishery, 
and in order for either framework to be applicable to a time/area 
analysis for the Atlantic HMS PLL fishery, NMFS would have to develop a 
specific model for the PLL fleet based on the current economics, 
fishing grounds, and fishing effort of the Atlantic HMS PLL fleet. 
Development of such a model would require considerable additional 
investment, time, and effort.
    At present, NMFS has not developed a probabilistic model that 
considers the history of effort or other complicating factors (i.e., 
trip costs, revenues or profits). Prior to developing such a model, 
NMFS would need to consider the limitations of the Agency, both 
financially and logistically, to build such a model. For example, 
despite the fairly straightforward model used in this rulemaking and 
previous time/area rulemakings to calculate redistribution of fishing 
effort, many commenters found the procedure confusing or misunderstood 
the approach and results. This confusion could become even worse if a 
more complicated model were used. Some models require substantial 
capital investment for the Agency, years to develop, and years of 
testing before they can be used. While the model used continues to be 
the best available science for the PLL fishery at present, NMFS is 
considering different options to improve the models used to analyze the 
impacts of time/area closures.
    Comment 28: NMFS has applied the redistribution model beyond its 
usefulness because the model does not describe where the vessels are 
likely to go. NMFS places an overemphasis on the dangers of 
redistribution of effort instead of making balanced recommendations 
based on both the lower and upper estimates of the model.

[[Page 58077]]

    Response: NMFS disagrees that the redistribution model has been 
applied beyond its usefulness. It is highly unlikely that NMFS could 
develop a perfect model that accurately predicts fishing behavior. The 
redistribution of effort model is useful in providing one end of a 
range of potential outcomes resulting from new closures. NMFS does not 
overemphasize the dangers of redistribution of effort, but rather 
considers it likely that fishing effort may be displaced into open 
areas and that there may be some increase in bycatch as a result. This 
is not highly speculative, but rather based on quantitative assessments 
of fishing effort, bycatch rates, and resulting ecological impacts. For 
instance, fishing effort in the open areas increased in the Gulf of 
Mexico after the implementation of the existing closures, which 
suggests that fishing effort will be displaced to other areas. 
Furthermore, NMFS does not believe that fishing effort that occurred 
historically within an area would be completely eliminated with a new 
closure. As stated above, the model used is the best available science 
for the PLL fishery; however, NMFS will continue to refine the model to 
increase its usefulness.
    Comment 29: NMFS received comments regarding effort shifts in the 
Gulf of Mexico including: effort shifts have not occurred in the Gulf 
of Mexico as predicted for other species; vessels may be offloading in 
different ports but still in the Gulf of Mexico; and the assumption 
that vessels would move out of the Gulf of Mexico and catch BFT, 
particularly spawning western BFT, is unlikely.
    Response: While there has been an overall decrease in fishing 
effort since implementation of the closures in 2000 [dash] 2001, NMFS 
has seen evidence of an increase in effort in the Gulf of Mexico during 
2001 [dash] 2004, possibly as a result of the East Florida Coast 
closure implemented in 2001, which forced fishermen who originally 
fished in the east coast of Florida into the Gulf of Mexico. The 
difference between closures implemented in 2000 and the closures being 
considered in this FMP is that many of the areas of high bycatch were 
targeted for closures in 2000 and remain closed today. NMFS is now 
analyzing an additional series of closures that may not produce the 
same tangible results that occurred after the first round of closures 
because bycatch has already been reduced substantially for many 
species. Analyses indicate that the overall number of reported discards 
of swordfish, BFT, bigeye tuna, pelagic sharks, blue and white marlin, 
sailfish, and spearfish have all declined by more than 30 percent since 
the time/area closures went into effect. Additionally, as the areas 
open to fishermen become more restricted, fishing effort will tend to 
become more and more concentrated in smaller and smaller areas where 
even low bycatch rates may result in increases in bycatch due to the 
high effort levels. Some of the closures considered in this rulemaking 
such as alternatives B2(c) and B2(d) would close very large portions of 
the Gulf of Mexico where approximately 90 percent of the historic 
fishing effort in the Gulf has occurred. Closing such a large area in 
the Gulf of Mexico would be unprecedented, and predicting the outcome 
would likewise be difficult. It should be noted that while the NED 
closure was just as large as some of the closures proposed in this 
rulemaking, the closures proposed in this rulemaking are closer to land 
and more accessible to vessels. However, NMFS disagrees with the 
comment that vessels would be unlikely to move out of the Gulf of 
Mexico in response to such an unprecedented large closure. The analyses 
indicate that fishermen currently homeported in the Gulf of Mexico move 
out of the Gulf of Mexico into the Atlantic even without the added 
incentive of a closure. Even in the highly unlikely event that 
fishermen did not move out of the Gulf of Mexico in response to a 
closure, the economic impact could force them to sell their permits to 
fishermen in the Atlantic, thereby increasing fishing effort in those 
areas. The redistribution of effort analysis in the FMP would take this 
into account.
    Comment 30: NMFS received many comments regarding where effort 
would be redistributed including: the model fails to consider 
redistribution of effort from one fishing gear to another (e.g., 
longline to gillnet); the model inappropriately predicts spatially 
heterogeneous increases in regional fishing effort and bycatch; NMFS 
should acknowledge the limitations of the model when selecting the 
final alternatives and base predictions about redistribution of effort 
on credible, transparent sources and peer-reviewed literature or on 
comparisons to the outcomes of previous time/area closures; and NMFS 
initially argued that there would not be a displacement of effort if 
closures were implemented, but now is arguing the opposite.
    Response: While the redistribution of effort model does not 
explicitly take into account the potential for fishermen to shift from 
one gear to another, NMFS has discussed a number of unintended 
consequences that could result from new closures, including fishermen 
selling their permits, moving to other areas, and possibly switching 
gears to target other species. However, given the limited access 
restrictions of permits for other fisheries, NMFS predicts that it 
would be difficult for fishermen to switch to a different gear and 
different fisheries unless they currently possess other permits. NMFS 
acknowledges the limitations of the redistribution of effort model, and 
has considered and analyzed other plausible alternatives to the current 
redistribution scenario. NMFS has considered results from both the 
redistribution of effort model and a no redistribution of effort model 
since the first closure for HMS fishermen was implemented in 1999. NMFS 
has consistently taken both scenarios into account when considering new 
or additional closures.
ix. Data Concerns
    Comment 31: Does the recent article in the journal ``Nature'' 
regarding BFT spawning, which indicated that discards are being 
underestimated, affect NMFS assumptions about the benefits (and costs) 
of the proposed time/area closures? Does NMFS have any data indicating 
that bycatch rates are significantly lower than those recorded by the 
scientific observers?
    Response: NMFS is aware that discards may be underreported in the 
HMS logbook data compared to the POP data. However, NMFS examined 
whether any differences in underreporting between the logbook and 
observer data for different species emerged between different regions. 
If underreporting was not different between regions, then the relative 
effect of each closure on bycatch reduction for each species should be 
comparable across alternatives.
    Cramer (2000) compared dead discards from HMS logbook and observer 
data. In her paper, Cramer used observer data to estimate dead discards 
of undersized swordfish, sailfish, white and blue marlin, and pelagic 
sharks from the PLL fishery operating in the U.S. Atlantic, Caribbean, 
and Gulf of Mexico. She also provided the ratio of catch estimated from 
the observer data divided by the reported catch in the HMS logbooks. 
This ratio indicates the amount of underreporting for different species 
in a given area. NMFS analyzed these ratios to test whether 
underreporting varied for different species in different parts of the 
Atlantic, Caribbean, and Gulf of Mexico. NMFS found no statistical 
difference in the ratio of estimated catch versus reported catch for 
undersized swordfish, pelagic sharks, sailfish, or white or blue marlin 
in the Atlantic, Caribbean, or Gulf of

[[Page 58078]]

Mexico. Based on the available information, NMFS found that the 
underreporting in logbooks compared to observer reports was consistent 
between areas. Therefore, NMFS believes that, while HMS logbooks may 
underestimate the amount of bycatch, the use of logbook data rather 
than observer data should not invalidate or bias the results and that 
the relative effect of each closure for each species should be 
comparable across alternatives when using logbook data.
    Furthermore, while logbook data appear to underreport bycatch, NMFS 
has logbook data for each set fished and has observer data for only a 
limited number of sets fished. In order to use observer data for the 
analyses, NMFS would have had to extrapolate the catch for all species 
in all the different areas. This extrapolation process would have added 
another layer of uncertainty to the model and the results. NMFS 
believes that while the overall numbers of bycatch and target catch 
taken would have been larger using the observer data, the use of 
observer data would have resulted in more uncertainty regarding the 
relative effect of each closure in terms of predicted changes in 
bycatch, discards, and retained catch would be the same. Use of the raw 
logbook data, however, would not introduce the same degree of 
uncertainty. NMFS will continue to investigate potential differences in 
reporting between HMS logbook and observer data for all discarded 
species as well as potential biases in reporting between geographical 
areas for different species.
    Comment 32: NMFS should use the observed sea turtle CPUE by season 
for each region and multiply it by the amount of effort anticipated to 
return to that particular area in order to more accurately assess 
changes to sea turtle bycatch.
    Response: NMFS used HMS logbook data for all of the analyses to 
maintain consistency among the alternatives and species. If NMFS had 
used the POP data for all species, NMFS would have had to calculate 
extrapolated takes for all the species considered. This extrapolation 
would have introduced more assumptions and uncertainty than using HMS 
logbook data to analyze the potential impacts of time/area closures. As 
mentioned in the response to Comment 31, NMFS found that HMS logbooks 
may underestimate the amount of bycatch, however, the relative effect 
of each closure for each species should be comparable across 
alternatives. The analyses conducted for this rulemaking (and described 
in the response to Comment 31) give some indication that the use of HMS 
logbook data over POP data should not invalidate or bias the results of 
the time/area analyses because the level of underreporting did not 
significantly differ between geographic regions and, thus, between 
closure alternatives. NMFS will continue to investigate potential 
differences in reporting between HMS logbook and POP data for all 
discarded species.
    Comment 33: How did NMFS conduct the overlap analysis comparing 
effects of bycatch on BFT, marlin, and sea turtles?
    Response: NMFS analyzed the distribution of white marlin, BFT, 
leatherback and loggerhead sea turtles, as well as a number of other 
species from the 2001 [dash] 2003 HMS logbook and POP data using GIS. 
Data for each of the species were mapped and compared spatially to one 
another in order to select the areas of highest concentration of 
bycatch. The areas of highest concentrations of bycatch for all species 
were then selected for further analysis. NMFS provided maps of bycatch 
for individual species in the Draft Consolidated HMS FMP, and has 
provided a map showing the overlap of BFT, white marlin, and sea 
turtles in the Final Consolidated HMS FMP. NMFS combined the bycatch 
data from the HMS logbook for BFT, white marlin, and sea turtles into 
one combined dataset, and then joined them to a 10 x 10 minute grid 
(which is equivalent to approximately 100 nm\2\) to get the number of 
discards for all species combined per 100 nm\2\. A color scale is 
included to show the number of observations per 100 nm\2\. The maps 
show the areas of highest bycatch for the three species combined. 
Monthly interactions for the different species (i.e., temporal 
variability) were considered in the redistribution of effort analyses.
    Comment 34: NMFS should consider increasing observer coverage 
throughout the longline fleet to document unintended bycatch.
    Response: NMFS's target for PLL observer coverage is 8 percent. 
This is based on the recommendation from the National Bycatch Report 
that found coverage of 8 percent would yield statistical analyses of 
protected resources that would result in coefficient of variance 
estimates that were below 30 percent.
    Comment 35: Available evidence suggests that leatherbacks, 
loggerheads, and BFT may share similar hot spots in the Gulf of Mexico, 
thus closures could be beneficial to all species -- despite the 
opposite conclusion in the Draft Consolidated HMS FMP.
    Response: Pelagic logbook data also showed areas in the Gulf of 
Mexico where leatherbacks, loggerheads and BFT have been present. NMFS 
considered closures in the Gulf of Mexico for white marlin, blue 
marlin, sailfish, spearfish, leatherback sea turtles, loggerhead sea 
turtles, other sea turtles, pelagic and large coastal sharks, 
swordfish, BFT, and BAYS tunas. However, unlike the analyses for the 
existing closures, NMFS found that no single closure or combination of 
closures would reduce the bycatch of all species considered, and in 
certain cases resulted in increases of bycatch for some species with 
the consideration of redistribution of effort. While the Magnuson-
Stevens Act provides NMFS the authority to manage all species, NMFS 
must balance the mandates of the National Standards when examining 
various closures. For example, National Standard 9 requires NMFS to 
minimize bycatch and bycatch mortality to the extent practicable and 
National Standard 1 requires NMFS to prevent overfishing while 
achieving on a continuing basis the optimum yield from each fishery for 
the U.S. fishing industry. Both of these National Standards applies to 
all species and fisheries. If NMFS were to consider only National 
Standard 9, NMFS could continue to reduce bycatch of certain species 
until no fishery exists. However, NMFS also needs to balance the needs 
of National Standard 1 and ensure that each fishery has the opportunity 
to catch optimum yield of fish while preventing overfishing. NMFS will 
continue to look at additional closures and other management measures 
that reduce bycatch and bycatch mortality and that balance the 
requirements of all the National Standards and other domestic law, as 
applicable.
x. Pelagic Longline
    Comment 36: NMFS received several comments regarding alternative 
B7, the prohibition of PLL gear. These comments included: we oppose any 
rule that would allow the further use or experimentation of such gear, 
and support alternative B7, which would prohibit the use of PLL gear in 
HMS fisheries and areas (this alternative would save the fishery if 
buoy gear was also prohibited); NMFS needs to look at data prior to the 
introduction of PLL gear in relation to the decline of billfish; and 
this should be about the gear, not the fishermen, because PLL gear is 
problematic.
    Response: NMFS does not prefer alternative B7 at this time because, 
while prohibiting the use of PLL gear would eliminate bycatch 
associated with that gear, it would also eliminate a significant 
portion of the retained

[[Page 58079]]

catch of swordfish and tunas (e.g., in 2004, 97 percent of the 
swordfish landings from the U.S. Atlantic were from longline gear). 
Elimination of this retained catch would result in substantial negative 
social and economic impacts. Under ATCA, the United States cannot 
implement measures that have the effect of raising or lowering quotas, 
although NMFS may change the allocation of that quota among different 
user groups. The swordfish fishery is confined, by regulation, to three 
gear types: harpoon, longline, and handlines. Under preferred 
alternative H5, the commercial swordfish fishery would also be 
authorized to use buoy gear. Since it is unlikely that the handgear 
sector would be able to catch the quota given the size distribution of 
the stock, prohibiting longline gear may reduce the ability of U.S. 
fishermen to harvest the full quota. It may also reduce traditional 
participation in the swordfish fishery by U.S. vessels relative to the 
foreign competitors because the United States would harvest a vastly 
reduced proportion of the overall quota.
    In addition, any ecological benefits may be lost if ICCAT 
reallocates U.S. quota to other countries that may not implement 
comparable bycatch reduction measures as the United States. The PLL 
fishery has implemented many management measures to reduce bycatch 
including circle hook requirements, live bait restrictions in the Gulf 
of Mexico, prohibition of the targeted catch of billfish and BFT, time/
area closures, and safe handling and release protocols for protected 
resources. These restrictions have been successful. Methods that have 
been employed and designed by U.S. PLL fishermen, such as circle hooks 
and safe handling and release protocols for protected resources, are 
being transferred around the world to reduce bycatch world-wide. 
Therefore, this alternative could ultimately support the fisheries of 
other countries that do not implement or research conservation and 
bycatch reduction measures to the same extent that the United States 
does. As a result, alternative B7 could have the unintended effect of 
increasing the bycatch of undersized or non-target species and 
protected resources in the Atlantic Ocean.
    Comment 37: NMFS needs to consider the adverse economic impact of 
existing time/area closures on the commercial longline fishery 
especially because the PLL fleet has been reduced to approximately 88 
vessels due to existing restrictions; the current high cost of fuel is 
severely impacting the PLL fleet, and recent hurricanes may have 
further reduced the fleet.
    Response: NMFS evaluated the effect of current time/area closures 
on the PLL fleet in the No Action alternative, B1. While the closures 
have had a positive impact on bycatch, they have also had a negative 
impact on retained species landings. For example, from 1997 to 2003, 
the number of retained swordfish declined by nearly 28 percent, the 
number of retained yellowfin tuna declined by 23.5 percent, and the 
total number of retained BAYS tunas declined by 25.1 percent. Overall 
effort in the Atlantic PLL fishery, based on the reported number of 
hooks set, declined by 15 percent from the pre-closure period to the 
post-closure period. One reason for this decline may be that fishermen 
left the fishery as a result of the time/area closures. In addition, 
other factors such as hurricanes and fuel prices have negatively 
impacted the PLL fishery. This is one reason why NMFS does not prefer 
any new time/area closures, except for Madison-Swanson and Steamboat 
Lumps, at this time. Rather, NMFS will continue to estimate current 
fishing effort and the potential recovery of the PLL fleet, while also 
considering protected species and other takes.
    Comment 38: Why is NMFS considering additional closures for the PLL 
fishery when analyses indicate that the original goals of the closures 
have been met or exceeded; NMFS does not react this way for the BFT 
fishery because it protects spawning or pre-adult swordfish, exceeding 
the ICCAT standards, yet promotes full utilization of the BFT angling 
quota; NMFS must realize that the PLL fishery is not always the highest 
contributor to mortality, and that other fisheries continue to hide 
behind their lack of data; NMFS should show recreational data and 
analyze closures for other gears; the issue is fishing mortality, 
regardless of where it comes from; NMFS must consider all forms of 
fishing mortality including post release mortality from catch and 
release fishing.
    Response: As part of its annual review process, NMFS evaluates the 
effectiveness of existing time/area closures. Analysis of the change in 
effort and bycatch after implementation of existing closures indicates 
that bycatch may have been reduced more than predicted with 
redistribution of effort, and in some cases, without redistribution of 
effort. There are several possible explanations for the higher than 
predicted decline in bycatch and effort resulting from time/area 
closures that may have ecological impacts as well as economic 
repercussions on fishing behavior and the PLL fishing industry: (1) 
stocks may be declining; (2) time/area closures may have acted 
synergistically with declining stocks to produce greater declines in 
catch than predicted; (3) fishermen may have left the fishery; and (4) 
fishing effort may have been displaced into areas with lower CPUEs. 
With regard to the last point, the redistribution of effort model is 
incapable of making predictions based on a declining CPUE. Instead, the 
model assumes a current CPUE that remains constant in the remaining 
open areas when estimating reductions. NMFS also considered 
modifications to the existing closures, in alternatives B3(a) and 
B3(b), to provide additional opportunities to harvest legal-sized 
swordfish but not increase bycatch. NMFS, however, does not prefer any 
modifications to the current closures for the reasons discussed in the 
response to Comment 15. NMFS agrees that all sources of fishing 
mortality should be considered in evaluating new and existing 
management measures. For this reason, circle hooks would be required 
with natural baits in all billfish tournaments (preferred alternative, 
E3). Estimated mortality contributions of the domestic PLL and 
recreational sectors toward Atlantic white marlin can be seen in 
Appendix C of the Consolidated HMS FMP. NMFS will consider additional 
information on post release mortality as it becomes available.
    Comment 39: NMFS must consider safety. Overly restrictive closed 
areas force small vessels to stretch beyond their offshore 
capabilities.
    Response: NMFS agrees that safety concerns should be considered 
when developing any new management measures, consistent with National 
Standard 10. After carefully reviewing the results of all the different 
time/areas closures analyses, and in consideration of the many 
significant factors that have recently affected the domestic PLL fleet, 
NMFS, at this time, does not prefer any new closures, except the 
complementary measures in the Madison-Swanson and Steamboat Lumps 
Marine Reserves. This decision is based primarily upon the analyses 
indicating that no single closure or combination of closures would 
reduce the bycatch of all species considered (see the response to 
Comment 39 of this section). Furthermore, the economic impacts of each 
of the alternatives may be substantial, ranging in losses of up to 
several million dollars annually, depending upon the alternative, and 
displacement of a significant number of fishing vessels.

[[Page 58080]]

xi. Bottom Longline
    Comment 40: We support the prohibition of bottom longline gear in 
the southwest of Key West to protect smalltooth sawfish (alternative 
B6). This alternative can provide a head-start in reducing sawfish 
bycatch during the lengthy process of review and implementation of the 
Smalltooth Sawfish Recovery Plan (SSRP). NMFS should coordinate closely 
with the Panama City Laboratory and Mote Marine Laboratory to ensure 
full funding of their proposed research into sawfish critical habitat 
and act promptly on their recommendations regarding additional time/
area closures for the species.
    Response: The alternative to close an area off of Key West relied 
upon a limited amount of Commercial Shark Fishery Observer Program 
(CSFOP) data, thus making it difficult to determine whether the area 
being considered would result in overall reduction in interactions, or 
whether sawfish exhibit a higher degree of mobility, and are as likely 
to be caught in other areas. Recent information indicates that 
additional sawfish interactions have occurred outside the proposed 
area, thus necessitating further review of the most appropriate 
location for a potential closure. In addition, the Smalltooth Sawfish 
Recovery team is currently in the process of identifying sawfish 
critical habitat, which may be helpful in determining an appropriate 
closure area in the future. NMFS supports this and other efforts to 
further delineate critical habitat for this endangered species.
    Comment 41: NMFS received several comments regarding the bottom 
longline closed area off North Carolina including: NMFS should 
comprehensively examine and assess the effectiveness of closures and 
have the confidence that alterations would not reduce protection for 
dusky and sandbar sharks; I recommend removing the NC BLL closure and 
re-analyzing the impacts in the same manner as was done for this 
document. Displacement was not considered for that closure; and NMFS 
should change the NC closed area to only be closed out to 15 fathoms 
maximum depth, and change the time to begin on April 1 and continue 
until July 31 of each year. These changes protect juvenile sandbar 
sharks, keep protections in place for the peak ``pupping season,'' and 
balance the needs of the directed shark fishermen whose economic 
livelihood has been hurt by the Amendment 1 measures.
    Response: The bottom longline closed area off North Carolina was 
implemented in Amendment 1 to the FMP in December 2003, and became 
effective on January 1, 2005. The time/area closure has now been in 
place for two complete management periods from January 1 to July 31, 
2005, and January 1 to July 31, 2006. The final 2005 logbook data 
recently became available. NMFS is beginning to evaluate the impacts of 
the first period of this closure. NMFS is considering additional new 
information, such as the results of LCS stock assessment and the dusky 
shark stock assessments, to determine whether changes to the time/area 
closure, and all shark management measures in general, are appropriate. 
As a result of the new stock assessments, long-term changes to the 
time/area closure will be considered in an upcoming amendment to the 
FMP. However, given the large overharvest in the South Atlantic region 
in the first trimester of 2006, NMFS is considering short-term changes 
to the mid-Atlantic shark closure in 2007. NMFS also continues to 
monitor changes to shark regulations by coastal states and to work with 
the Atlantic States Marine Fisheries Commission (ASMFC) to develop an 
interstate shark plan, which may warrant additional review of existing 
Federal regulations and consideration of further changes to the time/
area closure.
    NMFS considered redistribution of fishing effort for the time/area 
closure off North Carolina in Amendment 1. The redistribution of 
fishing effort analysis indicated that, despite an increase in fishing 
effort outside the time/area closure, the closure would reduce the 
overall catch of juvenile sandbar and dusky sharks. The analysis showed 
that the number of juvenile sandbar and prohibited dusky sharks outside 
the time/area closure was low compared to the number being caught 
inside the time/area closure.
xii. Hook Types
    Comment 42: NMFS received several comments regarding hook types and 
time/area closures, including: the time/area closure analyses are based 
on J-hook data, which the Agency has admitted is obsolete; the time/
area closure analyses do not take into account new CPUE or PRM rates 
based on circle hooks; the impact of the area closures will be larger 
than predicted because the PLL industry is already using circle hooks; 
all of NMFS analyses are based on J-hook data and a much larger fleet. 
Bycatch and bycatch mortality will be further reduced due to the 
exclusive use of circle hooks in the PLL fishery; NMFS should consider 
banning all J-hooks and live bait fishing in all areas that are 
currently closed to PLL fishing.
    Response: NMFS used the best scientific information available to 
analyze the various time/area closure alternatives. Circle hooks were 
not required in the PLL fishery until July 2004, and all of the data 
used in the time/area analyses were based upon J-hook data. The 
evaluation of the effects of circle hooks is discussed in the response 
to Comment 2 above. An important component of the rationale supporting 
the Agency's decision not to prefer new time/area closures 
(notwithstanding Madison-Swanson and Steamboat Lumps) is based upon 
absence of information regarding the effects of circle hooks on bycatch 
rates in the PLL fishery.
    Similarly, there is an absence of information to analyze the 
effects of a ban on all J-hooks and live bait fishing in areas that are 
currently closed to PLL fishing. Some available studies document the 
effects of circle hooks on certain species (i.e., white marlin), and 
NMFS prefers specific, targeted hook requirements to reduce bycatch 
mortality in these fisheries. However, the effect of circle hooks on 
other HMS species (i.e., swordfish and sharks) and fisheries is largely 
unknown. As additional information becomes available, NMFS will assess 
the need to require circle hooks, or to prohibit live bait, in other 
HMS fisheries in areas that are closed to PLL fishing.
xiii. General Time/Area Comments
    Comment 43: NMFS chose to combine some of the closures in the 
analyses. How were those areas chosen?
    Response: NMFS analyzed the combination of areas that had the 
highest bycatch of certain species in the Gulf of Mexico and the 
Atlantic to maximize potential bycatch reduction, and to take into 
account high bycatch for the same species in different areas as 
described in response to Comment 33. For example, there is high bycatch 
for BFT in both the Gulf of Mexico and in areas of the Northeast. By 
combining these two areas, NMFS took into account the fact that, if 
effort were redistributed, it would not be redistributed into the areas 
of highest bycatch in a different geographic region.
    Comment 44: What is the new process for establishing and/or 
modifying closures?
    Response: NMFS is not implementing a new process for establishing 
or modifying HMS time/area closures. Rather, the Agency is identifying 
specific criteria to consider for regulatory framework adjustments that 
could implement new time/area

[[Page 58081]]

closures or modify existing time/area closures in the future. NMFS has 
always considered these criteria, or combinations of them, in 
establishing or modifying time/area closures. The preferred 
alternative, however, will provide for greater transparency and 
predictability in the decision making process by clarifying what the 
Agency is looking for, or considering, during its analyses. The same 
criteria will be used both to establish new closures and to modify 
existing closures. The preferred alternative to establish these 
criteria will not affect the ability of the public to submit a petition 
to NMFS for rulemaking if they believe that an existing time/area 
closure should be modified or a new time/area closure should be 
established.
    Comment 45: The proposed time/area closure alternatives do not 
achieve the conservation objectives of the FMP.
    Response: There are many objectives in the Consolidated HMS FMP. 
All of these objectives must be balanced and considered in their 
entirety, within the context of the Magnuson-Stevens Act and other 
domestic laws, when implementing management measures. Some of the 
objectives in the FMP are especially relevant to this particular 
comment. The first objective is to prevent or end overfishing of 
Atlantic tunas, swordfish, billfish and sharks and adopt the 
precautionary approach to fishery management. The second objective is 
to rebuild overfished Atlantic HMS stocks and monitor and control all 
components of fishing mortality, both directed and incidental, so as to 
ensure the long-term sustainability of the stocks and promote Atlantic-
wide stock recovery to the level where MSY can be supported on a 
continuing basis. The third objective is to minimize, to the extent 
practicable, bycatch of living marine resources and the mortality of 
such bycatch that cannot be avoided in the fisheries for Atlantic HMS 
or other species, as well as release mortality in the directed billfish 
fishery. Finally, another objective that is relevant to this comment 
indicates that NMFS should minimize, to the extent practicable, adverse 
social and economic impacts on fishing communities and recreational and 
commercial activities during the transition from overfished fisheries 
to healthy ones, consistent with ensuring the achievement of the other 
objectives of this plan and with all applicable laws. These objectives 
clearly indicate that the biological impacts on all HMS species must be 
considered, as well as the bycatch of all other living marine 
resources. In addition, NMFS must minimize, to the extent practicable, 
adverse social and economic impacts on fishing communities and 
fisheries, while remaining consistent with the other FMP objectives. In 
selecting the preferred time/area closure alternatives, NMFS has 
accomplished these objectives.
    In this rulemaking, NMFS does not prefer any new closures, except 
for complementary measures in the Madison-Swanson and Steamboat Lumps 
Marine Reserves. This decision is based primarily upon the analyses 
described in the Final Consolidated HMS FMP indicating that no single 
closure or combination of closures would reduce the bycatch of all 
species considered, when considering redistribution of effort (see 
response to Comment 39 of this section). Furthermore, the economic 
impacts associated with each of the new closure alternatives could be 
substantial, ranging in losses of up to several million dollars 
annually, depending upon the alternative, which would result in the 
displacement of a significant number of fishing vessels. Even when the 
time/area closure alternatives were combined in an attempt to maximize 
bycatch reduction, the ecological benefits were minimal at best, with 
increases in discards of some species. NMFS considered a number of 
closures based upon analyses with and without the redistribution of 
fishing effort. The Agency believes it is important to consider the 
redistribution of fishing effort because HMS and protected species are 
not uniformly distributed throughout the ocean. Fishing vessels, which 
are mobile, can move from one location to another, if necessary, when a 
closure is implemented. Therefore, a closure in one area might reduce 
the bycatch of one or two species, but may increase the bycatch of 
others. NMFS additionally considered alternative approaches to effort 
redistribution for closures to protect BFT in spawning areas in the 
Gulf of Mexico. Even when using this revised approach, which is 
described more fully in the Final Consolidated HMS FMP, closures in the 
Gulf of Mexico increase the bycatch of some of the species being 
considered. Based upon these results, and in consideration of other 
recent significant developments in the PLL fishery (mandatory circle 
hooks, rising fuel costs, devastating hurricanes, etc.), new time/area 
closures are not appropriate at this time. This decision is fully 
consistent with the objectives of the Consolidated HMS FMP and all 
other applicable law.
    Comment 46: If species identification is questionable how can the 
impacts of closures be analyzed?
    Response: NMFS agrees that species identification can be 
problematic, especially the identification of large coastal sharks at 
the dealer level. However, NMFS can evaluate the potential impacts of 
the various time/area closures because large coastal sharks were 
combined into a single group for the analyses. Identification of other 
species that achieve legal minimum sizes may be less problematic. 
Nevertheless, NMFS has used the best available scientific data to 
evaluate potential impacts of time/area closures.
    Comment 47: NMFS must consider the turtle take and gear removal 
data from the first two years of the pelagic longline fishery's three-
year ITS. Pursuant to the BiOp, annual take estimates based on POP and 
effort data are required to be completed by March 15th of each year. 
Additionally, NMFS should take this opportunity to provide a framework 
to take corrective actions as recommended by the BiOp.
    Response: NMFS agrees that changes may have occurred in the PLL 
fishery since implementation of the circle hook requirement and safe 
handling and release guidelines in July 2004. NMFS currently only has 
finalized logbook data on the catch associated with circle hooks from 
July through December of 2004. 2005 was the first full year under these 
requirements. The final 2005 HMS logbook data became available in 
August 2006. NMFS will begin to analyze that data soon. Because circle 
hooks likely have a significantly different catch rate than J-hooks, 
further investigation is required to determine the potential impacts of 
time/area closures. The Agency will continue to monitor and analyze the 
effect of circle hooks on catch rates and bycatch reduction, as well as 
assess the cumulative effect of the current time/area closures and 
circle hooks. NMFS has also completed its annual take estimates of sea 
turtles for both 2004 and 2005. These estimates indicate that both 
loggerhead and leatherback interactions have decreased substantially. 
During 2005, the first full year under the circle hook requirement, a 
total of 282 loggerhead and 368 leatherback sea turtles were estimated 
to have been taken. This represents decreases of 64.8 and 65.8 percent 
compared to the annual mean for 2000 [dash] 2003 for loggerheads and 
leatherbacks, respectively. With regard to the framework mechanism 
recommended by the BiOp, NMFS has requested comment on this mechanism 
and other ways to reduce unanticipated increases in sea turtle takes by 
the PLL fishery (August 12, 2004; 69 FR 49858). NMFS is considering the 
comments received

[[Page 58082]]

and notes that the preferred alternative to establish criteria is a 
step towards allowing for more proactive measures.

Rebuilding and Preventing Overfishing

A. Northern Albacore Tuna
    Comment 1: NMFS received comments opposed to alternative C2, 
unilateral reduction in albacore fishing mortality, which indicated 
such restrictions would only create unnecessary waste and discards. 
Commenters remarked that the United States only weakens its negotiating 
position by taking unilateral steps prior to ICCAT action. Prohibiting 
retention of albacore by all U.S. vessels would have negligible 
conservation effects. Some commenters stated that the United States 
should take action ahead of ICCAT and not negotiate our position.
    Response: NMFS recognizes the costs associated with imposing 
restrictions on albacore tuna landings for U.S. fisheries, and at the 
present time believes that the costs are greater than potential 
ecological benefits for the northern albacore stock as a whole. 
Restrictions that affect U.S. fishermen solely are not expected to be 
of significant ecological value to the Atlantic albacore stocks as a 
whole, as U.S. albacore landings account for less than 2 percent of the 
international landings. Furthermore, albacore stock assessment data has 
been updated but not re-evaluated since 2000. The next assessment is 
currently scheduled for 2007. It would not be consistent with ATCA to 
impose fishing restrictions on this stock in the absence of current 
data supporting such an action. The Agency therefore selects 
alternative C3, which allows the United States to build a foundation 
with ICCAT to develop a comprehensive management plan for albacore.
    Comment 2: NMFS received comments in opposition to selected 
alternative C3, which would establish a foundation at ICCAT for the 
development of an international northern albacore tuna rebuilding 
program. These comments include: ``The Gulf of Mexico Fishery 
Management Council is concerned that regulations to rebuild the 
northern albacore could impact other Gulf fisheries and recommends that 
no action be taken in the Gulf as part of the United States foundation 
for the ICCAT rebuilding program, since there is not a substantial 
albacore catch in the Gulf''; I am leery about any regulations relating 
to albacore since albacore is an important fishery in Aug-Sept off Long 
Island; NMFS should set a bag limit of three albacore per person and a 
minimum size of 27 inches curved fork length now, and perhaps enact a 
seasonal catch limit as well.
    Response: As noted by the SCRS in 2003, trends for CPUE of albacore 
are stable and possibly increasing for the PLL fleet; however, in the 
absence of more recent stock assessment data, the Agency believes that 
no action, or moving forward with a unilateral reduction in U.S. 
fishing mortality are not consistent with ATCA and are therefore not 
selected. In alternative C2, NMFS considered the ecological, social and 
economic impacts of unilateral action. Restrictions that affect U.S. 
fishermen solely, including the implementation of bag and size limits, 
or catch limits, are not expected to significantly benefit the Atlantic 
albacore stocks as a whole, as U.S. albacore landings account for less 
than 2 percent of the international landings. NMFS prefers to work with 
ICCAT to develop an international rebuilding plan for albacore. No 
immediate restrictions will be imposed on fisheries in the Gulf or 
elsewhere as NMFS develops the appropriate foundation for such a plan 
as described in alternative C3. Upon adoption of an ICCAT rebuilding 
plan, domestic management would be developed in separate rulemaking and 
Gulf regulations options may be considered at that time, as 
appropriate.
    Comment 3: NMFS received support for establishing a foundation at 
ICCAT for developing an international rebuilding program for northern 
albacore tuna. These comments include: The management approach for 
Northern Albacore is favorable and NMFS should apply this approach to 
many other domestic fisheries; and we support alternative C3, which 
will actively encourage ICCAT to develop and implement an international 
rebuilding plan for albacore tuna. While we support an albacore-
rebuilding plan, we do not believe that the United States should 
implement reductions on its albacore fishermen. For meaningful and 
effective rebuilding of albacore to take place, U.S. managers must be 
willing to put significant pressure on countries with high fishing 
mortalities; and, EU countries have felt compelled to ban gillnets in 
this fishery.
    Response: To effectively ensure that international efforts are 
taken to regulate albacore fishing mortality and provide for a 
sustainable fishery, the Agency plans to work with ICCAT to develop a 
rebuilding program for this species. As current international catch 
rates exceed the levels needed to produce MSY, NMFS believes that 
international cooperation is essential to rebuild the stock and thereby 
provide long-term positive ecological impacts.
    Comment 4: NMFS received a number of comments regarding the data 
that is used to determine the U.S. catch and status of Atlantic 
albacore, including: We are concerned about the use of survey data for 
the for-hire sectors of this fishery. A study by Loftus and Stone 
showed that the LPS data significantly underestimated recreational 
catches of northern albacore tuna, which supports the need for 
increased recreational data collection; there is a directed fishery for 
longfin tuna that catches albacore; this fishery is not important to 
the GOM but it could affect other GOM fisheries. It is important to get 
the data straightened out now rather than after the fact; and, we need 
better recreational data. The draft FMP did not pay adequate attention 
to data issues, including looking at a census approach rather than 
sampling. We need to work with ACCSP to create census data with good 
quality control.
    Response: Adequate data collection is an ongoing concern for the 
successful management of Highly Migratory Species. NMFS funds the Large 
Pelagic Survey (LPS) which is a sampling based catch data collection 
program for HMS species. In two states, MD and NC, catch-card and tail-
wrap tagging programs are part of the LPS, which is using the census 
approach to catch data collection. NMFS is working with managers to 
collect data for all HMS species, including Atlantic albacore, through 
the ACCSP program. In addition, the Gulf of Mexico Fishery Management 
Council has asked the Gulf States Marine Fisheries Commission to look 
into statistical and census-based data collection programs for HMS in 
the Gulf of Mexico.
    Comment 5: NMFS received comments asking to explain what 
``establish the foundation with ICCAT `` means in terms of a specific 
plan. One commenter suggested that the plan needs to be fully developed 
and explained in the proposed FMP.
    Response: If the stock is determined to be overfished during the 
2007 assessment, the United States will work with ICCAT to develop a 
comprehensive international rebuilding plan that would be adopted by 
ICCAT, and that would comply with the Magnuson-Stevens Act. 
Implementation of the selected alternative will include a thorough 
analysis of the ICCAT rebuilding program to ensure that it includes a 
specified recovery period, biomass targets, fishing mortality rate 
limits, and explicit interim milestones expressed in terms of 
measurable improvement of the stock. Each of these components is 
necessary to support the objectives of

[[Page 58083]]

this FMP and the intent of the Magnuson-Stevens Act. The goal of this 
alternative is for ICCAT to adopt an Atlantic-wide TAC for northern 
albacore tuna, along with other conservation and management measures, 
to rebuild the stock. Upon adoption by ICCAT, domestic management and 
conservation measures for the United States would be developed in a 
separate rulemaking.
    Comment 6: One commenter asked how the 607 mt quota is to be 
divided between the commercial and recreational fisheries.
    Response: Currently, the United States does not have domestic quota 
for recreational albacore catches, nor are there restrictions on the 
number of albacore that may be landed by commercial vessels issued an 
Atlantic tunas permit. Allocation of the quota between commercial and 
recreational fisheries has not been of concern during recent years as 
the U.S. harvest has been below the quota allocated by ICCAT. During 
the last eight years (1997 to 2004), an average of 161.4 mt and 311.4 
mt of northern albacore were caught on longlines and rod and reel, 
respectively.
    Comment 7: NMFS received a comment that a lot of albacore tuna are 
seen off New York. The commenter wanted to know how it is that NMFS can 
conclude they are overfished.
    Response: During the last 20 years, the spawning stock biomass of 
albacore has declined significantly, according to the SCRS. The most 
recent SCRS stock assessment (reviewed in 2004, using catch at age data 
from 2003 to update the 2000 assessment) for albacore, indicates that 
the spawning stock biomass is 30 percent below maximum sustainable 
yield. A new assessment is anticipated in 2007. According to the 
Magnuson-Stevens Act, a stock is overfished if the level of fishing 
mortality is greater than the capacity of that fishery to produce the 
maximum sustainable yield on a continuing basis. The presence of fish 
therefore, does not necessarily mean that a stock is not overfished. 
However, NMFS recognizes the seasonal nature of the albacore fisheries 
and will take this into account in developing management measures as 
needed.
B. Finetooth Sharks
    Comment 1: NMFS received several comments in support of seasonal 
commercial gillnet fishing restrictions to reduce finetooth shark 
fishing mortality, including one from the South Atlantic Fishery 
Management Council. These comments included: If seasons of high 
finetooth shark landings can be identified from the observer program, 
landings, or other data, then we suggest closing the small coastal 
shark fishery during that season for gillnetters, or having shark 
fishermen move offshore into deeper waters away from where finetooth 
sharks are typically found; fishing on these schools during pupping 
season may have significant biological implications; and, the 
seasonality of finetooth shark pupping should be investigated to 
determine whether some finetooth shark bycatch is more biologically 
significant than others.
    Response: Seasonal closures of commercial gillnet fisheries landing 
finetooth shark were not analyzed as part of alternative D2 (implement 
commercial management measures to prevent overfishing of finetooth 
sharks), however, these closures may be considered in the future, as 
necessary, to reduce fishing mortality. Closing the small coastal shark 
fishery will not prevent dead discards, or account for finetooth that 
are landed in other fisheries such as the Spanish mackerel fishery. In 
the Final Consolidated HMS FMP, trips that landed finetooth sharks 
between 1999 - 2004, according to the Coastal Fisheries Logbook data, 
were analyzed by gear and month. These data indicate that the number of 
trips landing finetooth sharks increases in October and November. This 
could be attributed to finetooth sharks moving in schools southward 
from the Carolinas to warmer waters off Florida in these months leading 
to an increase in finetooth landings. Furthermore, there is an 
expansion of fishing effort targeting Spanish mackerel as these fish 
are also moving south to Florida in October and November each year, 
which might also lead to increased landings during this period.
    Commercial shark gillnet fishermen are already subject to stringent 
regulations during October and November including: prohibitions on 
fishing in state waters of FL, GA, and SC with gillnets longer than 100 
ft.; the directed shark gillnet fishery in Federal waters is subject to 
100 percent observer coverage and the use of VMS in the vicinity of the 
Southeast U.S. Restricted Area for north Atlantic right whales between 
Savannah, GA and Sebastian Inlet, FL; and, all gillnet fishermen are 
prevented from deploying shark gillnets (stretched mesh >5 in.) in the 
Southeast U.S. Restricted Area between November 15 and March 31 every 
year. Since most states in the region have already banned gillnet gear, 
and because most of the fishing pressure on finetooth sharks occurs 
after they have already given birth to their pups in the spring and 
summer in coastal waters (6.5 - 23 ft water depth), seasonal closure 
during pupping season may not be warranted. Fishermen are not able to 
target finetooth sharks when fishing with gillnets because it is a non-
selective gear. Therefore, any management measures solely directed at 
fishermen using gillnet gear and in possession of a commercial shark 
permit could be circumvented, as fishermen could continue to use 
gillnets as an authorized gear for Spanish mackerel or in other 
fisheries pursuing currently unregulated species. Furthermore, closures 
may result in increased fishing effort in other areas or seasons, which 
could increase dead discards of finetooth sharks.
    Comment 2: NMFS received several comments in support of the 
preferred alternative for finetooth shark management, including: 
identifying sources of finetooth shark fishing mortality to target 
appropriate management actions is appropriate; the occurrence of 
overfishing is a function of data deficiency; I agree with the 
preferred alternative; we need clarification about the landings 
information in the SCS assessment; I support the preferred alternative 
and the stock assessment; I applaud NMFS for taking the approach with 
the level of uncertainty; NMFS scientists cautioned the reader about 
conclusions made for finetooth and blacknose shark; ASMFC is trying to 
address these issues; we need to know which fishery is catching these 
fish; I know that under the law we are supposed to reduce mortality, 
but I think that we need more information; we support alternative D4 
because it is critical to improve the assessment for finetooth sharks 
in 2007; NMFS should wait on the updated assessment results for 
finetooth sharks before attempting a quota reduction on the commercial 
shark fishermen; the March 2002 SCS assessment did not have bycatch 
estimates to include with the short catch and catch per unit of effort 
(CPUE) series, as well as no catch for finetooth and blacknose sharks, 
which may have affected the results; if the majority of mortality 
occurs in non-HMS fisheries, why should HMS fishermen have to solve the 
problem; and if there is little connection to HMS, and if we want to 
get to fishing mortality, we need to collect information.
    Response: NMFS agrees that implementing a plan for preventing 
overfishing of finetooth sharks is necessary, and that appropriate 
measures are included in selected alternative D4 (identify sources of 
finetooth shark fishing mortality to target appropriate management 
actions). The majority of finetooth sharks are landed in the South 
Atlantic region (primarily Florida) by vessels deploying non-selective 
gillnet gear and in

[[Page 58084]]

possession of both a Spanish mackerel permit and a commercial shark 
permit, and/or targeting species that are currently unmanaged (i.e., 
kingfish). Thus, any management measures that are solely directed at 
fishermen using gillnet gear and in possession of a commercial shark 
permit could be circumvented by fishermen, as they could continue using 
gillnets as an authorized gear while pursuing Spanish mackerel or other 
currently unregulated species. Reducing finetooth shark fishing 
mortality through regulations directed at commercial shark permit 
holders is further confounded because finetooth sharks are within the 
SCS complex, which is not currently overfished or experiencing 
overfishing, and because commercial fishermen have only caught, on 
average, 20 percent of the SCS quota between 1999 - 2004.
    Finetooth sharks have a tendency to ``roll'' upon contact with 
gillnets and are, therefore, often dead at haulback. Observer data from 
the five vessels targeting sharks indicate that they are only 
responsible for a small portion of the commercial finetooth shark 
landings. Most of the gillnet vessels in the South Atlantic region have 
permits for both HMS and non-HMS species. If gillnets were no longer an 
authorized gear for harvesting HMS, vessels will continue to discard 
dead finetooth sharks that are caught as bycatch in other non-HMS 
fisheries. Furthermore, a fishery closure could lead to adverse 
economic impacts and unknown ecological impacts as this displaced 
fishing effort will likely shift to other fisheries or increase fishing 
pressure on LCS using bottom longline gear. Recreational landings of 
finetooth sharks only comprise 10 percent of annual finetooth shark 
landings, on average. These recreational landings of finetooth sharks 
translate to approximately 1.5 percent of the landings within the SCS 
complex.
    In 2002, NMFS conducted a stock assessment for all SCS, including 
finetooth sharks. The catch rate series data were combined with life 
history information for finetooth sharks and evaluated using several 
stock assessment models. The lack of bycatch data in the catch series 
data led to low values of MSY predicted for finetooth sharks in the SCS 
stock assessment (especially those obtained through the SPM models). 
This lack of bycatch data and shorter catch and catch per unit effort 
(CPUE) series, coupled with no catches reported in some years, led to 
some uncertainty in the stock assessment for finetooth sharks. In the 
case of finetooth sharks, model estimates of recent F levels are above 
Fmsy, indicating that recent levels of effort directed at 
this species, if continued, could result in an overfished status in the 
relatively near future.
    NMFS continues to explore which vessels may be engaged in fisheries 
that harvest finetooth sharks and intends to conduct a new SCS stock 
assessment following the Southeast Assessment, Data, and Review (SEDAR) 
process starting in 2007. The selected alternative, which will identify 
sources of finetooth mortality to target appropriate management 
measures, is expected to increase the amount of available catch series 
and bycatch data by expanding existing observer programs and contacting 
state and Federal fisheries management entities to collect additional 
landings data, which may be available for the upcoming stock 
assessment. The selected alternative is a critical component, and a 
necessary step, in NMFS's plan to end overfishing of this species to 
comport with National Standard 1 requirements.
    ASMFC is in the initial steps of developing an interstate FMP for 
coastal sharks. ASMFC staff has drafted a Public Information Document 
(PID), equivalent to a Scoping Document drafted prior to initiating a 
fishery management plan. The PID is currently available online at 
www.asmfc.org.
    Comment 3: NMFS received several comments either opposing the 
selected alternative (identify sources of finetooth shark fishing 
mortality to target appropriate management actions), or expressing 
concern over the fact that more progress has not already been made to 
prevent overfishing of finetooth sharks, including: NMFS determined 
that finetooth sharks were subject to overfishing three years ago and 
the current preferred alternative simply collects more data on sources 
of mortality for the species; it has already taken three or more years 
to amend this plan; NMFS should reconsider proposing more specific 
management measures in this Draft Consolidated HMS FMP to conserve 
finetooth sharks; we have a species that is in trouble, and under the 
law, you need to do something; we are disappointed that you are picking 
an alternative that will not do anything for the mortality; you need to 
change the preferred alternative to something more conservation-
oriented; NMFS has not done anything in the past 4 years and finetooth 
has overfishing occurring; we support alternative D4, but note our 
disappointment that NMFS has not already directed the appropriate 
Regional Council to take action to end the overfishing of finetooth 
sharks; NMFS should contact states directly as they should be more than 
willing to provide information; NMFS has made some steps forward in 
collecting more information, however, NMFS must work harder to get more 
data; and, NMFS needs to develop and pursue specific management 
measures to end finetooth shark overfishing.
    Response: The selected alternative (identify sources of finetooth 
shark fishing mortality to target appropriate management actions) will 
implement an effective plan to prevent overfishing. Based on the best 
available information on the fisheries that interact with finetooth 
sharks, management actions that affect only HMS fisheries will not 
adequately address the overfishing of finetooth sharks. The majority of 
finetooth shark landings occur in commercial fisheries deploying a non-
selective gear (gillnets) in a region (south Atlantic) where other non-
HMS fisheries also deploy gillnets. Thus, measures that prohibit the 
use of gillnets for landing sharks (alternative D2, implement 
commercial management measures to reduce fishing mortality of finetooth 
sharks), if aimed exclusively at the commercial shark gillnet fishery, 
will not prevent overfishing of finetooth sharks. Most of the five 
vessels that comprise the commercial shark gillnet fishery also possess 
Spanish mackerel permits. If gillnets were not allowed for the harvest 
of sharks, these vessels could continue to deploy gillnets to catch 
other species, including Spanish mackerel, catch finetooth sharks 
incidentally, and then discard dead finetooth sharks. Finetooth sharks 
are caught in a wide range of gillnet mesh sizes and are often dead at 
haulback, rendering trip limits and/or gear modifications ineffective 
at preventing overfishing because dead sharks would continue to be 
discarded. Mortality of finetooth sharks in fisheries outside the 
jurisdiction of HMS (state waters) or in unregulated fisheries in 
Federal waters (i.e., kingfish) would also be unaffected. The selected 
alternative will provide additional information on finetooth shark 
landings to allow enactment of comprehensive, collaborative measures 
that effectively reduce finetooth shark fishing mortality.
    The selected alternative will not simply collect more data. NMFS 
has already sent a letter to the South Atlantic Fishery Management 
Council and attended a recent meeting in Coconut Grove, FL (June 13-15, 
2006) to request consideration of joint management initiatives. Without 
cooperative measures, vessels may be able to circumvent any additional 
regulations that would be enacted for the commercial shark fishery when

[[Page 58085]]

pursuing Spanish mackerel. The Agency has obtained, and will continue 
to evaluate, landings of finetooth sharks by non-HMS fisheries in state 
and Federal waters. Furthermore, the Agency has analyzed Federal 
logbook data to better understand what non-HMS fishermen are catching 
when they land finetooth sharks, has determined seasonality of landings 
by federally permitted fishermen, has analyzed the Federal permits of 
vessels that land finetooth sharks, and has analyzed the Florida trip 
ticket data to better understand the seasonality, extent of landings, 
and what permits vessels possess that are landing finetooth sharks in 
the State of Florida. The Agency has expanded the directed shark 
gillnet fishery observer program to include observer coverage on 
vessels using alternative types of gillnet gear (sinknet) or targeting 
non-HMS species to determine the extent of finetooth shark landings in 
these fisheries and added finetooth sharks to the select species list 
for bycatch sub-sampling in the Gulf of Mexico shrimp trawl fishery to 
monitor bycatch of finetooth sharks in this fishery. These activities 
will form the basis for implementing appropriate management measures to 
ensure that overfishing of finetooth sharks is prevented.
    Comment 4: There should be a cap on the number of vessels allowed 
into the directed shark gillnet fishery and a limited entry program 
that only allows the five vessels that are currently participating in 
the fishery.
    Response: NMFS does not currently employ a gear based permit 
endorsement for shark fisheries; rather, permit holders possess either 
directed or incidental permits and both permits are valid for any of 
the authorized gears for sharks (gillnet, bottom and pelagic longlines, 
handline, rod and reel, or bandit gear). NMFS did not consider specific 
permit endorsements or gear-based permits in this rulemaking, but may 
consider options to limit vessel participation in the shark gillnet 
fishery in the future. Logbook and permit data does not indicate that 
there has been a significant increase in recent years in the number of 
vessels targeting sharks with gillnet gear. The majority of shark 
fishermen deploy bottom longline gear for LCS; however, directed shark 
gillnet fishermen most frequently target SCS and blacktip sharks. As 
blacktip sharks and the SCS species complex are not overfished or 
experiencing overfishing, capping the number of vessels allowed into 
the fishery may not be justified.
    Comment 5: NMFS received several comments in favor of banning 
gillnets for the directed harvest of sharks, including: banning 
gillnets might help reduce finetooth shark mortality; in the absence of 
removing gillnets from the authorized HMS gear list, there should be a 
requirement for year-round use of VMS on gillnet boats; drift gillnets 
should be prohibited; the State of Georgia supports the prohibition of 
gillnet gear to target finetooth sharks to prevent overfishing; and, I 
suggest that this fishery be banned in the South Atlantic and GOM until 
we determine the status of finetooth sharks and get things straight 
with the Right whale calf that was caught with gillnet gear.
    Response: NMFS considered the prohibition of gillnet gear within 
Alternative D2 (implement commercial management measures to reduce 
fishing mortality of finetooth sharks). A similar alternative was also 
considered in Amendment 1 to the Fishery Management Plan for Atlantic 
Tunas, Swordfish, and Sharks. NMFS agrees that banning the use of 
gillnets for the five vessels that comprise the directed shark drift 
gillnet fishery may reduce fishing mortality of finetooth sharks. 
However, other gillnet fisheries in the South Atlantic that target non-
HMS (Spanish mackerel and kingfish) would continue to catch finetooth 
sharks, and other species of sharks. Observer data indicate that the 
five vessels targeting sharks in the South Atlantic region are only 
responsible for a small portion of the commercial finetooth shark 
landings. Since most of the gillnet vessels in the South Atlantic have 
permits for both HMS and non-HMS (Council-managed) species, if gillnets 
were no longer an authorized gear for harvesting HMS, these vessels 
would continue to land, and discard dead, finetooth sharks caught as 
bycatch in pursuit of other non-HMS species. If gillnet gear were 
banned for HMS, fishermen in other fisheries would continue to catch 
finetooth sharks but without coordination with management entities and 
possibly without observer coverage. Furthermore, Federal regulations 
currently in place for the Southeastern U.S. Restricted Area prohibit 
the use of shark gillnet gear in the waters between Savannah, GA and 
Sebastian Inlet, FL. ``Shark gillnet gear'' is defined as a gillnet 
with stretched mesh greater than 5 inches. Gillnets that are less than 
5 inches stretched mesh could still be deployed if the directed shark 
gillnet fishery were banned, and finetooth sharks would continue to be 
landed as a result. Gillnets are already banned in Georgia and Florida, 
and are restricted to less than 100 feet in length for recreational 
fisheries in South Carolina.
    VMS is a critical tool in the enforcement of time/area closures. 
Because no gillnet closures were fully analyzed in the Draft 
Consolidated HMS FMP, the requirement to use VMS on gillnet vessels 
year-round was not considered as an alternative in this rulemaking. The 
existing requirement was originally implemented in 2003 by Amendment 1 
to the FMP for Atlantic Tunas, Swordfish, and Sharks, and requires that 
all vessels with gillnet gear onboard and a commercial shark permit 
have a functioning VMS unit onboard and that the unit is operational 
during all fishing activities, including transiting, between November 
15 and March 31 each year. This requirement applies to all areas 
between November 15-March 31 and not just in the vicinity of the 
Southeastern U.S. Restricted Area. If additional time and area closures 
were implemented outside of the right whale calving season, it may be 
prudent to reevaluate the need for a year-round VMS requirement for all 
shark drift gillnet vessels.
    The Atlantic Large Whale Take Reduction Team (ALWTRT) met in St. 
Augustine, FL, on April 10-11, 2006, to determine what course of action 
should be taken to prevent future interactions between right whales and 
gillnet gear. The ALWTRT did not reach consensus on all the management 
measures that were being considered at the meeting and are still 
deliberating on how to address the co-existence of gillnet fisheries 
and right whales on their calving grounds in the Southeastern U.S. 
Restricted Area. NMFS will work with the team to minimize mortality of 
these endangered marine mammals.
    Comment 6: Identification of finetooth sharks is difficult because 
they are often confused with blacktip sharks.
    Response: The Agency agrees that finetooth sharks are difficult to 
identify, especially for dealers who are required to positively 
identify shark species based on a log (carcass that has been gutted and 
finned). The mandatory HMS identification workshops for all shark 
dealers being implemented through this final rule will provide shark 
dealers with tools and instruction that they could employ to prevent 
mis-identification of finetooth sharks, and minimize the likelihood of 
confusion between finetooth and other species of Carcharinid sharks, 
including blacktip.
    Comment 7: Spanish mackerel fishermen catch finetooth sharks 
intermixed with blacktip sharks.
    Response: An analysis of Federal logbook data from 1999-2004 
indicates that 17 vessels landed finetooth sharks with gillnet gear and 
possessed both a Spanish mackerel and commercial shark permit. Since 
gillnets are a not selective gear and finetooth sharks, blacktip

[[Page 58086]]

sharks, and Spanish mackerel have similar temperature and habitat 
preferences, it is not unreasonable to assume that all three species 
are landed in some gillnet sets. The Federal logbook data indicated 
that Spanish mackerel were the most abundant non-HMS reported on trips 
that landed finetooth sharks and accounted for approximately 13.6 
percent (by weight) of landings.
    Comment 8: NMFS states that 80 percent of finetooth sharks are 
caught in gillnets, and the majority are landed in FL and GA, but 
gillnets are banned in these states. So finetooth sharks must not be 
all that coastal if they are being caught outside of state waters (> 3 
miles).
    Response: Generally speaking, finetooth sharks inhabit shallow 
coastal waters of the western Atlantic Ocean from North Carolina to 
Brazil. Finetooth sharks travel north to waters adjacent to South 
Carolina when the surface temperature of the water increases to 
approximately 20[deg]C then return south to off the coast of Florida 
when temperatures fall below 20[deg]C. Finetooth seem to prefer water 
temperatures in this range, and they feed primarily on menhaden, which 
are also generally found closer to shore. However, finetooth sharks are 
opportunistic and will likely inhabit more coastal state waters or 
locales offshore in Federal waters as oceanographic and feeding 
conditions allow. Finetooth sharks may not be harvested with gillnets 
within State waters of Flordia, Georgia, or South Carolina, however; 
they would still be vulnerable to fishing mortality resulting from 
interactions with gear in other fisheries and may be landed in Florida 
if they are caught in gillnets deployed in Federal waters.
    Comment 9: There are only five vessels in the fishery so where do 
all the catches come from?
    Response: The five gillnet vessels that target sharks with drift 
gillnet or strikenet gear are responsible for less than 10 percent of 
the commercial finetooth shark landings. The majority of finetooth 
sharks may be landed either in state waters, or by fishermen pursuing 
other species, such as those managed by the Gulf of Mexico or South 
Atlantic Fishery Management Councils (i.e., Spanish mackerel) or 
species that are not currently managed (i.e., kingfish). Since these 
fishermen hold directed shark permits, they can opportunistically keep 
all finetooth sharks; however, because their harvest of finetooth 
sharks is incidental to landing of other non-HMS species, these vessels 
have not been selected for HMS observer coverage.
    A recent analysis of landings data submitted via the Fishing Vessel 
Logbook/Gulf of Mexico Reef Fish/South Atlantic Snapper-Grouper/King 
and Spanish Mackerel/Shark (Coastal Fisheries Logbook) from 1999 - 
2004, indicates that a total of 46 vessels reported landings of 
finetooth sharks. Of these, 17 vessels had only a shark limited access 
permit, 17 vessels had both a shark and a Spanish mackerel permit 
(managed under the Coastal Pelagics FMP and its amendments by the South 
Atlantic Fishery Management Council), and 12 vessels had neither 
permit. In 2003, 15 vessels reported landings of finetooth sharks and 
all of these vessels had both a shark directed permit and a Spanish 
mackerel permit. Furthermore, since approximately 29 vessels are either 
targeting other non-HMS species and keeping finetooth sharks 
opportunistically, or are not covered under existing management 
regimes, these vessels would likely continue to contribute to finetooth 
shark fishing mortality by participating in coastal gillnet fisheries 
within the finetooth shark's range.
    Comment 10: NMFS received several comments questioning the 2002 SCS 
stock assessment, including: In 1995, 95 percent of finetooth landings 
came from PLL and not gillnets, but in 1996-2000, there was a shift to 
gillnet, and I do not understand why; the document says that less than 
1 percent came from the commercial fishery in the GOM, how can shrimp 
trawls not catch finetooth?; and, 100 percent of recreational landings 
came from the GOM, it just does not make any sense.
    Response: NMFS analyzed landings data from 1999-2004 for the 
analysis of alternatives to prevent overfishing of finetooth sharks in 
this rulemaking. It is possible that there are inconsistencies between 
more recent data analyzed for this rulemaking and data employed for the 
2002 stock assessment. This could be the result of misidentification or 
misreporting of finetooth sharks, general lack of data for the 2002 SCS 
stock assessment, or changes in fishing effort that may have occurred. 
The commenter does not specify which data set in the 2002 SCS 
assessment they are referring to; therefore, it is difficult to explain 
any potential inconsistencies. Alternative D4 (identify sources of 
finetooth shark fishing mortality to identify appropriate management 
actions) will include finetooth sharks as a select species for bycatch 
sub-sampling in the Gulf of Mexico shrimp trawl observer program which 
will provide additional bycatch and landings information from this 
fishery. In the past, finetooth sharks were not identified in the 
bycatch associated with shrimp trawls, however, they may have been 
present. The Marine Recreational Fisheries Statistics Survey (MRFSS) 
and the Texas Parks and Wildlife Service estimate that 14,811 finetooth 
sharks were landed between 1999 and 2005. The data used for the 2002 
SCS stock assessment indicate that there were several years when all of 
the recreational landings of finetooth shark occurred in the Gulf of 
Mexico. However, in other years, the majority of recreationally caught 
finetooth sharks were caught in both the South Atlantic and Mid-
Atlantic regions. This could be attributed to changes in oceanographic 
conditions and/or fishing effort.
    Comment 11: NMFS should investigate bycatch in other areas and 
consider the suite of management measures by other states that may be 
affecting finetooth shark mortality. In the State of Texas, there are 
bag limits but no commercial fisheries. Sharks can only be caught on 
rod and reel. They may be sold, but only one fish per boat. There are 
also some shrimp trawl closures (seasonal) that may provide some 
indirect benefits for finetooth and other sharks.
    Response: Since this comment was received, NMFS has contacted the 
Regional Fishery Management Councils and discussed possible fisheries 
where finetooth sharks may be harvested incidentally. The Agency has 
also compiled a list of state and Council regulations that affect 
gillnet and bottom longline fisheries and therefore may affect 
finetooth fishing mortality either directly or indirectly. Creel 
surveys from Texas Parks and Wildlife indicate that on average, nine 
finetooth sharks are landed a year, with 193 landings documented since 
1984. Shark specific landing restrictions similar to those imposed by 
Texas and other states, while helpful, may not significantly reduce 
finetooth landings as the majority of finetooth landings are from 
commercial fisheries in the South Atlantic that use non-selective gear. 
Successful management of this species will likely only be attained 
through cooperative efforts between the fishermen, States, Regional 
Fishery Management Councils, the Atlantic States Marine Fisheries 
Commission, and NMFS.
    Comment 12: NMFS received several comments expressing concerns that 
the Agency did not know where all finetooth shark landings are coming 
from, including: how is it that NMFS has catch data coming from 
dealers, but does not know which vessels are catching finetooth?; NMFS 
should call the dealers and find out which types of boats are 
offloading/selling the

[[Page 58087]]

finetooth; in 1999, you changed the criteria for boats that could get a 
directed shark permit so that the smaller croaker boats, etc. catch 
sharks, and they have to report to the Federal dealer, so you should be 
able to get the dealer information; and dealers should be required to 
provide vessel information with all shark landings.
    Response: General canvass data submitted by federally permitted 
shark dealers does not include information on the vessels from which 
seafood products were purchased. These reports are submitted every two 
weeks and include total purchases (landings) by species acquired by 
individual dealers. NMFS has contacted states between Texas and North 
Carolina to determine whether they had any records of finetooth sharks 
being landed. Many states maintain trip ticket programs that can be 
linked to individual vessels from which seafood products were 
purchased. This information was analyzed for the Florida trip ticket 
program because the majority of finetooth shark landings are occurring 
there. Starting in 2000, some Florida trip tickets reporting finetooth 
sharks identified the vessel. Of the vessels making these landings, six 
vessels had only a Federal shark permit, eight had both a Federal shark 
and Spanish mackerel permit, and three vessels had neither permit. The 
fact that vessels possess multiple permits reiterates the need for 
collaborative management efforts between NMFS, the Regional Fishery 
Management Councils, and individual states.
    Comment 13: NMFS received a comment based on the 2005 observer 
report for the Directed Shark Gillnet Fishery that stated that in the 
shark gillnet fishery, five vessels used three different fishing 
methods. Of the three methods, the strikenet gets the most finetooth 
sharks. This is a fishery that is targeting finetooth sharks. The 
average size is 123 cm for finetooth sharks, which is smaller than what 
the recreational fishery can take.
    Response: The 2005 observer report indicated an increase in the 
observed landings of finetooth sharks with strikenet gear. This gear is 
generally used to target schools of blacktip sharks, which are located 
from the air using a spotter plane. Historically, most observed 
landings of finetooth sharks occur in the drift gillnet segment of the 
fishery. 2005 may have been an anomalous year with regard to prey 
abundance or distribution, thereby making finetooth sharks more 
vulnerable to strikenet gear. Strikenet fishermen are subject to the 
same restrictions as other shark gillnet gear. The average size of 
finetooth sharks landed in 2005 was 123 cm, based on measurements 
obtained from 38 individuals.
    Comment 14: NMFS received a number of comments opposed to 
alternative D2, implement commercial management measures to reduce 
fishing mortality of finetooth sharks, including: A subquota for 
finetooth sharks is not necessary; I oppose alternative D2 unless the 
fishery is harvesting its entire commercial quota; and, we are opposed 
to alternative D2 because it appears that the allocated quota is not 
being overharvested.
    Response: The quota for small coastal sharks is not currently, and 
has never been, fully utilized. Observer data indicate that finetooth 
sharks are not the primary shark species harvested in the directed 
shark gillnet fishery. Since finetooth sharks have a tendency to roll 
upon contact with gillnet gear, prohibiting landings of finetooth 
sharks would not reduce fishing mortality, as most of these fish would 
then be discarded dead. Additional dead discards may encourage 
fishermen to make more trips to replace lost revenues, leading to more 
dead discards and an increase in fishing mortality level. Since the 
rest of the SCS complex is not experiencing overfishing and is not 
overfished, reducing the overall SCS quota was not considered in this 
FMP.
    Comment 15: NMFS received several comments in support of 
alternative D3, implement recreational management measures to reduce 
fishing mortality of finetooth sharks, including: I support alternative 
D3 because between 2000 and 2003, 6,732 and 5,742 finetooth sharks were 
reported to MRFSS. What is the expansion? What are the post-release 
mortality estimates?; recreational landings of finetooth sharks may 
cause the majority of mortality for yet another HMS species; mandatory 
circle hooks would reduce mortality; it appears that the actions 
described in the preferred alternative only intend to pursue commercial 
mortality and ignore recreational mortality; there is a problem with 
shark reporting and MRFSS; no one reports finetooth sharks to the 
Councils; and MRFSS does not have sharks listed, but that is where I 
would suggest looking for information.
    Response: NMFS is not selecting recreational measures (alternative 
D3) to reduce fishing mortality of finetooth sharks, at this time, 
because the vast majority of finetooth sharks are landed commercially, 
most recreational fisheries for finetooth sharks are likely in state 
waters, and there is no conclusive evidence that circle hooks would 
reduce post hooking release mortality of finetooth sharks. Between 1999 
and 2004, average landings of finetooth sharks in recreational and 
commercial fisheries were 11.2 (10 percent) and 93.6 (90 percent) mt 
dw/year, respectively. MRFSS data would include landings of finetooth 
sharks in state waters, which is where most finetooth sharks are found, 
however, NMFS can not directly implement regulations in state waters. A 
study by Gurshin and Szedlymayer (2001) estimated that only 10 percent 
(1 of 10 captured) of sharpnose sharks, a similar species, died as a 
result of capture on hook and line. Post release mortality depends on 
water temperature, hook used, whether or not live bait is used, and the 
overall condition of the shark at hooking. Estimates of finetooth shark 
landings were obtained from MRFSS and included in this rulemaking. NMFS 
also does not prefer recreational measures at this time because there 
is already a conservative bag limit in place and a minimum size well 
above the size at first maturity. Recreational measures may be 
considered in the future as necessary. NMFS will continue to explore 
all sources of finetooth shark fishing mortality, both recreational and 
commercial, and will consider further exploration of the landings 
reported to NMFS and individual states.
    Comment 16: Due to the lack of progress towards ending overfishing, 
finetooth sharks should be added to the prohibited species list while 
means to reduce mortality are investigated.
    Response: NMFS considered, but did not analyze, an alternative that 
included adding finetooth sharks to the prohibited species list for 
Atlantic sharks. Presently, finetooth sharks do not meet any of the 
four criteria defined under 50 CFR 635.34(c) for inclusion of species 
to the prohibited species list. The existing criteria are: (1) there is 
sufficient biological information to indicate the stock warrants 
protection, such as indications of depletion or low reproductive 
potential or the species is on the ESA candidate list; (2) the species 
is rarely encountered or observed caught in HMS fisheries, (3) the 
species is not commonly encountered or observed caught as bycatch in 
fishing operations, or (4) the species is difficult to distinguish from 
other prohibited species (i.e., look alike issue). With regards to 
these criteria, finetooth sharks are not currently overfished, are 
commonly encountered and observed in HMS fisheries, are commonly caught 
as bycatch in non-HMS fisheries, and are distinguishable from 
prohibited species upon capture (prior to dressing). As new biological 
and fishery data becomes available, NMFS may make adjustments to the

[[Page 58088]]

prohibited species list, as needed in the future.
C. Atlantic Billfish
i. ICCAT Landing Limits
    Comment 1: NMFS received a number of basic questions pertaining to 
the history, data, U.S. actions, and the requirements of the ICCAT 
marlin recommendations. The comments included: Where did the 250 marlin 
limit come from? What was the biological data used to limit the 
recreational harvest of blue and white marlin to 250 fish?; has the 250 
white marlin limit ever been exceeded?; what is the harvest quota for 
the commercial harvest of blue and white marlin?; what is the breakdown 
of white and blue marlin bycatch compared to the recreational catch?; 
and, where does NMFS get the authority to establish a quota (250-fish 
marlin limit)?
    Response: The annual landing limit of 250 recreationally caught 
blue and white marlin, combined, stems from ICCAT Recommendation 00-13. 
ICCAT recommendations are binding instruments that the United States, 
as a contracting party to ICCAT, is obligated to implement. 
Recommendation 00-13 was proposed by the United States and established 
a number of additional stringent conservation measures intended to 
improve the stock status of Atlantic marlin. The 250 marlin limit was 
the result of a dynamic international negotiation at ICCAT that 
included, and was supported by, the U.S. recreational, commercial, and 
government commissioners. Considerations in the U.S. negotiating 
position included, but were not limited to, data from the Recreational 
Billfish Survey and the Marine Recreational Statistics Survey, and 
intentionally included a buffer to account for changes in the fishery 
and improved monitoring. The Atlantic Tunas Convention Act provides 
NMFS with the regulatory authority to implement ICCAT recommendations 
by authorizing the promulgation of regulations as may be necessary and 
appropriate to implement binding recommendations adopted by ICCAT. The 
250 marlin limit is for both blue and white Atlantic marlin combined, 
and was exceeded for the calendar year 2002, when the U.S. reported 279 
recreationally landed marlins. This exceedance was the result of 
methodological change that was applied to U.S. recreational landings 
retroactively. Further, while the United States exceeded its landing 
limit in that one year, the United States remained in compliance with 
Recommendation 00-13 because, as allowed by ICCAT Recommendation 00-14, 
the U.S. underharvest from 2001 was applied to the ``negative'' 2002 
balance and was of sufficient magnitude to allow the United States to 
comply with the recommendation. The United States does not have a 
commercial quota or allowable level of landings for Atlantic billfish. 
Commercial possession and sale of Atlantic billfish have been 
prohibited since 1988 in the United States. Internationally, commercial 
quotas vary by country. Foreign pelagic longline and purse seine 
vessels, the gear types that dominate commercial Atlantic billfish 
landings, are restricted to 50 percent and 33 percent of Atlantic blue 
and white marlin landings, respectively, from the years 1996 or 1999, 
whichever is greater. The breakdown of domestic commercial and 
recreational harvests varies considerably by year and are presented in 
detail in Chapter 4 of the Final Consolidated HMS FMP. For the period 
1999 - 2004, pelagic longline dead discards and recreational harvests 
of Atlantic blue marlin averaged 44.2 metric tons (mt) and 22.9 mt, 
respectively; Atlantic white marlin averaged 31.8 mt and 2.3 mt, 
respectively; and Atlantic sailfish averaged 24.5 mt and 81.6 mt, 
respectively. These numbers do not necessarily reflect the true 
mortality contributions of each sector to the fishery. Recent data on 
post-release mortality indicates that the aggregate domestic 
recreational billfish mortality contribution may be equal to, or 
greater than, the aggregate domestic pelagic longline billfish 
mortality contribution, in some years, and may be the result of the 
substantial difference in the scale of these fisheries.
    Comment 2: NMFS received public comment both endorsing and opposing 
preferred alternative E6, Implement ICCAT Recommendations on 
Recreational Marlin Landings Limits, for widely varying reasons, and 
with varying qualifiers. Comments in support of this preferred 
alternative included: We endorse alternative E6; I support alternative 
E6 because it has been five years since the ICCAT recommendation and we 
need stricter regulations; NMFS has to implement alternative E6 to 
comply with international obligations; NMFS must codify the 250-fish 
marlin limit because it came as a quid pro quo with other countries 
agreeing to measures. If the U.S. does not codify the 250-fish limit, 
it will result in loosening of restrictions in other countries, which 
we do not want; if something is not done now, ESA will take all the 
fisheries away from us. We should show we are doing all we can to stop 
the killing of marlin. NMFS should implement the 250 marlin limit and 
the calendar year; I'm not opposed to the 250-fish limit (alternative 
E6), but somehow the U.S. got into a bad deal and is stuck with it; and 
I support alternative E6 only if the original accounting system (RBS 
data) is used to count U.S. landings.
    Response: NMFS agrees that the United States is obligated to 
implement the 250 recreationally caught Atlantic marlin landing limit 
and that more needs to be done to reduce fishing mortality levels on 
these species if they are to recover. The U.S. landing limit was part 
of a comprehensive plan to begin the process of rebuilding Atlantic 
marlins and that obligated other nations to make substantial sacrifices 
on behalf of their fishing interests. NMFS shares concerns that a 
failure of the United States to fully implement an ICCAT recommendation 
may allow other nations to rationalize non-compliance on their behalf. 
NMFS further acknowledges that domestic implementation of the 250 
Atlantic marlin landing limit has taken longer than anticipated. The 
United States has led international conservation efforts on Atlantic 
marlin and other species and will maintain its credibility and 
leadership role on these issues by fully implementing its international 
obligations through the adoption of the selected alternatives.
    NMFS believes that adoption of ICCAT recommendation 00-13 was an 
important step toward stemming long-term declines in Atlantic marlin 
populations and rebuilding their populations. Under this agreement, the 
U.S. was limited to landing 250 recreationally caught blue and white 
marlin combined on an annual basis, as previously discussed. The U.S. 
has reported marlin landings below the 250 fish limit in three of the 
previous four years. Other ICCAT nations whose fishermen catch and sell 
Atlantic marlin were obligated to reduce their pelagic longline and 
purse seine landings of blue marlin by 50 percent and white marlin by 
67 percent. The recommendation also required release of live marlins 
brought to the vessel along with other various restrictions. As 
conditions in the fishery change, NMFS will continue to review the 
appropriateness of measures contained in the ICCAT recommendations and 
seek changes as appropriate.
    NMFS acknowledges the concerns expressed by anglers regarding the 
use of a different accounting methodology for compliance purposes than 
was originally used to contribute to the negotiation of the 250 marlin 
limit.

[[Page 58089]]

However, as discussed in the response to Comment 1, the 250 marlin 
limit was based in part on RBS and MRFSS data, but also intentionally 
included a buffer to account for changes in the fishery and improved 
monitoring. The number was the result of a negotiation at ICCAT and not 
a specific scientific methodology. Under the recommendation, the United 
States is obligated to report all verifiable recreational landings of 
Atlantic blue and white marlin for compliance purposes. New sources of 
data on domestic recreational landings have been developed since the 
2000 negotiation, including catch-card programs in North Carolina and 
Maryland as well as the billfish and swordfish reporting line, which 
provide a small number of additional marlin each year. These sources of 
data have represented a very limited number of verifiable fish in any 
given year, with tournaments representing the majority of landings.
    Comment 3: Comments opposing preferred alternative E6, Implement 
ICCAT Recommendations on Recreational Marlin Landings Limits, included: 
We cannot comprehend why NMFS, knowing of our small percentage of the 
harvest would even consider establishing severe restrictions on the 
recreational harvest; this alternative A6 is unnecessary and arbitrary 
and should be eliminated, especially since the fishery is mostly catch 
and release; it should be removed at the 2006 ICCAT meeting; from a 
conservation and negotiating standpoint, the 250 landing cap is neither 
needed nor of any value to the United States; mandating this cap when 
low marlin landings are already driven by a strong, voluntary 
conservation ethic will do little or nothing to reduce overall marlin 
mortality; why implement increased size limits to avoid reaching the 
250 mark, when the existing regulations seem to work?; there should be 
a provision for underages and overages; the 250 marlin limit derives 
only from tournament landings and is not an appropriate limit for the 
fishery as a whole; if NMFS restricts landings of marlin species to 250 
fish and prohibits white marlin catches for five years, tournament 
fishing will take a massive economic hit. Towns that host tournaments 
would have to rely on an alternative form of tourism; I oppose 
Alternative E6 because it will cause economic harm, unless anglers 
switch to blue marlin; 250 fish are insignificant compared to longline 
bycatch mortality; and alternative E6 is problematic considering the 
unknown landings in the Caribbean. The large landings of blue marlin in 
Puerto Rico can be addressed through enforcement of existing management 
measures (minimum size, no sale, etc.); and, we must address the 
foreign sources of billfish mortality at ICCAT if we are to achieve the 
recovery of billfish stocks.
    Response: NMFS disagrees that the selected alternative to implement 
the ICCAT established recreationally caught marlin landing limit, is 
unnecessary or arbitrary. This alternative will implement U.S. 
obligations negotiated as part of a key international agreement that 
has the potential to dramatically reduce fishing mortality of Atlantic 
marlins. As discussed in the response to Comment 1, the United States 
is obligated to implement ICCAT recommendations under the Atlantic 
Tunas Convention Act. Further, to maintain credibility and leadership 
on international billfish conservation issues, and limit opportunities 
for foreign nations to rationalize potential non-conformity with 
billfish conservation measures, the United States must abide by its 
international obligations. Unilateral elimination of the 250 marlin 
landing limit is not an option available to the United States. However, 
should ICCAT choose to do so during a future Commission meeting, it 
could remove the restriction thereby allowing the United States to 
follow suit. The implementation of U.S. international obligations is 
critical to a credible negotiating position and reduces the ability of 
other nations to rationalize potential non-conformity with 
international billfish conservation measures. Under the selected 
alternative, size limits will only increase if the United States is 
approaching its 250 marlin limit. The intent of a potential in-season 
minimum size limit increase is to minimize impacts to the fishery by 
slowing landings and allowing the fishery to continue until the 250 
fish limit is reached but not exceeded. Allowing landings to continue 
at a slower pace over a longer period in the fishing year is 
anticipated to have fewer socio-economic impacts than a shift to catch 
and release only fishing earlier in a given year. Consistent with ICCAT 
Recommendation 00-14, this rule mandates carry-over of overharvest and 
allows for carry-over of underhavest. The 250 marlin limit did not stem 
from only tournament landings. The 250 fish limit is appropriate for 
the U.S. directed billfish fishery at this time. NMFS disagrees that 
implementation of the 250 marlin limit will cause substantial adverse 
economic impacts. As discussed in the response to Comment 2, the United 
States has landed only 75 percent of its landing limit, on average, 
over the past four years and in half of the years reviewed, the United 
States has been 40 percent below the allowable landing limit for 
recreationally caught Atlantic marlin.
    Further, this rule to implement the ICCAT recreational marlin 
landings limit was specifically designed to minimize economic impacts 
if fishing or retention patterns change and cause the United States to 
approach the 250 marlin limit. Should the 250 marlin limit be achieved, 
because few marlin are landed (see the response to Comment 2), NMFS 
believes that it would occur relatively late in the fishing season, 
thereby affecting a limited number of fishery participants and 
resulting in relatively minor impacts to the fishery as a whole. There 
could potentially be heightened localized impacts in a small number of 
communities, where, for instance, tournament participation may be 
reduced or a tournament cancelled. However, based on the significant 
level of catch and release fishing practiced in the Atlantic billfish 
fishery (75 to 99 percent), NMFS believes any reductions in 
participation would be minor as fishermen could still catch and release 
Atlantic marlin.
    Based on public comment that indicated more substantial concerns 
over potential adverse economic impacts to the fishery if catch and 
release only fishing for Atlantic white marlin were required, as well 
as a number of other factors including, but not limited to, the 
impending receipt of a new assessment for Atlantic white marlin, 
upcoming international negotiations on Atlantic marlin, and a somewhat 
limited ecological benefit, NMFS did not select the alternative to 
allow catch and release only fishing for Atlantic white marlin. NMFS 
acknowledges that the 250 recreational marlin allocated to the United 
States represent a small portion of total billfish mortality from the 
full ICCAT pelagic longline fleet. However, from a domestic 
perspective, if the full allocation of 250 marlin was landed by the 
recreational sector, it would represent approximately one-third (35 
percent) of the annual number of Atlantic marlin (blue and white 
combined) discarded dead from the domestic pelagic longline fleet, on 
average, over the four year period 2001-2004. Total mortality inflicted 
upon the stock is of more importance to the overall health of the stock 
than landings or dead discards. As noted in the response to Comment 1, 
recent estimates and data on post-release mortality indicate that the 
aggregate

[[Page 58090]]

domestic recreational white marlin mortality contribution may be equal 
to or greater than the aggregate domestic pelagic longline white marlin 
mortality contribution, in some years. This appears to be a result of 
the substantial difference in the scale of these fisheries. NMFS 
acknowledges that there is some uncertainty associated with marlin 
landings statistics from the U.S. Caribbean, and the Agency is working 
to improve these statistics by increasing enforcement of existing 
permitting and reporting requirements, including those for tournaments. 
Finally, NMFS agrees that foreign sources of billfish mortality must be 
addressed at ICCAT if Atlantic billfish stocks are to recover. As such, 
the United States will continue its efforts to champion billfish 
conservation at ICCAT and in other appropriate fora.
    Comment 4: NMFS received a number of comments asking for 
clarification of authority and the regulations pertaining to the 
potential implementation of alternative E6, Implement ICCAT 
Recommendations on Recreational Marlin Landings Limits, including: 
Would the ``priority'' be given to tournaments in catching the 250 fish 
limit?; if 20 tournament boats catch and release 10 fish in the season, 
what are the rest of the private and recreational anglers and thousands 
of boats to do? Can the unharvested portion of the 250 fish limit be 
carried over into the next year? Once the quota is established, which 
we have never approached, except for the year NMFS counted differently, 
then what happens?; and, does the U.S. have the authority to reduce the 
250-fish limit? It goes against ICCAT. In every other case, the U.S. 
must give fishermen a reasonable opportunity to catch fish.
    Response: The 250 recreationally caught marlin landing limit 
applies to the Atlantic recreational billfish fishery as a whole. NMFS 
does not intend to assign Atlantic marlins that are available for 
landing to any particular sector or component of the recreational 
fishery in this rulemaking. NMFS appreciates the concern expressed by 
some anglers regarding the opportunity to land a fish, given the large 
number of participants in the fishery. However, the United States has 
been bound by the 250 recreationally caught Atlantic marlin landing 
limit since June of 2001, and only in one year has that 250 fish number 
been achieved, as previously discussed. Under this rule to implement 
ICCAT recommendations on recreational marlin landings limits, if the 
landings limit is approached, regardless of whether those fish are 
landed by a small number of vessels or by many individual vessels, the 
Agency will consider the appropriateness of an inseason minimum size 
increase or prohibition on retention based on the criteria identified 
in the discussion of the selected alternative in Chapter 4 of the Final 
Consolidated HMS FMP, and contained in this final rule. Even if 
retention were prohibited for the remainder of a given fishing year, 
anglers could continue catch-and-release fishing for Atlantic marlin, 
and Atlantic sailfish would be available for landing. As previously 
discussed, 75 to 99 percent of all billfish are currently released on a 
voluntary basis, so NMFS anticipates little disruption in the fishery, 
should either a minimum size increase or a catch-and-release fishery 
become necessary. As discussed in the response to Comment 3, consistent 
with ICCAT Recommendation 00-14, this rule will mandate carry-over of 
overharvest and will allow for carry-over of underhavest into the next 
management period. The Agency will monitor recreational landings of 
Atlantic blue and white marlin and will make decisions as appropriate 
regarding in-season management actions based on the decision criteria 
identified in the HMS FMP and in this final rule. NMFS is not reducing 
the 250 recreationally caught marlin landings limit.
    Comment 5: NMFS received a number of suggestions for substitute 
alternatives to preferred alternative E6, including: Spread the 250 
fish limit over 12 months so that all areas get to land marlin (spatial 
and temporal); divide the 250 fish limit up by state. Let the states 
exchange billfish for bluefin tuna quota until each state can support 
the tournaments they need to; white and blue marlin should have 
separate limits because they are such different animals; and, not 
landing the 250 marlin recreational landing limit and eliminating the 
entire commercial billfish harvest could not solve any of the problems. 
To solve the problem, the United States should prohibit the importation 
of billfish, swordfish, and tuna from other countries.
    Response: NMFS appreciates these comments and suggestions. ICCAT 
recently conducted a stock assessment of blue and white marlin. As 
such, ICCAT may reconsider the existing management measures for marlin. 
If this occurs, NMFS may consider these and other options as needed, if 
necessary and appropriate, in a future rulemaking.
    Comment 6: I am opposed to counting fish that are caught by U.S. 
vessels fishing abroad against the United States' quota.
    Response: Consistent with its ICCAT obligations, the United States 
accounts for all recreational landings of Atlantic marlin by U.S. 
citizens. If an angler onboard a U.S. flagged vessel fishing in foreign 
waters or on the high-seas lands a fish, then the vessel owner, or 
their designee, is required to report that fish to NMFS.
    Comment 7: The British Virgin Islands (BVI) have separate 
regulations from the U.S. International coordination on HMS management 
is critical. In 15 minutes time, we can be out of U.S. Virgin Island 
waters. For us, the importance is the coordination of international HMS 
management. The BVI folks can catch and sell their billfish. What is 
being done on the international front to resolve these types of 
conservation concerns? The Draft Consolidated HMS FMP does not include 
anything that addresses international coordination efforts.
    Response: NMFS appreciates the frustration felt by anglers in the 
Caribbean regarding the current differences in regulations between the 
U.S. and the BVI. The Agency also agrees that Atlantic billfish 
management requires international cooperation to be successful. 
However, these types of international management issues are beyond the 
scope of this domestic rulemaking, and, as such, this final rule and 
the Final Consolidated HMS FMP do not address relations between the 
United States and the British Virgin Islands or any other nation on any 
subject. International management issues are handled jointly between 
Department of Commerce and the Department of State.
    Comment 8: Will the ICCAT landing limit be placed under ``Quotas'' 
in the Code of Federal Regulations (CFR), so that it will be easy to 
update annually as with tuna and swordfish quotas?
    Response: The majority of the regulatory text associated with ICCAT 
landing limits is contained in 50 CFR 635.27(d). This section also 
includes the Atlantic tunas and swordfish quotas, and is the most 
appropriate place for the marlin regulations.
    Comment 9: NMFS received a number of comments on the potential 
impacts of the 250 marlin limit in combination with the possible shift 
to only catch and release fishing for Atlantic white marlin, including: 
the U.S. will catch the 250-fish limit if white marlin landings are 
prohibited, because catches of other species will be redistributed. 
When you ban white marlin, people will fish for blue marlin. The bigger 
Northeast tournaments will fish harder on blue marlin; it's not 
desirable to make all of the fish under the limit be blue marlin; with 
the proposed change in the fishing year, some tournaments could be

[[Page 58091]]

penalized if they take place after the 250-fish limit is exceeded.
    Response: Based on public comment expressing concern over the ratio 
of potential adverse economic impacts to estimated ecological benefits, 
the prospect of a new international assessment, an impending 
international negotiation, and other factors, NMFS does not prefer to 
implement catch and release only fishing for Atlantic white marlin at 
this time. NMFS disagrees with the characterization that some 
tournaments may be penalized if they take place after the 250 fish 
limit is exceeded. The United States has been bound by the 250 fish 
limit since it went into effect at ICCAT in June of 2001. Since then, 
the only mechanism that the Agency had available to address fulfillment 
of the 250 marlin landing limit was to implement an emergency closure 
of the fishery. Thus, any tournament that would have occurred after the 
250 fish limit had been reached, even prior to this action, would have 
been required to operate on a catch and release basis only. However, 
they would have had little warning. This rule was specifically designed 
to minimize the likelihood of a shift to catch and release only fishing 
for Atlantic marlin. It will allow the Agency to slow marlin landings 
by quickly increasing minimum size(s) for the specific purpose of 
avoiding a mandatory shift to catch and release only fishing for 
Atlantic marlin, if possible, to minimize adverse impacts. If the ICCAT 
recreationally caught marlin landings limit is still achieved, despite 
the minimum size increase, then the Agency can quickly mandate catch 
and release only fishing. Thus, any tournament that occurs, or would 
have occurred, after the 250 fish limit is/was achieved, either prior 
to implementation of this action or after, would have to operate under 
an all release scenario. This final rule actually benefits tournaments 
because it allows NMFS to implement in-season minimum size increases, 
thereby reducing the likelihood of exceeding the 250 limit and forcing 
a shift to an all release fishery. Further, this final rule includes a 
14-day delayed effective date, which will further allow tournament 
operators and billfish anglers to adjust to any possible in-season 
management actions.
    Comment 10: NMFS received a number of comments regarding carry over 
of underharvest and overharvests, including: if NMFS intends to 
implement the 250-fish landing limit, underages should be added to the 
next year's limit and fishermen should not be penalized if the limit is 
exceeded; the U.S. should mandate that underages be carried-over like 
every other quota; codifying the 250-fish limit is not a problem, but 
the proposed regulations with respect to overages and underages is 
unacceptable. Rulemakings to deal with underages should not be 
necessary.
    Response: As discussed in the response to Comment 3 above, this 
final rule mandates carry-forward of overharvest and allows carry-
forward of underharvest, consistent with ICCAT Recommendation 00-14. A 
failure to account for overharvest, as suggested by one commenter, 
would be inconsistent with ICCAT Recommendation and result in non-
compliance by the U.S. The U.S. has pledged to its ICCAT partners not 
to carry forward underharvest until uncertainty surrounding landings of 
marlin in the Commonwealth of Puerto Rico and the U.S. Caribbean is 
reduced. The Agency will publish a notice in the Federal Register to 
decrease or increase the annual 250 marlin landings limit resulting 
from the carry forward of over- or underharvests of Atlantic marlins. A 
rulemaking will be required to increase or decrease the 250 marlin 
recreational landing limit resulting from a new ICCAT recommendation.
    Comment 11: NMFS received several questions, comments, and 
suggestions on billfish monitoring and reporting, including: how 
comprehensive or adequate is the monitoring of recreational billfish 
landings?; how would the public know when 250 fish are landed? Marlin 
recreational data collection methods are not accurate. Ninety percent 
of fish caught now are not reported. NMFS should implement mandatory 
logbooks for all permitted HMS fisheries, commercial and recreational, 
and require that trip reports be submitted because MRFSS interviews are 
not effective; enforcement is lacking. That is why people do not report 
their billfish landings. NMFS should develop a better system to account 
for marlin landings, such as tail tags; and, NMFS is not receiving all 
non-tournament marlin landings. There are clubs that land marlin and do 
not report them. NMFS should instead require each club to report their 
marlin landings, just like tournaments are currently required to do. 
Penalties should be imposed on fishing clubs that do not report.
    Response: NMFS has a comprehensive system in place to record 
billfish landings that includes the Recreational Billfish Survey, the 
Atlantic HMS Non-tournament Billfish and Swordfish Reporting system, 
the Large Pelagics Survey (including dockside intercepts), and the 
Marine Recreational Fishing Statistics Survey (including dockside 
intercepts), as well as cooperative agreements to access landings tag/
card data from the states of North Carolina and Maryland. NMFS is 
always trying to improve its data collection systems, and this may 
include future tagging programs, log book reporting programs, and 
improvements to the MRFSS, LPS and other systems. If the 250 marlin 
landing limit is achieved, NMFS will likely notify the public via a 
number of mechanisms, including: publication of a notice in the Federal 
Register, faxing notices to interested stakeholders, notification of 
the HMS consulting parties, telephone contact with recreational 
constituent leaders, posting information on the HMS website, placing 
information on the HMS Information telephone line, and working with 
popular sportfishing magazines and websites to notify constituents, 
along with other means, as appropriate. NMFS encourages the public to 
continue to suggest potential improvements. It should be noted however, 
that any reporting system relies on the willingness of anglers to 
accurately report. When this does not occur, the veracity of the data 
is compromised. NMFS acknowledges that recreational Atlantic billfish 
landings data do not account for every billfish landed, and thus some 
level of uncertainty surrounds billfish landings estimates. NMFS has 
undertaken efforts to improve enforcement of reporting requirements, 
has improved the MRFSS and LPS, and has recently received a report from 
the National Research Council that may allow for improvements to be 
made to some data collection systems.
    Comment 12: NMFS received contrasting comments on the proposed 
five-day minimum notification period for in-season billfish management 
actions intended to ensure compliance with the ICCAT 250 marlin landing 
limit. Comments opposing a minimum five-day notification window 
included; we support alternitive E(6), establish the 250 recreationally 
caught marlin landing limit. However, 21 days would be the minimum 
acceptable notice period; if an additional increase in minimum size 
becomes necessary, a notice for an inseason adjustment should be given 
at least 30 days in advance. This will give tournament directors ample 
time to notify participants of a size change; tournament directors will 
need more than a few days (about a month) to make changes to their 
regulations, minimum sizes, and brochures if the United States 
approaches the 250-fish marlin limit;

[[Page 58092]]

and, five days is not enough time to make changes to the Atlantic 
billfish regulations and to inform the public of such changes, as 
specified in Preferred Alternative E6, which would implement ICCAT 
Recommendations regarding recreational marlin landings. NMFS will 
probably just shut down tournaments. Most HMS tournaments print their 
information packets long before their start date. To the extent that 
in-season marlin adjustments can be avoided, they should be. Comments 
supportive of a minimum five day notification period for in-season 
management action included: A five-day notice should provide sufficient 
time for in-season billfish management actions. Bluefin tuna has a 
shorter notice period. Especially with the Internet, five days is 
sufficient time for billfish regulatory notification for changes in 
size limits or closures.
    Response: NMFS appreciates the concerns expressed by tournament 
operators and fishery participants that a five-day minimum delay in 
effective date may present difficulties with regard to potential rule 
changes just prior to or during a tournament. In selecting a period for 
notification and implementation of potential in-season regulatory 
changes to ensure compliance with ICCAT recreational marlin landings 
limits, NMFS sought to balance the need to act quickly, if necessary, 
while providing an appropriate period of time to adequately notify the 
public of any such regulatory changes. If too short of a period were 
selected, anglers and tournament operators may not have time to become 
aware of the regulatory changes. If too lengthy of a period were 
selected, restrictions may be enacted too late to ensure compliance 
with ICCAT recommendations or stave off more stringent in-season 
management measures. Based on public comment requesting additional 
advance notice, a review of the estimated time necessary to collect and 
analyze landings information and project the date at which regulatory 
action may become necessary, this rule provides a delay in the 
effective date of 14 calendar days for in-season billfish management 
actions, inclusive of the date of publication in the Federal Register. 
NMFS has determined that providing more than a 14 calendar day minimum 
delay in effective date would not provide the Agency sufficient control 
over the fishery if landings rates were high. NMFS believes that this 
14 day period will still allow the agency to implement regulatory 
changes in a timely manner, thus ensuring compliance with ICCAT 
recommendations or staving off more stringent in-season management 
measures and will provide anglers and tournament operators an improved 
ability to adapt to any potential in-season changes. NMFS also believes 
that there is a substantial misunderstanding of this provision. The 
minimum 14 day delay in effective date means that upon publication, any 
in-season action to increase the minimum legal size of Atlantic marlin 
or requirement to shift the fishery to catch and release only cannot 
become effective in less than fourteen days. It does not mean that no 
more than 14 days advanced notice can be provided to the public, 
tournament operators, and anglers. The Agency will seek to project 
potential regulatory action as far ahead as reasonably possible to aid 
in mitigating any potential adverse impacts to the extent practicable.
ii. White Marlin Landing Restrictions
    Comment 13: NMFS received a number of comments in support of 
alternative E7, Allow Only Catch and Release Fishing for Atlantic White 
Marlin from January 1, 2007 to December 31, 2011. Comments in support 
of this alternative included the need for NMFS to do all it can to 
avoid having Atlantic white marlin placed on the Endangered Species Act 
(ESA) List of Threatened and Endangered Species; the need to reduce 
fishing mortality to the greatest extent possible to help rebuild 
overfished populations; statements that there is no reason to land 
Atlantic white marlin in tournaments because there are techniques to 
verify releases, including the use of video and still cameras; it makes 
sense to prohibit all landings, if not all directed fishing for white 
marlin, since they are in severe decline; we support alternative E7, 
the Agency has the authority to remove the requirement earlier than 
five years if the assessment shows that the stock is improving; and, 
there is strong support for prohibiting the landing of white marlin in 
Florida and the Gulf.
    Response: The Agency appreciates these comments, however, based on 
public comment indicating more significant concerns over potential 
adverse economic impacts to the fishery if catch and release only 
fishing for Atlantic white marlin were required, as well as a number of 
other factors, including but not limited to, the impending receipt of a 
new stock assessment for Atlantic white marlin and upcoming 
international negotiations on Atlantic marlin, NMFS did not select the 
alternative to prohibit landings of Atlantic white marlin at this time. 
The implementation of circle hook requirements is an important first 
step in reducing mortality in the directed billfish fishery. NMFS may 
consider catch and release only fishing options for Atlantic white 
marlin as well as other billfish conservation measures in future 
rulemakings, as necessary and appropriate. In regard to the Atlantic 
white marlin ESA listing review, any management measures in place at 
the time of the review would be considered during deliberations of the 
listing review team. NMFS cannot forecast the impacts of any particular 
management action on the outcome of the anticipated ESA listing review.
    Comment 14: NMFS received a number of comments opposing alternative 
E7, Allow only catch and release fishing for Atlantic white marlin from 
January 1, 2007 to December 31, 2011. Those comments include: allowing 
only catch and release recreational fishing for Atlantic white marlin 
would have substantial adverse economic impacts on the recreational 
fishing community, including charter boat operators, shoreside 
facilities, and entire communities that host white marlin tournaments; 
NMFS underestimated the negative economic impacts of prohibiting 
landings of Atlantic white marlin; prohibiting landings of white marlin 
would do little to improve the population status of the species, the 
landings prohibition is unnecessary given the strong conservation ethic 
among U.S. anglers and as evidenced by the high release rate in the 
U.S. recreational fishery; the entire U.S. recreational fleet landing a 
few white marlin each year has little or no impact on billfish stocks; 
what is the rationale for prohibiting recreational landings of white 
marlin given the small number of recreational landings and the large 
economic impact generated by fishing for white marlin?; and, I do not 
believe in mandatory catch and release. It does not work and the public 
will not support it.
    Response: In the Draft Consolidated HMS FMP, the Agency preferred a 
catch and release only alternative for Atlantic white marlin as well as 
a circle hook requirement for the tournament billfish fishery to reduce 
mortality and maximize the associated ecological benefits in the 
directed billfish fishery. NMFS received strong public comment opposed 
to the Atlantic white marlin catch and release alternative. As 
discussed under the response to Comment 13, NMFS is not prohibiting 
landings of Atlantic white marlin at this time. However, the Agency 
believes the implementation of the circle hook requirement is an 
important first step in

[[Page 58093]]

reducing mortality in the directed billfish fishery. NMFS appreciates 
these comments and will consider catch and release only options as well 
as other billfish conservation measures in future rulemakings, as 
necessary and appropriate.
    Comment 15: NMFS received a number of comments specifically 
pertaining to the potential impacts of alternative E7 (which would 
allow only catch and release fishing for Atlantic white marlin from 
January 1, 2007 to December 31, 2011) on tournament operations. Those 
comments include: the proposed rule would unfairly affect white marlin 
tournaments along the United States mid-Atlantic coast; few white 
marlin are landed in tournaments; tournaments are the only cost and 
personnel effective means to scientifically sample Atlantic white 
marlin; alternative E7 would change the dynamic of fishing tournaments 
from contests where an anglers' luck or skill may prevail (biggest 
fish) to one where only skill would prevail (most fish) and would thus 
decrease participation; alternative E7 would create operational 
problems for tournament operators pertaining to verification of 
released fish; a fish killed and discarded as bycatch in the pelagic 
longline fishery has no direct economic impact. However, a fish killed 
as a tournament trophy or through release mortality contributes to a 
multi-million dollar industry and benefits the local economy and the 
nation as a whole; if alternative E7 is implemented, people will not go 
to tournaments to see the results; my concern for tournaments is that 
people like to see the result on the docks. If NMFS is going to full 
catch and release for white marlin, I do not believe that people will 
look at tournament videos of catches. The social aspect and behavior of 
tournament participants will be negatively impacted; there are 
decreasing numbers of tournament participants who are participating in 
the White Marlin Open under the catch and release category; Maryland 
has the most to lose by prohibiting landings of white marlin. Ocean 
City is the white marlin capital of the world. Ocean City should not 
suffer the loss of the White Marlin Open; and, alternative E7 is 
unnecessary, will accomplish nothing for conservation, and would have a 
significant impact on billfish tournaments in the mid-Atlantic areas.
    Response: As stated above in the response to Comments 13 and 14 of 
this section, NMFS has not selected the catch and release alternative 
for Atlantic white marlin in the Final Consolidated HMS FMP. Based on 
overwhelming public concerns for the social and economic impacts 
resulting from a shift to catch and release only fishing for white 
marlin, as well as the recognition of the limited ecological benefits 
relative to the potentially adverse social and economic impacts to 
billfishermen, tournaments, and other shore side businesses, as well as 
other reasons discussed under the response to Comment 13, the Agency 
has determined that it is premature to implement this measure at this 
time. The Agency will, however, consider catch and release only options 
as well as other billfish conservation measures in future rulemakings, 
as necessary and appropriate.
    Comment 16: NMFS received comments requesting that the Agency 
modify alternative E7 to allow for some tournament landings of white 
marlin. Those comments include: if the Agency cannot go with zero 
landings, then implement a cap for tournaments that already have a 
history of landing white marlin. Do not throw out the whole proposal; 
and, if NMFS prohibits landings of white marlin, the Agency should 
allow retention of recreationally caught white marlin in tournaments or 
when prominent billfish tournaments are scheduled.
    Response: NMFS appreciates these comments and suggestions to 
address mortality in the directed billfish fishery. At this time, the 
Agency does not believe that only allowing Atlantic white marlin to be 
landed in tournaments is the most appropriate solution, as nearly all 
Atlantic white marlin reported as retained are landed in tournaments. 
The Agency will, however, consider catch and release only options as 
well as other billfish conservation measures in future rulemakings, as 
necessary and appropriate.
    Comment 17: The U.S. only lands less than 1 percent of the white 
marlin, so why worry about mortality?
    Response: The U.S. is responsible for approximately 4.5 percent of 
white marlin catches in the Atlantic. Fishing mortality rates are a 
concern regardless of the size of the U.S. contribution because the 
current fishing mortality rate is more than eight times the level that 
the species can sustain. As a steward of the fishery, it is appropriate 
for the U.S. to work towards reducing and limiting both domestic and 
international fishing mortality rates. The U.S. will continue its 
efforts to reduce billfish mortality domestically and through ICCAT at 
the international level.
    Comment 18: NMFS received comments concerned with fishermen 
shifting target species if white marlin landings are prohibited. Those 
comments include: it's not desirable to make all of the fish under the 
ICCAT 250 marlin limit be blue marlin, which would happen if white 
marlin landings are prohibited; I would not support a prohibition on 
landing white marlin because we will kill more white marlin converting 
to targeting blue marlin; and, I oppose alternative E7 because fishing 
effort will be redistributed to different species.
    Response: As stated in the responses to Comments 13 and 14 of this 
section, NMFS is not prohibiting landings of Atlantic white marlin at 
this time. NMFS understands the concern over potential increases in 
Atlantic blue marlin mortality, given the species' overfished status. 
The selected circle hook measure and measures to codify and ensure 
compliance with the ICCAT marlin landings limit will address mortality 
of both Atlantic blue and white marlin in the directed billfish 
fishery. The Agency may consider catch and release only options, as 
well as other billfish conservation measures, in future rulemakings, as 
necessary and appropriate.
    Comment 19: Tournament spectators can still be involved in release 
tournaments if you use large viewing screens playing movie clips 
showing the fight and release of marlins. Dead fish on the dock do not 
allow for this type of participation.
    Response: NMFS applauds the innovative efforts of some tournament 
organizers in working to limit marlin mortality. The Agency urges 
tournament organizers to be creative and to work to create formats that 
maximize the social and economic benefits from tournament operations 
while minimizing impacts to billfish resources.
    Comment 20: NMFS received comments recommending that the Agency 
should implement measures to further reduce marlin mortality in other 
fisheries. Those comments include: NMFS should implement additional 
regulations on the pelagic longline fishery, which is responsible for 
the majority of marlin mortality, not impose landings restrictions on 
recreational fishermen; alternative E7 places a restriction on 
recreational fishermen without addressing the real issue; I am opposed 
to alternative E7 because recreational landings are not the problem; 
and, the billfish fishery was supposed to be managed for the 
recreational sector and NMFS has failed to make any meaningful 
reductions in bycatch captured on longlines issue since 1997.
    Response: In recent years, the Agency has undertaken multiple 
rulemakings

[[Page 58094]]

intended to reduce bycatch and bycatch mortality in the pelagic 
longline fishery. Since implementing the 1999 FMP, NMFS has closed 
multiple areas to pelagic longline fishing, prohibited the use of live 
bait in the Gulf of Mexico, required the use of circle hooks, and 
required the possession and use of dehooking devices. The closed areas 
and live bait restriction were implemented, in part, to reduce the 
bycatch of billfish in commercial fishing operations. Circle hook and 
release gear requirements were implemented to reduce sea turtle bycatch 
and bycatch mortality, however, these measures likely contribute to 
reductions in billfish release mortality as well. Further, as discussed 
in more detail under the response to Comments 1 and 3, recent data and 
estimates on post-release mortality indicate that the aggregate 
domestic recreational billfish mortality contribution may be equal to 
or greater than the aggregate domestic pelagic longline billfish 
mortality contribution, in some years.
    Comment 21: NMFS received comments relating to the ESA listing 
review of white marlin. Those comments include: Would a prohibition on 
landings of Atlantic white marlin influence the potential listing of 
Atlantic white marlin under the Endangered Species Act?; and, selecting 
alternative E7 will not necessarily prevent an ESA listing of white 
marlin.
    Response: The listing review team would consider any management 
measures in place at the time of the Atlantic white marlin ESA listing 
review. NMFS cannot predict the effect of any particular management 
action on the outcome of the anticipated ESA listing review.
    Comment 22: The white marlin settlement agreement between NMFS and 
Turtle Island Restoration network does not preclude further regulation 
of billfish catches under the Magnuson-Stevens Act, but does require a 
complete reassessment of white marlin by the U.S. no later than 2007.
    Response: The Agency intends to complete the Atlantic white marlin 
ESA Listing Review on or before December 31, 2007, as provided in the 
settlement agreement. NMFS has the authority to impose additional 
restrictions on fisheries that interact with Atlantic white marlin, 
including the directed billfish fishery; however as discussed under the 
response to Comment 13, NMFS is not prohibiting landings of Atlantic 
white marlin at this time. The implementation of circle hook 
requirements is an important first step in reducing billfish mortality 
in the directed billfish fishery. NMFS will consider catch and release 
only options, as well as other billfish conservation measures, in 
future rulemakings if they are necessary and appropriate.
    Comment 23: NMFS received comments inquiring about the Agency's 
legal authority to prohibit landing of white marlin. Those comments 
include: NMFS does not have the legal authority to restrict landings of 
Atlantic marlin to levels below ICCAT landings limits; I am opposed to 
alternative E7 because it is contrary to giving fishermen a reasonable 
opportunity to catch fish as required by ATCA.
    Response: The ICCAT 250 marlin landings limit could apply to both 
species combined, or one species alone, if landings of the other 
species were to be prohibited domestically. ICCAT Recommendation 00-13, 
and the subsequent recommendations that modified it, did not include 
species specific landings limits or any references to particular 
landings ratios of Atlantic blue and white marlin. The ICCAT 
recommendations simply provided an aggregate annual landing limit that 
is not to be exceeded. Thus, if the landings of one marlin species were 
prohibited domestically, anglers would have 250 of the other marlin 
species available for landing, thereby providing a reasonable 
opportunity for anglers to fulfill their ICCAT landing limit.
    Comment 24: Why is there a time frame associated with alternative 
E7? The target should be MSY. The proposed time frame seems political. 
A biological threshold seems more appropriate.
    Response: NMFS believed that a five-year time frame would have 
allowed for adequate time to gauge the potential impacts of such 
measures on marlin stocks and determine, at that point, if the measures 
achieved the objectives of the fishery management plan. Additionally, 
NMFS is required to consider factors beyond biology in making 
management decisions. However, as noted in the response to Comment 13, 
NMFS has not selected this alternative in the Final Consolidated HMS 
FMP, but may consider landings prohibitions for Atlantic marlins and 
other species in future rulemakings, as necessary and appropriate.
    Comment 25: Recreational fishermen would release all billfish if 
they thought it would do any good. However, it will not. The U.S. has 
always said that its catch is an insignificant piece of the Atlantic-
wide take. The Draft FMP throws this concept out the window and directs 
its regulatory muscle at a tiny number of recreational billfish 
landings. It is as if NMFS is deciding to make them a prohibited 
species before the ICCAT stock assessment or the ESA status review.
    Response: NMFS believes that the majority of recreational fishermen 
understand the value of catch and release fishing for Atlantic billfish 
as supported by the 75 to 99 percent release rate in this fishery. NMFS 
believes that catch and release fishing significantly reduces the 
domestic mortality contribution to the Atlantic-wide stock. The 
implementation of circle hook requirements for this sector of the 
fishery is expected to significantly reduce post release mortality. The 
Agency recognizes that other ICCAT nations kill significantly more 
billfish than the U.S. In comparison to other nations, the U.S. 
landings and dead discards represent approximately 2.4 and 4.5 percent 
of total Atlantic landings of Atlantic blue and white marlin, 
respectively. Recent information suggests that the U.S. mortality 
contribution for Atlantic billfish may be significantly higher than 
previous estimates, given new studies on recreational post-release 
mortality. This rulemaking seeks to minimize this mortality.
    Comment 26: The entire U.S. recreational fleet and charter/
headboats are landing very few white marlin each year, approximately 
227 total fish over the last three years. These landings have little or 
no impact on the stock, but generate tremendous social and economic 
benefits for coastal communities particularly where tournaments are 
held.
    Response: NMFS acknowledges the significant social and economic 
benefits that the recreational billfish fishery provides to coastal 
communities. Additionally, NMFS acknowledges the limited conservation 
benefit that could be realized from a prohibition on the landings of 
Atlantic white marlin. This measure was preferred in the Draft 
Consolidated HMS FMP in addition to a circle hook requirement for 
tournament billfish fishermen. The Agency preferred these alternatives 
together in an attempt to maximize reductions in total Atlantic white 
marlin mortality resulting from the directed billfish fishery. However, 
as noted in the response to Comment 13, NMFS did not select this 
alternative in the Final Consolidated HMS FMP, but may consider 
landings prohibitions for Atlantic marlins and other species in future 
rulemakings, as necessary and appropriate. The Agency has selected a 
non-offset circle hook requirement for HMS permitted vessels 
participating in billfish tournaments. This measure is

[[Page 58095]]

anticipated to substantially reduce mortality without the potential 
adverse economic impacts associated with a prohibition on white marlin 
landings.
    Comment 27: NMFS received comments in support of alternative E8, 
which would allow only catch and release recreational fishing for 
Atlantic blue marlin. Additionally, one commenter added that 
alternative E8 may be needed if overfishing cannot be addressed.
    Response: This alternative was analyzed but not preferred in the 
Draft Consolidated HMS FMP or Final Consolidated HMS FMP due, in part, 
to potentially severe negative social and economic impacts, and for 
other reasons. The U.S. will continue its efforts to reduce billfish 
mortality both domestically and at the international level. 
Additionally, the Agency may consider catch and release only options 
for Atlantic blue marlin as well as other billfish conservation 
measures in future rulemakings, as necessary and appropriate.
    Comment 28: NMFS received comments opposed to alternative E8, which 
would allow only catch and release fishing for Atlantic blue marlin 
from January 1, 2007 to December 31, 2011. Those comments include: we 
are vehemently opposed to alternative E(8), catch and release only for 
blue marlin. This is not a conservation issue, this is a socio-economic 
issue and to implement alternative E8 would be economic suicide; and, 
this alternative exceeds the ICCAT Recommendations for this species. 
NMFS should focus on compliance with ICCAT's recommendations. The U.S. 
directed billfish fishery should be allowed to harvest its allocated 
quota.
    Response: The Agency did not select this alternative in the Draft 
Consolidated HMS FMP, however, it remains a valid management tool 
available to NMFS if warranted by stock status or other factors. NMFS 
selected an alternative that will fully implement U.S. international 
obligations contained in ICCAT Recommendation 00-13 and subsequent 
amendments. Additionally, the Agency has selected other domestic 
measures in the Final Consolidated HMS FMP to reduce post-release 
mortality of billfish stocks.
    Comment 29: By itself, alternative E8, which would allow only catch 
and release fishing for Atlantic blue marlin from January 1, 2007 to 
December 31, 2011, will not substantially reduce blue marlin fishing 
mortality unless 100 percent circle hook use, careful handling/release 
tools, procedures, and training are also required. Even then, unless 
such responsible actions are taken by foreign fisheries, especially in 
the directed fisheries, reducing the U.S. blue marlin fishing mortality 
is unlikely to have substantial conservation gains.
    Response: NMFS agrees that improved handling and release skills may 
reduce domestic post-release mortality of billfish, and that it is 
critical for foreign fishing nations to reduce total Atlantic billfish 
mortality to improve the stock status of these species. NMFS did not 
consider the other measures suggested in Comment 29, such as careful 
handling and release tools, and thus, they are beyond the scope of this 
rulemaking. NMFS may consider these measures in a future rulemaking, if 
necessary and appropriate. NMFS also agrees that international 
cooperation is essential to rebuilding Atlantic billfish populations 
and, as such, will continue to pursue international billfish 
conservation through ICCAT.
    Comment 30: NMFS should not impose any new restrictions on HMS 
tournaments until after 2006.
    Response: To provide Atlantic billfish tournament operators and 
participants time to acclimate to new regulations requiring the use of 
non-offset circle hooks when natural baits and or natural bait/
artificial lure combinations are deployed from HMS permitted vessels 
that are participating in billfish tournaments, NMFS has selected 
January 1, 2007, as the effective date for these requirements. Barring 
unforeseen circumstances, no new restrictions will be imposed on HMS 
tournaments during 2006.
    Comment 31: NMFS should consider a limited entry system for 
tournaments with a specific white marlin quota. Tournaments should be 
issued a permit and a quota for white marlin kills. Outside of 
tournaments, recreational vessel owners should be required to have a 
permit and to abide by a catch-and-release only policy. This would 
allow for the continuation of HMS tournaments, which provide the 
largest economic benefits. It would also facilitate more accurate 
counting of marlin, and provide some fish for biologists to conduct 
scientific research.
    Response: NMFS appreciates the suggestions submitted to the Agency 
regarding potential additional tournament regulations and other 
management suggestions for the directed billfish fishery, and asks 
commenters to continue to submit innovative ideas to improve billfish 
management. As discussed above, ICCAT has conducted a marlin stock 
assessment and may reconsider management measures for billfish at its 
annual meeting in November 2007. If this occurs, NMFS could consider 
comments such as these in future rulemakings, as necessary and 
appropriate.
    Comment 32: How many Atlantic white marlin are brought to the dock 
in tournaments each year?
    Response: Between 1999 and 2004, inclusive, a total of 144 Atlantic 
white marlin were reported to the Recreational Billfish Survey as 
landed in tournaments. According to RBS data, landings of Atlantic 
white marlin in tournaments ranged from a low of eight in 2000, to a 
high of 36 in 1999, and averaged 24 annually for the six year period 
under discussion.
    Comment 33: All fishing tournament participants should be required 
to use circle hooks, not just billfish tournament participants.
    Response: NMFS believes that the current severely overfished stock 
status of Atlantic blue and white marlin and the proven ability of 
circle hooks to reduce post-release mortality support the selected 
alternative to require use of non-offset circle hooks in billfish 
tournaments. However, NMFS believes that more data on the impacts of 
circle hooks on non-billfish species and other fisheries should be 
collected and analyzed prior to proposing additional hook and bait 
requirements for all HMS tournaments. NMFS may consider additional hook 
and bait requirements for other segments of the HMS recreational 
fisheries in future rulemakings, as appropriate.
    Comment 34: I spend $3,000.00 a year on the White Marlin Tournament 
in Ocean City, Maryland. There are five fishermen on the boat pumping 
$15,000 into the Ocean City, Maryland, economy on our boat alone. I do 
not want this tournament to end.
    Response: NMFS is interested in seeing a healthy HMS tournament 
industry continue operations and continue to provide benefits to the 
nation. The final management measures regarding Atlantic billfish, 
implementation of non-offset circle hook requirements under certain 
conditions in billfish tournaments, and the ICCAT recreational marlin 
management measures, have been crafted in a way to minimize and 
mitigate potential adverse socio-economic impacts and are not expected 
to have significant impacts on billfish tournaments. Please refer to 
Chapter 4 of the Final Consolidated HMS FMP for additional detail 
regarding the estimated impacts of the selected alternatives.
    Comment 35: NMFS received several comments, including one from the 
Gulf of Mexico Fishery Management Council, in favor of increasing the 
minimum size

[[Page 58096]]

limits for white and/or blue marlin, including: even a limited benefit 
is worth implementing; people interested in a smaller size limit are 
trying to make loopholes so they can catch and keep smaller fish; NMFS 
should increase the size limit of blue marlin because the Puerto Rico 
Game fish association has only taken 15 marlin all year in tournaments; 
increasing the size by approximately 40 percent, we would not have to 
apply the 250 fish cap; I support E4(b), increasing the minimum size of 
blue marlin because length and weight are correlated for blue marlin; 
increase the minimum size for blue marlin to 105 inches LJFL because 
most tournaments have a minimum weight of 400 pounds; increasing the 
minimum size for blue marlin would reduce the number of legal fish 
landed by one third; there should be at least a 106 inch minimum size 
limit to allow them to live for three more years and at least two years 
of spawning; and, I support a minimum size of 104 inches for blue 
marlin.
    Response: The Agency is not increasing minimum sizes of Atlantic 
blue or white marlin at this time for several reasons. Only limited 
conservation benefits might be attained by increasing the minimum sizes 
for marlin because relatively few blue and white marlin are landed on 
an annual basis. In 2004, 118 blue marlin and 18 white marlin were 
reported to ICCAT, comprised mainly of tournament landings, but also 
including North Carolina and Maryland catch card landings, and non-
tournament landings reported to HMS. Since the majority of landings 
occur in tournaments and many tournaments already have a minimum size 
greater than the current minimum size, increasing the minimum size may 
not have any significant ecological benefits. The Agency has also 
received information that white marlin might not display a consistent 
length-weight relationship, meaning that very few of these fish would 
even attain the minimum size if it were increased.
    The United States is currently well below the 250 fish limit 
imposed by ICCAT and, therefore, does not need to reduce landings to 
comply with international obligations at this time. Lastly, other 
management measures selected in this action (mandatory use of circle 
hooks when using natural bait by HMS permit holders in tournaments that 
have a billfish prize category and implementation of ICCAT 
recommendations that establish an in-season adjustment framework to 
increase minimum sizes or catch and release, if necessary) should 
result in the desired conservation benefits by reducing landings if the 
ICCAT landings limit is approached in the future and reducing post 
release mortality of billfish caught in tournaments. The Agency may 
consider permanent modifications to the minimum size in the future as 
necessary to ensure compliance with international obligations and 
facilitate rebuilding of blue and white marlin stocks.
    Comment 36: NMFS received numerous comments opposing the 
implementation of a minimum size for white and/or blue marlin as 
described in Alternative E4 (a), increase the minimum legal size for 
Atlantic white marlin to a specific size between 68 - 71 inches LJFL 
and Alternative E4 (b), increase the minimum size of blue marlin to a 
specific size between 103 - 106 inches LJFL, including: many 
tournaments already have a larger minimum size than what NMFS has 
implemented (i.e., 110 inches or 400 lb), therefore, no benefits will 
be realized from increasing minimum sizes; NMFS had already established 
minimum size limits for white and blue marlin and these limits should 
not be increased; because of the differences in growth patterns between 
white and blue marlin, an increased size limit for white marlin would 
be ineffective because these fish grow to size and then put on 
additional weight and not necessarily length; for white marlin weight 
and length are not closely correlated for fish above 62 inches LJFL; 
there is no rationale for increasing minimum sizes, because requiring 
circle hooks will accomplish the same thing; and, why implement 
increased size limits to avoid reaching the 250 mark, when the existing 
regulations seem to work?
    Response: NMFS did not select an increased minimum size for white 
or blue marlin at this time, however, NMFS may consider modifications 
to minimum sizes in the future, as necessary. NMFS is unaware of the 
exact number of billfish tournaments that currently require a minimum 
size greater than the current Federal regulations, however, they are 
numerous. Since this is where the majority of reported landings occur, 
increasing the minimum size may not result in significant positive 
ecological benefits. In 2004, all but 3 of the 149 billfish reported to 
ICCAT were landed in tournaments. The United States has been well under 
its ICCAT allocated quota of 250 billfish/year every year (except 
2002), and the measures in this final rule would increase the minimum 
size for Atlantic white and blue marlin if there were a possibility of 
approaching the landings limit in the future, thereby mitigating the 
need to permanently increase minimum sizes to comply with the ICCAT 
landings limit. NMFS also is mandating the use of non-offset circle 
hooks in billfish tournaments by HMS anglers when deploying natural 
baits to reduce post hooking mortality of released fish. Furthermore, 
because the majority of billfish are caught and released and catch 
rates are low (1.03 and 1.13 white and blue marlin per 100 hours 
angling, respectively), conservation benefits of increasing the minimum 
size may be minimal.
    Comment 37: NMFS received comments both opposing and supporting 
alternatives E4(a) and E4(b) on the basis that a larger size limit 
would result in fishermen targeting larger, more fecund females and 
that NMFS should consider a slot limit to protect these larger, more 
fecund, marlin.
    Response: Generally speaking, the likelihood of landing a more 
fecund female may increase if NMFS implemented a larger minimum legal 
size for blue marlin. For white marlin, the correlation between length 
and age or fecundity is less certain as current information indicate 
that white marlin may first put on length, and then weight. The fishery 
is generally opportunistic in nature, with a low CPUE, and with little 
ability for fishermen to ``target'' a large or small billfish. Further, 
the recreational billfish fishery is an overwhelmingly catch and 
release fishery. As such, while a larger legal minimum size may result 
in larger fish being landed, it is unlikely that anglers could 
successfully ``target'' larger billfish. NMFS appreciates the 
suggestion of analyzing a slot limit, and encourages anglers to 
continue to submit suggestions to the Agency. As discussed in the 
response to comment 35 above, NMFS did not select an alternative to 
change the minimum size but may reconsider minimum size changes, 
including slot limits, in the future.
    Comment 38: NMFS received a comment asking what data were used to 
determine the billfish size limits.
    Response: Size distributions from Atlantic billfish tournaments 
held from 1995-1997 were used to analyze minimum size alternatives 
contained in Amendment 1 to the Billfish FMP (1999), which resulted in 
the current minimum legal sizes for Atlantic billfish. Minimum size 
ranges analyzed for this rulemaking were based on RBS landings of white 
and blue marlin in tournaments between 1999-2004.
    Comment 39: NMFS received several comments in support of 
Alternative E5 (bag limit of one billfish/vessel/day), including: the 
United States is already

[[Page 58097]]

under such a limited quota for white and blue marlin (250 fish/year 
combined for both species) that a bag limit is necessary; a bag limit 
might result in some high grading, but it should not be much of a 
problem; and, if the United States recreational sector is limited to 
250 blue marlin and white marlin, it is inappropriate to let one boat 
come back with more than a single fish on any given day.
    Response: NMFS recognizes the concerns of anglers regarding 
allocation of fish, particularly given the strict marlin landings 
limits placed upon the United States. As discussed in Chapter 4 of the 
Final Consolidated HMS FMP, the United States is limited to 250 white 
and blue marlin, combined, on an annual basis, per ICCAT Recommendation 
00-13. Since 2001, the United States has only exceeded its annual 250 
fish limit one time (2002), and that was because of a modification to 
the accounting methodology for compliance with ICCAT. NMFS has selected 
the alternative to implement ICCAT Recommendation 00-13 in the Final 
Consolidated HMS FMP. At this time, there is little evidence suggesting 
that individual anglers are landing excessive numbers of marlin and 
potentially depriving other anglers of the opportunity to land a 
marlin. No multiple marlin trips have been reported to the Atlantic 
billfish and swordfish non-tournament landings system. However, NMFS 
may consider implementation of a bag limit in the future as necessary 
and appropriate.
    Comment 40: NMFS received several comments objecting to alternative 
E5 (bag limit of one billfish/vessel/trip) for varied reasons, 
including: it would encourage the culling of fish; landing a few fish 
is not the issue; and, a bag limit will not reduce post-release 
mortality of billfish unless careful handling and release guidelines 
are followed.
    Response: As discussed in the response to Comment 39, there is 
little evidence, at this time, that individual anglers are landing 
excessive numbers of marlin on individual trips and potentially 
depriving other anglers of the opportunity to land an Atlantic marlin. 
Further, as described in the response to Comment 39, overall landings 
of Atlantic marlin by U.S. recreational fishermen are low and well 
below the U.S. marlin landing limit. This is due, in large part, to the 
anglers who choose not to land marlin that are legally available for 
landing. NMFS is always concerned about the potential for increases in 
culling and discards which may result from regulation. NMFS 
acknowledges the limited conservation benefit that a bag limit may 
produce and agrees that a bag limit alone would not reduce post-release 
mortality. NMFS selected a circle hook alternative in the Final 
Consolidated HMS FMP that is expected to reduce post-release mortality 
of Atlantic billfish.
iii. Gears and Gear Restrictions
    Comment 41: NMFS received comments in support of non-preferred 
alternative E2, which would require the use of circle hooks in all HMS 
recreational fisheries when using natural bait, including: only a 
fraction of the offshore recreational effort occurs in tournaments so 
the conservation benefits would be larger if circle hooks were required 
in all offshore fisheries. This alternative would facilitate 
enforcement by requiring that all HMS fishermen use circle hooks; NMFS 
should require circle hooks, careful handling/release tools and 
training for all HMS hook and line fisheries that interact with white 
marlin. This may be the only way for NMFS to prevent an ESA listing for 
white marlin. It cannot be ignored that the directed recreational 
fishery is likely the majority of domestic white marlin mortality, 
which is a minute percent. Unfortunately, even such a sacrifice may not 
be successful, unless adopted by other foreign fisheries, especially 
directed fisheries that interact with white marlin. Circle hooks are 
needed for all HMS fisheries, not just in tournaments. If an HMS 
fishery interacts with billfish, then it needs to use circle hooks.
    Response: NMFS agrees that Atlantic billfish tournaments represent 
a subset of total fishing effort targeting Atlantic billfish and that 
there would be a greater conservation gain if circle hooks were 
required in all offshore recreational fisheries. NMFS is interested in 
all potential means of further reducing the post-release mortality of 
all HMS. However, NMFS prefers to collect and evaluate additional data 
regarding the impacts of circle hooks on non-billfish species and 
fisheries prior to mandating circle hooks for all HMS fisheries. Other 
possible methods of reducing post-release mortality of all HMS could 
include the required use of careful handling and release guidelines, 
release equipment, and training. NMFS may consider the feasibility of 
additional circle hook requirements and other requirements in the 
future, as suggested by the commenter. NMFS also agrees that uniform 
fishery-wide circle hook requirements will likely facilitate 
enforcement. However, NMFS believes that the requirement to use circle 
hooks by permitted HMS fishermen when natural bait and natural bait/
artificial lures are deployed in billfish tournaments can be adequately 
enforced by NMFS Office of Law Enforcement. NMFS further believes that, 
given the vested financial interests of billfish tournament 
participants in ensuring that all tournament participants compete under 
the same rules and conditions, tournament circle hook requirements will 
be significantly self-enforced. The Atlantic White Marlin ESA Listing 
Review Panel would take into consideration the impacts of all 
regulations in effect, including circle hook requirements, when making 
its recommendations. NMFS cannot predict the outcome of these 
deliberations or the direct impact that any particular regulation may 
have on the outcome of such deliberations. Data indicate that the 
domestic directed fishery for Atlantic white marlin is responsible for 
a significant proportion of total domestic white marlin mortality, and 
may, in some years, exceed the level of mortality inflicted by the 
domestic pelagic longline fleet. NMFS also agrees that the directed 
domestic fishery for Atlantic white marlin and the bycatch of this 
species in other domestic fisheries represents only a small portion of 
total Atlantic-wide mortality, on both an individual and a collective 
basis. NMFS also agrees that the recovery of this depleted fishery is 
dependant upon the cooperation of the international community. To this 
end, the U.S. continues to pursue marlin conservation at the 
international level through ICCAT.
    Comment 42: NMFS received conditional support for alternative E2, 
Effective January 1, 2007, limit all participants in Atlantic HMS 
recreational fisheries to using only non-offset circle hooks when using 
natural baits or natural bait/artificial lure combinations, including; 
I support the use of circle hooks with natural baits in all HMS 
fisheries, only if no J-hooks are allowed on board the vessel.
    Response: Public comment during the scoping phase of this 
rulemaking was nearly unanimous on the need to allow the use of J-hooks 
with artificial lures when fishing for Atlantic blue marlin given the 
feeding behaviors of this species. Additionally, in its analysis of 
circle hook requirements, NMFS found that the post-release mortality 
rate of Atlantic blue marlin caught recreationally on J-hooks appeared 
to be comparable to post-release mortality rates of Atlantic white 
marlin caught recreationally on circle hooks. As such, this rule, which 
requires the use of non-offset circle hooks by permitted HMS fishermen 
when natural bait or natural bait/artificial lures are deployed in

[[Page 58098]]

billfish tournaments, but allows J-hooks to be used with artificial 
lures, will likely reduce mortality in the directed billfish fishery 
and provide a significant and appropriate conservation benefit.
    Comment 43: NMFS received comments opposing Alternative E2, 
including: I do not support alternative E2; I am concerned about 
requiring circle hooks in all HMS fisheries because dolphin, wahoo, 
king mackerel, and inshore fisheries could be impacted; how would NMFS 
determine who is in the HMS fishery?; I strongly oppose requiring the 
use of circle hooks in all HMS fisheries because circle hooks do not 
work on swordfish and the catch rate goes down; and there may be a 
problem in terms of enforcement with making circle hooks mandatory in 
all HMS fisheries (alternative E2), but it could work in Atlantic 
billfish tournaments (preferred alternative E3).
    Response: NMFS acknowledges that requiring circle hooks in all HMS 
fisheries could affect secondary fisheries, including dolphin, wahoo, 
king mackerel, and other inshore fisheries. As previously acknowledged, 
NMFS prefers to collect additional data on the impacts of fishery-wide 
circle hook requirements. Such data collection would include HMS 
fisheries and may also include some non-HMS species and fisheries. The 
NED circle hook study indicated that deployment of circle hooks in the 
commercial pelagic longline fishery can result in a decrease in the 
number of swordfish caught under some oceanographic conditions. 
However, NMFS has only limited data on the impact of circle hooks in 
the recreational swordfish fishery. With regard to enforcement, NMFS 
believes that given the vested financial interests of billfish 
tournament participants in ensuring that all tournament participants 
compete under the same rules and conditions, tournament circle hook 
requirements will be significantly self-enforced.
    Comment 44: NMFS received comments on the adequacy of data and 
assumptions made in support of non-preferred alternative E2, which 
would require all HMS fishermen to use circle hooks when using natural 
bait and preferred alternative E3, which would require the use of non-
offset circle hooks in billfish tournaments when using natural bait, 
including: NMFS cannot justify alternatives E2 or alternative E3. We do 
not believe that there is data to support the preferred alternative to 
require circle hooks in tournaments; and, the assumptions made to 
support the use of circle hooks are not specified in the text and leads 
one to believe that there is another set of assumptions that would not 
support the use of circle hooks. Where the ``23 percent overall'' 
figure comes from is not discoverable in the text. It is one of those 
derived from assumptions that are not spelled out. The ``65.7 percent'' 
figure is right from the Horodysky and Graves study which, as argued, 
is insufficient to support any of the proposals.
    Response: The significant potential reductions in post-release 
mortality of recreationally caught Atlantic billfish that are 
anticipated to be achieved through the shift from J-hooks to non-offset 
circle hooks in the directed fishery provide ample support for 
implementing these measures. Reducing the post-release mortality of 
Atlantic white marlin by two-thirds would be a landmark achievement. 
The shift to circle hooks in the directed Atlantic billfish fishery is 
the most effective single management tool known to the Agency at this 
time to control post-release mortality, and has the added benefit of 
having minimal impacts on the fishery. NMFS has relied on publicly 
available peer-reviewed scientific papers and available recreational 
data sets in developing its analyses. The assumptions made to support 
the use of circle hooks are articulated in Chapter 4 of the Final 
Consolidated HMS FMP. The reference to 23 percent overall reduction 
represents another statistical perspective on the anticipated 
reduction. It represents the change in absolute terms of reducing the 
estimated post-release mortality of Atlantic white marlin from 35 
percent overall on J-hooks to approximately 12 percent overall on 
circle hooks (35 percent - 12 percent = 23 percent). The 65.7 percent 
figure represents the relative decrease in post-release mortality 
between J-hook and circle hook caught Atlantic white marlin (23 
percent/35 percent = 65.7 percent).
    Comment 45: NMFS received a number of comments opposing preferred 
alternative E3, which would require the use of non-offset circle hooks 
by HMS permitted fishermen participating in billfish tournaments when 
using natural baits, including: we support the voluntary use of circle 
hooks and oppose mandating use of circle hooks in tournaments when 
using natural baits; if NMFS lets the recreational and charter/headboat 
fleet implement circle hooks on a voluntary basis, there will be 90 
percent or better compliance at using circle hooks in a year or two; 
all south Florida tournaments have already voluntarily converted to 
circle hooks because they work, NMFS should ask tournament directors to 
add 5 extra points to anglers who used circle hooks to catch their 
fish; the number of fish saved will be ten times greater with the 
voluntary use of circle hooks rather than mandatory use, because the 
public does not like to be forced into doing things; individual 
tournaments should be allowed to determine which type of hook is most 
appropriate for their own needs; we agree with NMFS that promoting 
circle hook use in tournaments will result in non-tournament anglers 
using them also, however it should not be required by regulation. 
Anglers will ignore the circle hook requirement at tournaments and will 
choose the best tackle to win. The blue marlin fishery is a mixed 
fishery and circle hooks do not work well on other tournament species 
such as wahoo; enforcing circle hook requirements will be difficult or 
impossible, especially at tournaments; circle hooks need to be phased 
in through angler education, because they are not enforceable at this 
time with no proposed specifications; NMFS should educate anglers on 
the use and benefits of circle hooks. NMFS needs to provide 
specifications on circle hooks (offset, circularity, shank length, 
size, gap, etc.) before requiring them; I do not want NMFS to advocate 
one hook manufacturer over another; NMFS needs written specifications 
that are clear to everyone in order to encourage compliance; circle 
hooks could potentially have huge negative economic impacts on 
tournaments. They may decrease anglers' ability to catch non-billfish 
species that are landed for food or tournament winnings and as such may 
decrease willingness to participate in tournaments. This commenter also 
noted that the transition to circle hooks may require anglers to invest 
between $15,000 and $20,000 in the way they fish tournaments; potential 
adverse economic impacts of implementing circle hooks may outweigh the 
conservation benefits derived from anticipated decreases in post-
release mortality and as such other areas of conservation should be 
explored; anglers need to use J-hooks with artificial lures because of 
the way marlin feed; circle hooks do not work well for species that are 
trolled for at higher speeds; fish do not get gut hooked with J-hooks 
and artificial bait. Anglers need natural bait with circle hooks 
because the use of circle hooks for marlin fishing with lures will not 
work. Marlins smack the live bait with circle hooks and will get hooked 
in the mouth or bill so there is very little chance of gut hooking 
anything; the best way to catch them (blue marlin) is to

[[Page 58099]]

slow troll natural bait with no drop back. Circle hooks may not work 
without a drop back; and, I oppose Alternative E3 because it falls 
short of what is needed.
    Response: NMFS disagrees that there will be significantly greater 
use of circle hooks by anglers in the Atlantic billfish fishery if 
circle hook use remains voluntary, as opposed to being required under 
certain circumstances. Circle hook use has always been voluntary, and 
yet significant portions of the fishery continue to use J-hooks. 
Further, NMFS has been actively encouraging the use of circle hooks in 
HMS Fisheries since 1999. NMFS advocated circle hook use through the 
placement of articles on circle hooks, held discussions with industry 
leaders to encourage their use and to educate anglers on their 
benefits, recommended their use during public hearings and elsewhere, 
and encouraged circle hook use in tournaments by providing monetary 
incentives to anglers for their use. While there has been some progress 
in sectors of the fishery, anecdotal evidence suggests that substantial 
portions of the fishery continue using J-hooks as the standard hook. 
For several reasons, NMFS has selected the alternative to require non-
offset circle hooks to be used by anglers aboard HMS permitted vessels 
participating in billfish tournaments when deploying natural baits. 
There are substantial conservation benefits associated with the use of 
circle hooks, primarily reduced post-hooking mortality. This is 
especially important because recent information suggests that the post-
release mortality rate of Atlantic white marlin caught recreationally 
on J-hooks is substantially higher than previous estimates. In 
addition, there are data indicating that the mortality contribution of 
the recreational community on Atlantic white marlin may equal or exceed 
that of the pelagic longline fishery in some years, and circle hook 
requirements are already in place for that fishery.
    As discussed in the response to Comment 41 regarding enforcement of 
circle hook use in tournaments, NMFS believes that given the vested 
financial interests of billfish tournament participants in ensuring 
that all tournament participants compete fairly under the same rules 
and conditions, tournament circle hook requirements would be 
significantly self-enforced. A general definition of ``circle hook'' is 
included in the current Federal regulations governing Atlantic HMS, and 
NMFS understands the desire of tournament operators for additional 
circle hook specifications. However, as there are no standard industry 
hook specifications, NMFS cannot provide detailed hook specifications 
for each size circle hook that could be used in the recreational 
billfish fishery at this time. NMFS is continuing to work on various 
definitions of circle hooks that could be applied in future 
rulemakings. Further, to ease concerns of anglers and simplify hook 
choice, NMFS is considering working with hook manufacturers to ensure 
that all hooks marketed as circle hooks are true circle hooks. NMFS 
disagrees that implementation of circle hook requirements will cause 
large adverse economic impacts. NMFS has not seen evidence that 
participation in the fishery will decrease as a result of circle hook 
use. Circle hooks have been shown to increase catch rates of some 
billfish and are, on average, slightly less expensive than J-hooks. 
Many commenters suggested that if circle hook use were left voluntary 
that compliance rates will be very high. NMFS agrees that circle hooks 
may affect the catches of some non-HMS species, but cannot predict 
whether these catches may increase or decrease. However, circle hooks 
will only be required on HMS permitted vessels participating in 
billfish tournaments when natural baits or natural bait/artificial lure 
combinations are deployed. Based on public comment during scoping and 
an examination of post-release mortality data of blue marlin caught on 
J-hooks, NMFS will allow anglers on HMS permitted vessels in billfish 
tournaments to continue to use J-hooks with artificial lures. NMFS 
remains convinced that implementing non-offset circle hook requirements 
in Atlantic billfish tournaments when natural baits or natural bait/
artificial lures are deployed from permitted HMS vessels will be an 
important and productive first step that should reduce mortality in the 
U.S. directed billfish fishery.
    Comment 46: I am concerned that alternative E3 specifies circle 
hooks for ``all Atlantic billfish tournament participants'' rather than 
``HMS-permitted vessels in all Atlantic billfish tournaments.''
    Response: NMFS agrees. NMFS has made a technical clarification to 
the wording of the alternative to correct any misperceptions. NMFS did 
not intend that the regulations contained in 50 CFR part 635 would 
apply to fisheries under the jurisdiction of the regional fishery 
management councils. NMFS analyzed this alternative from the 
perspective of applying circle hook requirements only to HMS-permitted 
vessels. To clarify, NMFS will require circle hook use only by anglers 
fishing from Atlantic HMS permitted vessels participating in Atlantic 
billfish tournaments when deploying natural bait or natural bait/
artificial lure combinations.
    Comment 47: NMFS received a number of comments in support of 
preferred alternative E3, Effective January 1, 2007, limit all Atlantic 
billfish tournament participants to using only non-offset circle hooks 
when using natural or natural bait/artificial lure combinations, 
including: I support alternative E3, which would require circle hooks 
in Atlantic billfish tournaments; the results of recent circle hook 
studies are very compelling; NMFS should make a tough decision and 
implement circle hooks because they work; circle hooks can help with 
catch and release by reducing post-release mortality; NMFS must reduce 
mortality on marlin and should require circle hooks; limiting 
tournaments to circle hooks should reduce post-release mortality and 
provide additional conservation to billfish in the recreational 
fishery. Mandatory use is viable in the tournament setting. Outside of 
tournaments, NMFS needs an aggressive education program to promote the 
use of circle hooks; it is easy to get a circle hook back, and circle 
hooks have the benefit of not leaving any gear on the fish; circle 
hooks work, save fish, and result in less hooking trauma; I support the 
use of circle hooks, but they may not work with combination baits; our 
club adopted the use of circle hooks exclusively for all our 
tournaments, and we generally have a short ten to 15 minute release 
time on sailfish and white marlin, which minimizes stress on the 
animal; we support alternative E3, non-offset circle hooks with dead or 
live natural baits in tournaments, but a circle hook needs to be 
clearly defined; circle hooks should be mandatory for billfish 
tournaments; I support the mandatory use of circle hooks in billfish 
tournaments because it is enforceable. Tournament directors can give 
out hooks or inspect them; Tournaments are a good place to start 
implementing circle hooks; there is an international movement to use 
circle hooks; the U.S. needs to put circle hook requirements on paper 
to show ICCAT our commitment and credibility, rather than doing this 
voluntarily; the international focus needs to be on improving the post-
release mortality of Atlantic billfish and requiring circle hooks in 
U.S. fisheries will help with this effort; and, the recreational sector 
claims they are not ready for circle hooks, but the commercial sector 
was forced to move to circle hooks.

[[Page 58100]]

Anything that can be done to reduce mortality is good. The commercial 
fishing sector has stepped up to the plate, so the recreational 
community should do the same.
    Response: NMFS agrees with comments suggesting that implementing 
circle hook requirements in tournaments will reduce post-release 
mortality of billfish caught in tournaments, and should help reduce the 
overall fishing mortality rate of Atlantic marlins. Recent data 
indicate that switching to circle hooks could reduce post-release 
mortality rates for individual fish by approximately two-thirds. NMFS 
also agrees with comments indicating the mandatory circle hook use in 
tournaments will be viable and enforceable for the reasons discussed in 
the response to Comment 41. NMFS also concurs with the need to continue 
educational efforts to better educate anglers in the use and benefits 
of circle hooks, as noted by some commenters, and encourages anglers to 
minimize fight times, release fish quickly, and to release fish in a 
manner that maximizes the probability of survival to further minimize 
billfish mortality. NMFS agrees with commenters who suggest that there 
is growing international momentum to use circle hooks in various 
fisheries. However, NMFS sees a need for continuing pressure on the 
international community to implement circle hook use more rapidly. As 
discussed in the response to Comment 46, a general definition of circle 
hooks is included in the current Federal regulations governing Atlantic 
HMS, and NMFS understands the desire of anglers and tournament 
operators for additional circle hook specifications. However, an index 
of detailed hook specifications for each size of circle hook that could 
be used in the recreational billfish fishery is not available at this 
time. NMFS is working on definitions of circle hooks that could be 
applied in future rulemakings. Further, to ease concerns of anglers and 
simplify hook choice, NMFS is considering working with hook 
manufacturers to ensure that all hooks marketed as circle hooks are 
true circle hooks. Implementing circle hook requirements in portions of 
the domestic recreational billfish fishery will demonstrate to the 
international community the conservation benefits of these hooks, and 
the commitment of the U.S. to billfish conservation. Improving post-
release mortality in both the commercial and recreational fisheries is 
a critical component of halting the current decline of Atlantic marlin 
populations. NMFS agrees that the commercial fishing sector is subject 
to a number of restrictions to reduce bycatch and bycatch mortality. 
However, with regard to the hook requirements analyzed in this 
rulemaking, NMFS believes that the data indicate that circle hooks can 
reduce post-release mortality in the recreational billfish fishery.
    Comment 48: NMFS received a number of comments conditionally 
supporting implementation of circle hooks in billfish fisheries, 
including: the use of circle hooks should be voluntary until NMFS 
develops a specification on the off-set and shank length; we support 
alternative E3, circle hooks in tournaments, provided it includes 
provisions to conduct cooperative scientifically valid research, 
determine and specify minimum design specifications for circle hooks, 
require the handling and release equipment be on board, and allow for 
voluntary participation in handling and release workshops. The current 
definition for a circle hook is not adequate. Rather, NMFS needs to 
outline minimal design specifications as was done in the NED 
experimental design; and, if voluntary conversion to circle hooks is 
low, then I would support their mandatory use.
    Response: As discussed fully in Chapter 4 of the Final Consolidated 
HMS FMP and in the response to Comment 45 above, NMFS believes it is 
appropriate to require circle hooks for HMS permitted vessels when 
participating in Atlantic billfish tournaments at this time, despite a 
lack of detailed circle hook specifications. NMFS is continuing to 
develop more detailed circle hook specifications, but believes that the 
conservation benefits derived from circle hook requirements at this 
time outweigh any possible adverse impacts that may result from a lack 
of detailed circle hook specifications. NMFS has not considered or 
proposed any restrictions on scientific research in the Final 
Consolidated HMS FMP. Interested parties may conduct scientific 
research as appropriate under the selected circle hook alternative. 
Should the design of such scientific research call for utilizing gears 
or undertaking activities prohibited by regulation, interested parties 
may apply for either an Exempted Fishing Permit or Scientific Research 
Permit, as appropriate. Requiring handling and release equipment and 
workshops for the recreational sector is beyond the scope of this 
rulemaking, but may be considered in a future rulemaking, if 
appropriate. NMFS has selected an alternative requiring mandatory shark 
identification workshops for federally permitted shark dealers, as well 
as mandatory protected resources identification and release and 
disentanglement workshops for longline and gillnet vessel owners and 
operators. However, to the extent possible, these workshops will be 
open to other interested parties, including recreational fishery 
participants. As previously discussed, NMFS is unable to determine what 
percentage of billfish trips deploy circle hooks. However, the Agency 
believes that the data clearly demonstrate significant conservation 
benefits can be derived from the use of circle hooks in portions of the 
recreational billfish fishery.
    Comment 49: NMFS received comments regarding the timing of 
implementing possible circle hook requirements suggesting the need for 
a short phase-in of circle hooks into tournaments and the recreational 
fishery and advance notice of impending circle hook regulations to 
allow for changes in the rules and advertising, and to inform 
tournament participants of potential circle hook requirements. 
Commenters also suggested that educational efforts should be increased 
to promote and enhance the growing recreational awareness, and use, of 
circle hooks.
    Response: NMFS surveyed a number of tournament operators in the 
Atlantic, Gulf of Mexico, and Caribbean to better understand various 
aspects of tournament operations. NMFS determined that a delayed date 
of effectiveness of between four and six months would likely provide 
adequate time for tournament operators and participants to adjust 
tournament rules, formats, and advertising, as necessary, as well as to 
notify anglers of changes, and allow anglers to adjust fishing 
practices and take other steps, as appropriate, to minimize any 
potential adverse impacts stemming from selected circle hook 
requirements. As such, given the publication of this Final Rule in 
September 2006, the effective date for the selected circle hook 
alternative is January 1, 2007. This effective date is consistent with 
the effective date proposed for preferred alternative E3 as contained 
in the Draft Consolidated HMS FMP. NMFS has also had a circle hook 
public education program in place for a number of years to educate 
anglers and encourage the use of circle hooks in recreational 
fisheries.
    Comment 50: Why would the recreational fishery not be allowed to 
have offset hooks, while the PLL fishery can have a 10 percent offset?
    Response: Pelagic longline circle hook and bait requirements were 
developed to specifically address bycatch and bycatch mortality of 
Atlantic sea turtles, while the selected circle hook

[[Page 58101]]

requirements for Atlantic HMS permitted fishermen participating in 
Atlantic billfish tournaments are intended to reduce post-release 
mortality of Atlantic billfish. In other words, they were developed to 
address different issues. The pelagic longline fishery may only possess 
circle hooks offset up to 10 degrees if they are 18/0 or larger in 
size. The offset was determined to be necessary to allow the use of 
large baits (e.g. whole Atlantic mackerel), which can shield the hook. 
The recreational billfish fishery typically uses significantly smaller 
hooks (sizes 8/0 and 9/0), which, if offset, may diminish the 
conservation benefit of circle hook requirements by resulting in higher 
rates of deep hooking and soft tissue damage to vital organs.
    Comment 51: NMFS received comments on the potential applicability 
of circle hook requirements of preferred alternative E3, which would 
require billfish tournament participants to use non-offset circle hooks 
when deploying natural baits, including: would participants in 
tournaments that offer prizes for both billfish and non-HMS species be 
required to use circle hooks for the non-HMS species; and would the 
circle hook requirement apply to vessels fishing in U.S. waters, or to 
all U.S. flagged vessels everywhere?
    Response: Anglers aboard HMS permitted vessels, or vessels that are 
required to be permitted, and are participating in Atlantic billfish 
tournaments will be required to use non-offset circle hooks when 
deploying natural baits and natural bait/artificial lure combinations. 
However, HMS permitted vessels participating in Atlantic billfish 
tournaments will be able to deploy J-hooks on artificial lures. Circle 
hooks will be required for U.S. flagged vessels possessing an HMS 
permit and participating in an Atlantic billfish tournament regardless 
of where that vessel is fishing.
    Comment 52: NMFS received a number of comments and suggestions on 
potential gear and bait restrictions or policy programs beyond those 
analyzed in the Draft Consolidated HMS FMP, including: there should be 
no live bait fishing; prohibit the use of ``live bait'' in all HMS J-
style hook fisheries and areas known to have billfish interactions; the 
use of kites and offset circle hooks may be more damaging than J-hooks; 
NMFS should allow only one hook per lure to reduce foul hooking and 
injuries to the fish and anglers; NMFS should implement minimum line 
test requirements during the season or in tournaments; NMFS should 
create a buyback program for J-hooks; and, it would be useful to 
convene a summit of HMS tournament directors to work on a protocol to 
get anglers to switch to circle hooks.
    Response: NMFS appreciates the thoughtful and creative suggestions 
made by commenters to address billfish issues. Although these ideas 
were not specifically considered in the Draft Consolidated HMS FMP, 
NMFS is investigating their potential and may consider them in a future 
rulemaking if appropriate.
    Comment 53: NMFS received a number of questions specific to 
tournament landings of billfish in South Carolina, including: how many 
billfish are caught annually in South Carolina tournaments? What is the 
number harvested for weigh-in versus the number released? What is the 
estimated mortality for those released? What is the financial gain to 
the state?
    Response: An examination of the Recreational Billfish Survey (RBS), 
which records tournament landings, indicates that an average of four 
Atlantic billfish (blue marlin, white marlin, and sailfish) were landed 
in South Carolina in tournaments annually for the period 1999 [dash] 
2004, inclusive. A high of seven blue marlin were landed in tournaments 
in South Carolina in 1999, and a low of one blue marlin was landed in 
2002. In total, for the period 1999 - 2004, 25 billfish were retained 
and 73 were released in tournaments, as reported through the RBS. 
According to RBS data, between seven and eight (7.6) tournaments per 
year were conducted in South Carolina. Rounding-up to an estimate of 
eight tournaments per year, and applying an average value of $1,375,481 
per tournament, the estimated impact of tournaments to coastal South 
Carolina equates to $11,003,848.
    The commenter also indirectly suggested that the alternatives 
selected to address billfish mortality would result in the cancellation 
of South Carolina's tournaments resulting in a estimated loss of $11 
million dollars to the state. NMFS does not agree with this suggestion. 
Circle hook requirements are not expected to result in decreased 
tournament participation, given the high catch and release rate 
practiced by billfish anglers, the fact that all U.S. Atlantic billfish 
tournament anglers will have to abide by the same circle hook 
requirements, the low number of marlins that are annually landed in 
South Carolina, and because marlin are available for landing. South 
Carolina tournaments are not likely to be affected by the 250 fish 
marlin landing limit either, primarily because all South Carolina 
tournaments occur prior to the date at which any potential estimated 
impacts are projected to occur (August 22), based upon the assumptions 
described in Chapter 4 of the Final Consolidated HMS FMP.
iv. Circle Hooks and/or Post-Release Mortality Data
    Comment 54: NMFS received several comments on the adequacy of some 
of the studies cited in development of the Draft Consolidated HMS FMP, 
including: the Horodysky and Graves study is flawed because it is based 
on a sample size of only 40 fish and because they landed the fish in 30 
- 40 minutes which is unreasonable. Most anglers will land their fish 
much more quickly in 5 - 10 minutes thus reducing stress on the fish 
and increasing survival rates; the Horodysky and Graves study concludes 
that there is a 35 percent greater likelihood that a white marlin will 
survive release if taken on a circle hook, rather than a J-hook. Other 
factors resulting in post-release mortality must come into play; e.g., 
no one would expect fish fought for 83 minutes ((DR02-04) or 46 minutes 
(VZ03-11)) to survive and it has nothing to do with the type of hook 
used. Yet, the study takes into consideration nothing but the type of 
hook used to conclude that hook type alone results in a lower mortality 
rate; one of the circle hook studies cited in the DEIS is problematic 
because it was conducted in the Pacific Ocean (Guatemala), the vessel's 
captains were required to use offset circle hooks rather than non-
offset circle hooks, the methods do not represent how fishermen fish, 
and the study does not contain a comparison of circle hooks versus J-
hooks.
    Response: NMFS appreciates the concerns expressed over the methods 
and/or validity of the studies cited in the Draft and Final 
Consolidated HMS FMP. Nevertheless, the studies cited in Final 
Consolidated HMS FMP have been peer-reviewed and constitute the best 
available science regarding the topics under discussion. NMFS would 
appreciate additional relevant peer-reviewed studies on these subjects 
if the commenter is aware of any such studies because the Agency is 
always searching for, and required to utilize, the best available 
scientific information for fishery management actions.
    Comment 55: NMFS received a number of comments that recommended 
research and data collections, or asked about the availability of 
certain data, including: we recommend research to determine the impacts 
of circle hooks on catch rates, not only of billfish, but other species 
such as dolphin, wahoo, and tuna; NMFS should conduct studies on the 
post-release mortality of sailfish

[[Page 58102]]

with circle versus J-hooks in the Atlantic Ocean. Do not rely on 
studies from the Pacific Ocean because the sailfish are different 
between the oceans; more data from pop-up satellite (PSAT) tags and 
angler experience is needed to provide a foundation for any major 
change in regulations pertaining to marlins; has there been any 
research on exhaustion mortality, e.g., fighting fish for different 
times on different gear (drop back, hook type, etc) and the resultant 
impacts on mortality?; we see big blue marlin occasionally and are 
wondering about post-release mortality and catch-and-release rates. 
Predation should be considered in estimating post-release mortality; 
NMFS should conduct additional studies to identify more effective ways 
for the pelagic longline fishery to reduce bycatch of marlin and 
sharks; NMFS should evaluate the impacts of using ``live bait'' and 
circle-style hooks as well as careful handling and release tools and 
procedures; and, NMFS should further investigate how the feeding and 
behavior of Atlantic blue marlin may affect catch rates with circle 
hooks.
    Response: NMFS appreciates these research recommendations as a way 
to help guide future research efforts and funds. The Agency is always 
looking for, and appreciative of, relevant research suggestions and 
additional data that can benefit the management of Atlantic HMS. The 
answers to many of the research suggestions could potentially benefit 
management. Some of the research suggestions contributed by commenters 
are currently under investigation by either NMFS or private sector 
entities. NMFS will consider these suggestions in the future, as 
appropriate.
    Comment 56: Off-set circle hooks show less mortality than non off-
set circle hooks.
    Response: NMFS is unaware of data showing off-set circle hooks 
result in a lower mortality rate than non-offset circle hooks. NMFS 
would appreciate receiving any such data that may support this 
contention, and will consider it in future rulemakings, as appropriate.
    Comment 57: The Agency has not published specifications for circle 
hooks and I am requesting clarification of the definition of ``non-
offset circle hooks'' by NMFS because, in part, each manufacturer 
creates its own definition for non-offset circle hooks.
    Response: A general definition of circle hooks is included in the 
current Federal regulations governing Atlantic HMS, and NMFS 
understands the desire of tournament operators for additional circle 
hook specifications. The current definition of ``circle hook'' in 50 
CFR 635.2 reads: ``A circle hook means a fishing hook originally 
designed and manufactured so that the point of the hook is turned 
perpendicularly back toward the shank to form a generally circular or 
oval shape.'' NMFS is working on definitions for circle hooks. At this 
time, however, detailed hook specifications for each size circle hook 
that could be used in the recreational billfish fishery are not 
available. There are no standard industry hook specifications. As 
detailed in the discussion of the selected circle hook alternative in 
Chapter 4 of the Final Consolidated HMS FMP, NMFS finds that it is 
appropriate at this time to require the use of non-offset circle hooks 
in portions of the recreational billfish fishery to reduce post-release 
mortalities in the recreational billfish fishery. Further, to ease 
concerns of anglers and simplify hook choice, NMFS is considering 
working with hook manufacturers to ensure that all hooks marketed as 
circle hooks are true circle hooks.
    Comment 58: The Maryland Department of Natural Resources submitted 
a comment indicating that they would be willing to work with NMFS to 
teach voluntary use of circle hooks, noting that anglers must learn how 
to fish these hooks and that education for the offshore fishermen is 
necessary.
    Response: NMFS appreciates the State of Maryland's willingness to 
work with the Agency to reach out to anglers and educate them on the 
use of circle hooks. Circle hooks have been shown to effectively reduce 
post-release mortality of many species while having little impact on 
rates of catch. The Agency hopes that the offer by the State of 
Maryland will remain open given the mandatory circle hook requirements 
for tournaments in this rule.
    Comment 59: NMFS's statement in the Draft Consolidated HMS FMP that 
increases in recreational fishing effort and stable fishing mortality 
indicate that white marlin are decreasing in number is incorrect. 
Fishing mortality has not increased, the recreational fishing community 
is releasing more of them.
    Response: NMFS was unable to locate this statement in the Draft 
Consolidated HMS FMP. However, NMFS believes that the commenter may 
have intended to state that increases in recreational fishing effort 
and stable landings of white marlin indicate that white marlin may be 
decreasing in number. The number of recreationally landed Atlantic 
white marlin reported to ICCAT between 2001 and 2004 varied 
considerably, ranging from a high of 191 in 2002 to a low of 23 in 
2003. The number of Atlantic white marlin reported to NMFS via the 
Recreational Billfish Survey has remained relatively stable over the 
same period. However, the release rate of live Atlantic white marlin in 
the recreational fishery has also remained stable. In the face of 
increased effort, a lack of increases in landings, when coupled with 
stable release rates, implies decreased angler success. Decreased 
angler success could be attributable to a number of factors. One factor 
could be that the fishing mortality rate of Atlantic white marlin is 
more than eight times higher than the population can sustain, so the 
stock size is diminished. Furthermore, as discussed in Chapter 4 of the 
Final Consolidated HMS FMP, the current estimate of recreationally 
caught Atlantic white marlin post-release mortality is now 
significantly higher than previous estimates, so an increase in the 
number of releases would be anticipated to result in additional 
mortalities.
    Comment 60: Six to ten thousand white marlin are caught each year 
by U.S. fishermen, both commercial and recreational. I have data 
showing that commercial mortality is higher than recreational mortality 
in general, but in the past 6 years, the recreational mortality has 
exceeded the commercial mortality.
    Response: New post-release mortality estimates allowed NMFS to 
examine total mortality contributions of the commercial and 
recreational sectors for Atlantic white marlin over the past four 
years. Mortality varies greatly by year and data set. In some years, 
using some data sets, the recreational mortality contribution appears 
to exceed the commercial mortality contribution and in some years the 
reverse appears to be true. Please see Appendix C in the Final 
Consolidated HMS FMP for more detailed information by year and fishery 
sector. Appendix C provides a range of mortality estimates, but does 
not attempt to definitively identify mortality contributions, rather, 
the estimates provided in that table are intended to provide reference 
points for discussion. NMFS will continue to examine this issue as new 
and refined data become available.
v. Elimination of the ``No Sale'' Exemption
    Comment 61: The ``no sale'' exemption for Atlantic billfish should 
be removed. The sale of all billfish in the U.S. should be prohibited.
    Response: NMFS agrees that the exemption to the no sale provision 
for Atlantic billfish should be removed.

[[Page 58103]]

However, NMFS does not agree that the sale of all billfish, including 
those from Pacific stocks, should be prohibited. Stock status of 
Pacific billfish is currently unknown, and as such a nation-wide ban on 
the sale of billfish may not be appropriate. The Certificate of 
Eligibility program in place for Atlantic billfish is designed to 
ensure that no Atlantic billfish enter the stream of commerce, while 
allowing Pacific billfish to be sold legally. However, the Agency may 
reconsider a prohibition on the sale of Pacific billfish in the future, 
as necessary and appropriate.
    Comment 62: The potential ecological impact of billfish sales from 
fishermen in Puerto Rico would be minimal because the individuals who 
may sell Atlantic billfish take only 10 [dash] 15 fish a year, and only 
keep fish that come to the boat dead in an effort to minimize waste.
    Response: NMFS has little data on the extent of illegal sales of 
billfish in Puerto Rico and cannot verify the veracity of the 
commenter's claims or assess the impact of these sales. NMFS has 
received a significant number of anecdotal reports of sales of Atlantic 
marlin in Puerto Rico. The number of these anecdotal reports suggests 
that a sizable number of Atlantic marlin may be illegally sold and 
implies that more fish than just those that come to the boat dead are 
illegally entered into commerce.
    Comment 63: The sale of billfish is legal outside of the U.S. Do 
foreign vessels fishing in waters of the U.S. need to obtain U.S. 
fishing permits and abide by U.S. regulations?
    Response: Foreign commercial vessels are not allowed to fish in 
waters of the U.S. unless there is an international fishery agreement 
or some other specific authorization under the Magnuson-Stevens Act for 
such activity. Such vessels would be subject to permit requirements and 
other statutory and regulatory provisions. Foreign fishing vessels 
which are not operated for profit may engage in recreational fishing in 
U.S. federal and state waters. However, the vessels must obtain the 
requisite permits (e.g., HMS Angling permit and/or any state permits) 
and comply with all applicable federal and/or state laws. Since the 
1988 Atlantic Billfish FMP, the U.S. has prohibited commercial 
retention of billfish.
    Comment 64: How many comments were received from Puerto Rico on the 
proposed removal of the no sale exemption for billfish?
    Response: No comments from Puerto Rico directly addressed removal 
of the no sale provision. However, one commenter from Puerto Rico 
requested increased law enforcement at establishments that may 
illegally sell Atlantic billfish, such as restaurants. NMFS interprets 
this comment to be supportive of prohibiting sale of Atlantic marlin. 
Further, the Caribbean Fishery Management Council adopted a motion 
supporting elimination of the exemption to the no-sale provision in 
August of 2005.
vi. General Billfish Comments
    Comment 65: The proposed Atlantic billfish alternatives are in 
direct conflict with the 1988 Billfish FMP and the 1999 Billfish FMP 
Amendment's stated objective of ``Maintaining the highest availability 
of billfishes to the United States recreational fishery by implementing 
conservation measures that will reduce fishing mortality.''
    Response: NMFS disagrees. The Atlantic billfish provisions in this 
rule are consistent with the stated objective of maintaining the 
highest availability of billfishes to the U.S. recreational fishery by 
implementing conservation measures that will reduce fishing mortality. 
Recent studies by Cramer (2005) and Kerstetter (2005-in press) and 
analyses in the Final Consolidated HMS FMP indicate that recreational 
fishing activities contribute significantly to Atlantic billfish 
mortality. Because biomass levels of both Atlantic blue and white 
marlin are currently low, it is imperative for NMFS to implement 
conservation measures for the domestic recreational Atlantic billfish 
fishery to reduce post-release mortality and better ensure the highest, 
long-term availability of these important species to the United States 
recreational fishery. The selected management measures, specifically 
the requirement to utilize non-offset circle hooks when deploying 
natural bait in billfish tournaments, is an important step towards 
accomplishing this objective.
    Comment 66: NMFS must determine the sustainable biomass for 
spearfish and sailfish independently, as soon as possible.
    Response: NMFS does not conduct its own assessments for spearfish 
and sailfish. Due to the highly migratory nature of these species, 
stock assessments are conducted by the Standing Committee on Research 
and Statistics (SCRS) of ICCAT. The last assessment for sailfish was 
conducted in 2001. In that assessment, the SCRS expressed concern about 
the incomplete reporting of catches, lack of sufficient reports by 
species, and evaluations of new methods used to split the sailfish and 
spearfish catch and to index abundance. The SCRS recommended that all 
countries landing sailfish/spearfish, or having dead discards, report 
these data to the ICCAT Secretariat. The SCRS also indicated that it 
should consider the possibility of a spearfish ``only'' stock 
assessment in the future.
    Comment 67: I support decreasing the mortality on Atlantic billfish 
as much as possible, the focus of billfish management has to be on 
post-release mortality.
    Response: This rule, which will require the use of non-offset 
circle hooks with natural bait in billfish tournaments by HMS permitted 
vessels, is intended to reduce the post release mortality of Atlantic 
billfishes. A recent study by Horodoysky and Graves (2005) has shown 
that circle hooks can reduce post-release mortality on white marlin by 
as much as 65 percent, when compared to J-hooks.
    Comment 68: Billfish conservation is an international problem, and 
the focus has to be international.
    Response: NMFS agrees that billfish conservation is an issue that 
must be addressed at the international level. Nevertheless, given the 
low biomass levels of Atlantic blue and white marlin, and the 
importance of these species to the domestic recreational fishery, it is 
necessary to implement measures to reduce post-release mortality to the 
extent practicable in the domestic recreational Atlantic billfish 
fishery. The U.S. will continue to vigorously pursue international 
agreements at ICCAT to reduce billfish mortality levels caused by 
foreign fishing vessels.
    Comment 69: NMFS should designate all marlin, spearfish, sailfish, 
and sharks as catch-and-release species, and allow fishing for these 
species only with rod and reel and circle hooks.
    Response: In the Draft Consolidated HMS FMP, NMFS proposed a 
prohibition on landings of Atlantic white marlin. Although there was 
some support for this measure, many commenters indicated that a white 
marlin landings prohibition was unnecessary, and that it would produce 
significant adverse social and economic impacts. After much 
consideration, NMFS has decided not to select this alternative at this 
time. Many HMS recreational anglers already practice catch and release 
fishing for white marlin and other species. Furthermore, the commercial 
sale of Atlantic billfish is prohibited, landings of longbill spearfish 
are prohibited, and several shark species may not be landed. Strict 
quotas and other management measures based upon the best available 
scientific information govern commercial landings of most other shark 
species, while the recreational sector is required

[[Page 58104]]

to adhere to shark bag limits and minimum size restrictions. As a 
result, mandatory catch and release in the recreational sector may not 
be necessary at this time and prohibiting all commercial shark landings 
is not necessary. Domestically, the most important factor in conserving 
billfish is to improve their survival after the catch and release 
experience. This rule requires HMS permitted fishermen to use non-
offset circle hooks when deploying natural baits in billfish 
tournaments. This measure will complement existing circle hook 
requirements in the commercial PLL fishery by reducing post-release 
mortality and contributing to the rebuilding of Atlantic billfish 
stocks.
    Comment 70: The economic effects associated with the proposed 
billfish measures go far beyond the initial impacts that were analyzed 
in the Draft Consolidated HMS FMP.
    Response: Economic impacts are a fundamental consideration in the 
Agency's decision making process. Oftentimes, however, the data are not 
sufficient to predict, for example, how recreational anglers might 
react to proposed management measures. If the measures change, would 
anglers switch to other species, quit fishing altogether, take fewer 
trips, or travel shorter distances? Each of these potential behavioral 
reactions would impart different economic impacts. One of the primary 
reasons for conducting public hearings and soliciting public comment is 
to obtain supplemental information on the analyzed impacts associated 
with proposed management measures. All written comments, as well as 
those received verbally at public hearings, were considered by the 
Agency in the selection of final management alternatives. NMFS will 
continue working to improve available social and economic data and 
analyses.
    Comment 71: NMFS should require a Billfish Certificate of 
Eligibility to help improve compliance, facilitate enforcement and 
improve information on billfish shipments coming into the U.S.
    Response: A Certificate of Eligibility for Billfishes is required 
under 50 CFR 635.31(b)(2)(ii), and must accompany all billfish, except 
for a billfish landed in a Pacific state and remaining in the state of 
landing. This documentation certifies that the accompanying billfish 
was not harvested from the Atlantic Ocean management unit, and 
identifies the vessel landing the billfish, the vessel's homeport, the 
port of offloading, and the date of offloading. The certificate must 
accompany the billfish to any dealer or processor that subsequently 
receives or processes the billfish. The certificate of eligibility 
helps to maintain the recreational nature of Atlantic billfish fishery, 
with no commercial trade.
    Comment 72: NMFS received a number of comments from recreational 
fishery participants regarding pelagic longline fishing, its impact on 
billfish, and suggestions for new management measures that should be 
researched or implemented. The comments included: new data show that 
just under 65 percent of all white marlin caught as bycatch on pelagic 
longline vessels are dead, or die soon after being released alive; it 
makes absolutely no sense to close recreation fishing which kills less 
than 1 percent of the fish caught and allow commercial fishing which 
kills almost 100 percent of the billfish caught. The major source of 
billfish mortality (pelagic longlining) still has not been 
satisfactorily regulated to adequately protect these fish; the 
commercial pelagic longline fishery is causing the decline in billfish 
abundance; billfish were making a comeback until longline fishing of 
their prey species, dolphin and wahoo, was allowed. Our club used to 
tag and release 35 to 40 marlin per year. Now we see only five to six 
marlin tags and most of them are from the other side of the Gulf 
Stream; NMFS should limit the length of pelagic longlines; and, limit 
the number of hooks that pelagic longline fishermen are allowed to set, 
and require that pelagic longline vessels retrieve their gear every 
three hours to reduce billfish mortality.
    Response: Many commenters stated that the recreational HMS fishery 
has only a minor impact on billfish populations relative to the 
commercial PLL fleet, and that additional management measures should be 
imposed upon the commercial PLL fleet rather than upon the recreational 
sector. To address this comment, NMFS examined data from the pelagic 
longline logbook program and the RBS, MRFSS, and LPS databases. New 
information on recreational and commercial post-release mortality rates 
(Horodysky, 2005, and Kerstetter, 2006, respectively), when combined 
with these databases, indicates that in some years, the total mortality 
contribution of the domestic recreational billfish fishery may equal or 
exceed the total mortality contribution of the domestic pelagic 
longline fleet for Atlantic white marlin. As described in Appendix C of 
the Final Consolidated HMS FMP, estimates of total annual recreational 
white marlin mortality (which combines landings, dead discarded fish, 
and estimated post-release mortalities) vary greatly by data set and 
year. MRFSS and LPS databases indicate that, for the period 2001 [dash] 
2004, inclusive, the aggregate level of recreational mortality was 
approximately three times and two times higher, respectively, than 
aggregate mortality contributions (dead discards and estimated post-
release mortality) of the domestic pelagic longline fleet. Using RBS 
data, a known subset of recreational effort, estimated aggregate 
domestic recreational mortality appears to be about 71 percent of 
estimated total domestic pelagic longline mortality for the same period 
with regard to white marlin. When taken in combination, and in 
consideration of the limitations and uncertainties associated with each 
data base involved, two general conclusions can be drawn: (1) The 
aggregate domestic recreational fishing mortality contribution is 
higher than previously thought with regard to Atlantic white marlin; 
and (2) there is more parity between the mortality contributions of the 
domestic recreational and domestic pelagic longline fleets than 
previously thought. Cramer (2005) and Kerstetter (2006) also examined 
this same issue to varying degrees. Both papers support the same basic 
conclusion drawn in this Final Consolidated HMS FMP, that in some 
years, the domestic recreational billfish fishery may cause equivalent, 
or even greater, levels of mortality on Atlantic white marlin 
populations than the domestic pelagic longline fishery. This finding, 
which is contrary to widely held beliefs, appears to be the result of 
new data indicating higher post-release estimates for recreationally 
released white marlin and size differences between the two fisheries. 
Presently, the domestic commercial PLL fleet is regulated by a limited 
access permit program; observers; vessel upgrading restrictions; year-
round and seasonal closed areas; ICCAT-recommended quotas; minimum size 
restrictions; circle hook requirements; bait restrictions; careful 
release protocols; mandatory logbooks; and a VMS requirement, among 
others. The recreational HMS sector is governed by an open access 
permit program; minimum size restrictions; reporting requirements for 
swordfish, BFT, and billfish; gear restrictions; a no-sale provision; 
and possession limits for swordfish, sharks and tunas, among others. 
The selected billfish management measures are intended to reduce 
recreational post-release mortality of white marlin, because current 
estimates are substantially higher than previously thought. NMFS will 
continue to evaluate the need for

[[Page 58105]]

additional management measures for both the domestic PLL fleet and the 
recreational HMS fishery. NMFS also recognizes that foreign commercial 
longline vessels contribute significantly to Atlantic billfish 
mortality, and will continue to pursue international agreements at 
ICCAT to reduce these levels.
    Comment 73: NMFS would be negligent not to require mandatory 
tournament registration at this time; tournament registration should 
include all contests in which any prize, award and/or monetary exchange 
is made relating to the capture of Atlantic HMS; I support alternative 
E9, which would implement a mandatory HMS tournament permit, because 
monitoring and enforcement of HMS tournaments is necessary; HMS 
tournaments need to be permitted because we need reporting from them.
    Response: NMFS currently requires that all tournament operators 
register any tournament awarding points or prizes for HMS with the HMS 
Management Division, at least four weeks prior to the commencement of 
the tournament. The regulations are being clarified to add that 
tournament registration is not considered complete unless the operator 
receives a confirmation number from NMFS. This clarification is 
expected to improve the HMS tournament registration process. In the 
Draft Consolidated HMS FMP an alternative to require a tournament 
permit was considered, but not further analyzed, because improvements 
to tournament registration, data collection, and enforceability can be 
achieved with less burden to the public and government by requiring a 
tournament confirmation number. Because HMS tournaments frequently 
change operators, names, and dates, a tournament permit would be 
burdensome to administer and enforce. NMFS believes that requiring a 
tournament confirmation number, issued by the HMS Management Division, 
will accomplish the same objective (i.e., increased compliance) as a 
tournament permit would.

Management Program Structure

A. BFT Quota Management
    Comment 1: NMFS received a number of comments on the management of 
the purse seine sector of the Atlantic BFT fishery. These comments 
consisted of: BFT fisheries need every opportunity to harvest the quota 
and not addressing the large medium tolerance limits imposed on the 
purse seine sector in this rule is disappointing; the Purse Seine 
category should be allowed to fish throughout the year provided quota 
is available; and the purse seine BFT fishery needs to become a 
``true'' individual transferable quota (ITQ) fishery and thereby not 
addressing the ability to transfer purse seine quota outside the 
category is disappointing. Some comments stated that the Purse Seine 
category should be eliminated from the BFT fishery or purse seine 
vessels should be limited in the areas they fish to minimize any 
potential gear conflicts with commercial and recreational handgear 
vessels.
    Response: During this rulemaking, NMFS received many comments 
regarding management issues in the BFT fishery in general and the purse 
seine sector in particular. Many of these comments arise from recent 
issues regarding the status of BFT, underharvests in recent years, and 
current size and trip limits. ICCAT is conducting a stock assessment 
this summer that should provide additional information regarding the 
status of BFT and the current rebuilding plan. In November 2006, ICCAT 
may recommend new management measures for BFT. In addition to any 
future ICCAT recommendations for BFT, NMFS intends to conduct a 
rulemaking regarding all HMS permits that could include, among other 
things, further rationalizing some segments of the HMS fisheries, 
streamlining or simplifying the permitting process, restructuring the 
permit process (gear-based, species-based, or both), reopening some 
segments of the limited access system to allow for the issuance of 
additional permits, modifying when permits are renewed (fishing year or 
birth month), and considering dedicated access privileges (e.g., 
individual transferable permits). This future rulemaking may be better 
suited to address the entire range of purse seine comments that were 
received during this rulemaking.
    Comment 2: NMFS received a few comments regarding PLL in general 
and the incidental catch of BFT by PLL including: the effectiveness of 
the June PLL closure should be reevaluated in light of circle hook 
catch data; the PLL fishery should be afforded a greater opportunity to 
catch its targeted species of swordfish, allowable tunas, and sharks, 
especially considering the existing protections for BFT in the GOM and 
Florida East Coast, as well as 100 percent circle hooks, careful 
handling and release tools, and certified training; NMFS should take 
incremental steps to ensure that the Incidental Longline category fully 
utilizes its domestic BFT allocation in order to reduce dead regulatory 
discards to the maximum extent feasible within this category's 
allocation; due to the overall underharvest of U.S. Atlantic BFT quota, 
NMFS should cautiously relax the incidental catch criteria to reduce/
eliminate regulatory discards and effectively utilize this category's 
quota.
    Response: NMFS thoroughly analyzed the incidental catch 
requirements of BFT by PLL vessels and published a final rule on May 
30, 2003 (68 FR 32414), that substantially revised the management 
scheme for this incidental bycatch of BFT. NMFS continues to gather 
information regarding the effectiveness of incidental harvest 
restrictions, as well as the effectiveness of all bycatch reduction 
measures that have been implemented in the PLL fishery. In addition, as 
more information becomes available, NMFS will reevaluate which 
measures, if any, it may be appropriate to add, modify, reduce, and/or 
remove all together.
    Comment 3: NMFS received two comments regarding rebuilding of the 
Western Atlantic BFT stock. These comments consisted of: Agency efforts 
should be more focused on the international BFT issues to be effective 
in rebuilding the stock; and, BFT stocks should be rebuilt by 
preventing the commercial interests from overfishing.
    Response: NMFS agrees that international cooperation is critical to 
rebuilding the BFT stocks. The U.S. has been at the forefront of 
efforts to develop appropriate rebuilding plans that balance biological 
and socio-economic imperatives and will continue to press the 
international community to implement appropriate measures to rebuild 
Atlantic BFT stocks. ICCAT recommended the current U.S. BFT TAC based 
on the 1998 stock assessment for the Western Atlantic BFT stock and the 
rebuilding plan with the goal of achieving maximum sustainable yield 
within 20 years. Under the current rebuilding plan, the United States 
needs to maintain its allocation to prevent overfishing and contribute 
to rebuilding the stock. The U.S. quota is allocated to the commercial 
or recreational sector in accordance with the international rebuilding 
plan. In the past few years, all the commercial BFT categories have 
landed fewer fish than their allocations would allow for. Further, ATCA 
requires that no regulation promulgated under ATCA may have the effect 
of increasing or decreasing any allocation or quota of fish or fishing 
mortality level to which the U.S. agreed pursuant to a recommendation 
of ICCAT.
    Comment 4: Are herring issues addressed in this document in terms 
of the impacts they are having on BFT?
    Response: Atlantic herring, a food source for BFT, are currently 
managed under a separate fishery management

[[Page 58106]]

plan by the New England Fishery Management Council (NEFMC). The 
Atlantic herring fishery management plan is being amended. During a 
NEFMC meeting on January 31, 2006, the NEFMC approved a seasonal purse 
seine/fixed-gear-only fishery for the Western Gulf of Maine (Area 1A) 
from June 1 through September 31. The NEFMC's action recognizes the 
importance of herring in the Gulf of Maine ecosystem. In addition, NMFS 
recognizes the importance of considering ecosystem interactions in 
fishery management planning, and addresses ecosystem management as one 
of the goals of the NMFS Strategic Plan. The Agency continues to work 
toward integrating an ecosystem approach into fishery management 
practices.
    Comment 5: Yellowfin tuna should not take a ``back seat'' to BFT, 
and NMFS needs to put more resources into yellowfin tuna data 
collection, analyses, and regulation.
    Response: NMFS acknowledges the importance of yellowfin tuna to the 
U.S. fishing industry. The latest SCRS report indicates that the 
current fishing mortality rate for yellowfin tuna may be higher than 
that which will support maximum sustainable yield on a continuing 
basis. NMFS has taken a number of actions during, and since, the 
implementation of the 1999 FMP to address the management of YFT 
fisheries (e.g., imposing limited access on the longline and purse 
seine sectors of the fleet and implementing a recreational retention 
limit). By taking precautionary initiatives for conservation measures, 
the U.S. will have a stronger negotiating position at ICCAT if 
additional management measures become necessary. NMFS currently has 
reporting programs in place to collect commercial and recreational YFT 
data. This information, in turn, is provided to ICCAT and the SCRS to 
be compiled with other information from member nations to be used in 
assessing the YFT stock. Therefore, NMFS maintains that no further 
action regarding the YFT fisheries is necessary at this time. However, 
NMFS will continue to monitor the status of the YFT fisheries as SCRS 
has indicated that the yellowfin tuna stock is fully-exploited and will 
pursue future actions if warranted.
    Comment 6: Does NMFS have the authority to close an area or region 
to BFT fishing via an inseason action?
    Response: NMFS has the regulatory authority to provide for maximum 
utilization of the BFT quota by conducting various types of inseason 
actions. The inseason actions may consist of: increasing or decreasing 
the General category daily retention limits; adding or waiving 
Restricted Fishing Days (RFDs); increasing or decreasing the 
recreational retention limit for any size-class BFT or change a vessel 
trip limit to an angler limit and vice versa; transferring quota to/
from any fishing category or to the Reserve; closing domestic quota 
categories when that quota is reached, or is projected to be reached; 
and, closing/reopening the Angling category BFT fishery by accounting 
for variations in seasonal distribution, abundance, or migration 
patterns of BFT, or catch rates in one area, which may have precluded 
anglers in another area from a reasonable opportunity to harvest a 
portion of the Angling category quota. The Angling category BFT fishery 
or part of the fishery may be reopened at a later date if it is 
determined that BFT migrated into the other area. NMFS must consider 
specific criteria prior to taking each type of inseason action. 
Currently, NMFS has multiple sets of criteria, each one designed for a 
specific type of inseason action, that are used in making a 
determination. However, in this rule, NMFS is consolidating those lists 
to make the inseason action determination process more transparent and 
consistent.
    The end results of some inseason actions may be perceived as a 
closure of a certain geographic area. For instance, if NMFS were to 
implement a number of consecutive RFDs in the General category it will 
suspend fishing activities for that time period. NMFS also has the 
ability to implement an interim closure in the Angling category as 
described above in this response. An area closure for any other BFT 
category or a multi-year area closure for any BFT category will require 
a regulatory amendment, including public comment.
    Comment 7: The SAFMC supports alternative F3(c), which would 
provide an opportunity for a winter BFT fishery. Further, the Council 
supported an equitable BFT quota allocation for the South Atlantic 
region (North Carolina southward), as well as any other actions that 
will ensure fishermen in all the South Atlantic states (North Carolina, 
South Carolina, Georgia, and Florida's East coast) have an opportunity 
to participate in this fishery. The SAMFC is concerned about the 
proposed January 1 starting date for BFT fishing because it will 
prevent underages from being carried over into the following January of 
the new fishing year. The ability to carry these underages forward can 
keep the fishery open through the month of January, which is critical 
to the fisheries south of North Carolina, off South Carolina, Georgia, 
and Florida.
    Response: Currently, the last General category time-period spans 
the winter BFT fishery which usually begins in November and runs 
through the end of the General category season (at the latest on 
January 31). Under this rule, the current time-period of October 
through January and the associated subquota will be adjusted so that 
the later portion of the fishery will consist of three separate time-
periods; October through November, December, and January. With the 
implementation of the calendar year/fishing year changes in this rule, 
the December and January time-periods will fall in separate fishing 
years. Fisheries were not active across fishing years prior to the 1999 
FMP, which originally adjusted the BFT fishery from a calendar year to 
a fishing year spanning two calendar years. Under this rule, the annual 
baseline quota for the January time-period will be 5.3 percent of the 
coastwide General category quota. As indicated in Section 4.3.1.1 of 
the Final Consolidated HMS FMP, several options may be used to dispose 
of carryover of any under or overharvest during the December time-
period. In the first alternative, any under or overharvest could be 
entirely rolled over into January of the following fishing year and 
added to the baseline 5.3 percent allocation. Under this scenario, the 
entire underharvest would be added to the January time-period subquota, 
or the entire overharvest would be subtracted from the time-period 
subquota. In another potential alternative, 5.3 percent of the under or 
overharvest may be applied to the January time-period in addition to 
the baseline 5.3 percent allocation. In a third alternative, no under 
or overharvest would be added or subtracted from the January time-
period subquota. NMFS will work with the affected constituents through 
the annual BFT specification process to determine the most appropriate 
approach based on constituent needs and Federal regulatory 
requirements.
    Comment 8: The allocations between domestic quota categories should 
be adjusted, specifically increasing the quota for the Angling 
category.
    Response: The Agency did not consider a modification to the sector 
allocations in this action; therefore, a separate rulemaking and FMP 
amendment would be needed to increase the allocation to the Angling 
category. The original allocations reflect the sector's historical 
share of the landings during the 1983 through 1991 time period, and 
were codified as part of the 1999 FMP process.

[[Page 58107]]

    Comment 9: NMFS received numerous comments for and against the 
adjustment of the General category time-periods and associated 
subquotas. Those comments in support of an adjustment include: 
September through December have been the strongest months for BFT 
fishing and these allocations should be increased; General category 
time-period subquota allocations should allow for a dependable winter 
BFT fishery according to the percentages in the North Carolina 
Department of Marine Fisheries (NCDMF) Petition for Rulemaking; General 
category time-period and subquota allocations should reflect the 
migration of the fish through a particular area; there needs to be a 
balance between flexibility and predictability; the General category 
should be split across 12 months of equal portions and any arbitrary 
closure date should be removed to allow full harvest of the quota; is 
there a biological reason we do not allow the General category BFT 
fishery to be prosecuted in the months of February through May; all 
selected alternatives should allow for the full utilization of the 
available quota so the U.S. can prove we have a stake in these 
fisheries. Vessels need to be able to catch fish and then make money 
off those fish to reinvest into the fishery in the following years as 
this is a sign of a healthy fishery; catching wild BFT throughout the 
year is in the best interests of U.S. fishermen and the U.S. should 
remove any arbitrary controls (e.g., seasonal closures) to allow for 
the harvest of U.S. quota; and, regardless of which alternative is 
selected, when the fishery converts back to the calendar year, a 
methodology needs to be developed to allow quota to carry forward from 
December into January, i.e., across years, in a timely fashion. In 
addition, there was broad support at the March 2005 AP meeting for 
revising the General category time-periods and subquotas to allow for a 
winter fishery, due to the slight increase in quota as well as on 
informal agreements between user groups and the Agency.
    Comments in opposition of an adjustment include: the Agency needs 
to manage the BFT fishery in the traditional manner; and changing the 
General category time-periods and subquotas will have negative impacts 
on the traditional New England fishermen.
    Response: This rule to amend the coastwide General category time-
periods and their associated subquota allocations will strike a balance 
between formalizing a winter fishery, acknowledging recent trends in 
the BFT fishery, as well as recognizing the traditional patterns of the 
fishery. This rule will also allow for business planning throughout the 
entire General category season. In light of recent underharvests in the 
General category, NMFS is aware of the need to provide reasonable 
opportunities to harvest the General category quota, and how this 
relates to requests to extend the fishery throughout the year. However, 
as catch rates in the BFT fishery can increase quite dramatically in a 
short time period, there are concerns in allowing a fishery to emerge 
that may be unsustainable or cause overcapitalization on a species that 
is currently designated as overfished.
    Comment 10: NMFS received comments both in favor of and opposed to 
the preferred alternative to establish General category time-periods, 
subquotas, and geographic set-asides via annual framework actions. The 
comment in favor stated the preferred alternative allows for a balance 
between flexibility and predictability in the General category BFT 
fishery. The comment opposed stated the overall BFT management program 
should not be modified.
    Response: Annual regulatory framework actions will be used to 
establish and adjust the General category time-periods, subquotas, and 
geographic set-asides. This procedural change to the management of this 
category will expedite the process, providing the agency with greater 
flexibility to adapt to changes in the fishery and the industry with 
greater predictability in the management of the General category's 
upcoming fishing year. The General category will have consistent time-
periods and subquota allocations from one year to the next unless ICCAT 
provides a new recommendation for the U.S. BFT TAC.
    Comment 11: NMFS received a number of comments opposing the removal 
of the Angling category North/South dividing line and one comment 
supporting its removal. The comments include: the BFT North/South 
dividing line should be maintained as it was created to provide ``fair 
and equitable'' distribution of the BFT quota; it appears that the 
reason for removing the North/South line is not due to a lack of real 
time data, but because of participant noncompliance with the current 
call-in system; NMFS should devise a reliable real-time data collection 
system for recreational BFT landings; the funds used to support the 
current LPS program should be reallocated to implement tail tag 
programs at the state level, similar to North Carolina and Maryland; 
and the agency should develop more recreational set-asides to further 
ensure that recreational participants are provided an equitable 
opportunity to harvest a portion of the Angling category quota.
    Response: NMFS has modified the selected alternative, F4, from the 
Draft Consolidated HMS FMP by removing the proposal to eliminate the 
North/South Angling category dividing line and thereby maintaining the 
status quo regarding this recreational management tool.
    NMFS acknowledges the recreational fishery supports the North/South 
line for a variety of socio-economic reasons. Based on the social and 
economic impacts associated with the status quo alternative, NMFS 
prefers retaining the North/South line at this time. However, for this 
management tool to be most effective, NMFS requires real-time BFT 
landings data from the recreational sector. To date, compliance with 
the recreational Automated Landing Reporting System (ALRS) has been 
low, thus hindering the real-time effectiveness of this management 
tool. If compliance with the ALRS requirements increases or, as 
recreational catch monitoring programs are improved over time, the 
effectiveness of this management tool may increase.
    Comment 12: NMFS received two comments regarding the clarification 
of the school size-class BFT tolerance calculation. One comment 
supported the selected alternative that will calculate the school size-
class tolerance amount prior to accounting for the NED set-aside quota 
because it brings the calculation more in line with the ICCAT 
recommendation regarding school size-class BFT tolerances. The second 
comment stated there was no recreational input when the tolerance limit 
was implemented, and the tolerance limit should be 15- or 16-percent of 
the total quota.
    Response: This rule will clarify the procedure NMFS uses to 
calculate the ICCAT recommended 8 percent tolerance for BFT under 115 
cm (young school and school BFT), thus implementing the ICCAT 
recommendation more accurately based on the specific language contained 
in the recommendation. Regarding the comment stating a lack of 
recreational input in developing the 8 percent tolerance limit for the 
smaller size classes of BFT, ATCA authorizes domestic implementation of 
ICCAT- adopted management measures, and provides that no U.S. 
regulation may have the effect of either increasing or decreasing the 
quota or fishing mortality level adopted by ICCAT. ATCA also provides 
that not more than three Commissioners shall represent the United 
States in ICCAT. Of the three

[[Page 58108]]

U.S. Commissioners, one must have knowledge and experience regarding 
recreational fishing in the Atlantic Ocean, Gulf of Mexico, or 
Caribbean Sea. In addition, the U.S. Commissioners are required to 
constitute an Advisory Committee to the U.S. National Section to ICCAT. 
This body, to the maximum extent practicable, consists of an equitable 
balance representing the interests of various groups concerned with the 
fisheries covered by the Convention, including those of the 
recreational community.
    Comment 13: NMFS received a number of comments for and against 
implementing a rollover limitation for each domestic quota category. 
Those in support of the limitation include: a rollover cap should be 
implemented, but the cap should be set lower because a rollover of up 
to 100 percent of a category's baseline allocation could be harmful to 
the fishery in future years as it will lead to unsustainable 
overcapitalization; and NMFS must develop a way to track size classes 
of BFT entering the Reserve category as a result of this cap, so there 
are no conflicts with overall mortality estimates.
    Comments in opposition of the rollover limitation include: rollover 
of quotas should be eliminated to increase conservation; limiting the 
amount of quota that categories can roll over is not appropriate at 
this time; NMFS should not get ahead of ICCAT as it compromises the 
U.S. delegation's ability to negotiate multilateral implementation in 
the future; long term ramifications of lost quota have not been fully 
explored on both domestic and international fronts; and the United 
States should not ask any more of its citizens while quota is not 
harvested, and international conservation measures are not equivalent.
    Other comments NMFS received regarding this issue include: when 
there is surplus quota in commercial categories, recreational anglers 
should be permitted to take part of this surplus; categories should not 
be punished or rewarded for not harvesting the quota until all 
arbitrary regulations have been removed; the Agency needs to proceed 
cautiously with rolling over quota in case there is a stock issue; 
however, the United States needs to maintain control of the 
underharvests due to the lack of conservation of other member nations; 
rollovers from the previous fishing year should be accessible in the 
January time period if the selected alternative to change back to a 
calendar year is implemented; uncaught sub-period quota should be 
rolled forward to allow for year-round General category landings. If 
the fishing year is changed to January 1, then any prior year's 
uncaught quota should be allowed to be caught between February 1 and 
May 31; implementing a domestic rollover limitation would adversely 
affect our ability to negotiate at ICCAT as the bottom line remains the 
same regardless of which domestic category the underharvest resides in; 
rollover limitations are helpful, however this item should be addressed 
at ICCAT; and, the Agency needs to be aware of the ripple effects quota 
rollovers have on business planning late in the season.
    Response: This rule authorizes NMFS to limit the amount of BFT 
quota that may be carried forward from one fishing year to the next. By 
establishing a limitation that may be imposed on each domestic quota 
category, except the Reserve, NMFS will be better equipped to address 
quota stockpiling situations if they arise. This rule will not preclude 
inseason quota transfers to any of the domestic quota categories if 
warranted. Due to the different size classes that each category may 
target, the number of BFT per metric ton may differ; therefore the 
origin of the quota entering the category must be noted, to ensure 
mortality levels are consistent with those accounted for in the stock 
assessment. This rule will have minimal conservation benefits on the 
Western Atlantic BFT stock as a whole. NMFS supports an international 
discussion on the use of rollover caps, as well as their pros and cons. 
Implementing the potential use of a cap domestically should not 
adversely affect the U.S. delegation's ability to negotiate and play a 
strong role on this issue as U.S. BFT quota levels will remain 
consistent.
    Comment 14: NMFS received comments supporting the consolidation of 
the inseason action determination criteria. These comments consisted 
of: revising and consolidating the criteria for BFT management actions 
improves the agency's flexibility and consistency in making 
determinations; and the preferred alternative should be selected, 
however, it needs to be clarified if the criteria have a different 
ranking of importance.
    Response: Consolidating and refining the criteria that NMFS must 
consider prior to conducting any inseason, and some annual, actions 
will assist in meeting the consolidated HMS FMP's objectives in a 
consistent manner, providing reasonable fishing opportunities, 
increasing the transparency in the decision making process, and 
balancing the resource's needs with users' needs. The criteria listed 
are in no particular order of importance and will be fully considered, 
as appropriate, in making a determination; however, in some 
circumstances, not all criteria will be relevant to the decision making 
process.
    Comment 15: NMFS received a number of comments that did not 
directly address the actions being proposed in the Consolidated HMS 
FMP, but are more general in nature or are more pertinent to the 
recently proposed 2006 Atlantic BFT Quota Specification and effort 
controls. These comments consist of: the maximum three fish per day 
General category bag limit should be eliminated. Flexibility to set the 
bag limit higher may be needed as the fishery evolves and to allow for 
the possibility of a distant water General category fishery; NMFS 
should relax the ``tails on tuna'' requirement. The tail is not 
necessary for species identification. This requirement prevents higher 
quality cleaning and storage at sea. Many years of data confirm that 
prohibited undersized tunas are either not encountered or are extremely 
rare in this fishery. ICCAT has eliminated the minimum size for some 
Atlantic tunas. The tails on requirement is an unnecessary and costly 
burden that should be removed; NMFS is using RFDs to deny fishermen a 
reasonable opportunity to catch the quota and to make U.S. fishermen do 
more to conserve BFT than fishermen from other countries with ICCAT BFT 
quotas. NMFS should not implement RFDs unless the General category 
quota is in immediate danger of being exceeded. NMFS should remove 
every domestic restriction that denies U.S. fishermen a reasonable 
opportunity to catch the quota.
    Response: This action does not address these specific items, 
however, the 2006 Atlantic BFT quota specifications and effort controls 
address retention limits, as well as the use of RFDs in the coastwide 
General category. The final initial 2006 specifications published on 
May 30, 2006 (71 FR 30619). Regarding the removal of tuna tails, NMFS 
has received past comments from the industry, particularly the HMS CHB 
sector, to investigate this possibility. However, the proposal to 
process HMS at sea may compromise enforcement of domestic size limits. 
To date, NMFS has been able to enforce the domestic size limits for HMS 
through curved measurements, which requires the tail remain on the 
fish. This has been an efficient and effective way of enforcing size 
limits.
    Comment 16: NMFS received comments requesting changes in the

[[Page 58109]]

allowable use of harpoons on CHB vessels. These comments include: NMFS 
should authorize the use of harpoons as primary gear to target giant 
BFT from the pulpit of CHBs to allow maximum flexibility. With the cost 
of doing business rising daily and the fishery changing dramatically 
over the past few years, this antiquated prohibition needs to be 
modified to allow CHB operators the opportunity and versatility to 
harpoon BFT on days that they are not carrying paying passengers. This 
rule was originally written to curb the sale of undersized BFT, which 
is no longer an issue.
    Response: In 1993, NMFS created a recreational Atlantic tunas 
permit that was required for CHB or privately operated vessels 
targeting any of the regulated Atlantic tuna species. This rulemaking 
also established a list of allowable gears that can be used to harvest 
tunas. In 1995, NMFS removed the ability for vessels to hold more than 
one permit at a time. In that 1995 rulemaking, NMFS proposed, collected 
comments on, and finalized a list of authorized gears for the CHB 
sector of the fishery. Harpoons were not proposed as an authorized 
gear, nor were any comments received requesting this gear type be 
authorized for CHB vessels at that time; therefore, harpoon gear was 
not listed as an authorized primary gear type. As NMFS has conducted a 
number of rulemakings regarding permits, permissible gears, and 
targeted species, NMFS intends to conduct a comprehensive rulemaking 
regarding all HMS permits that could include, among other things, 
further rationalizing some segments of the HMS fisheries or 
restructuring the permit process (gear-based, species-based, or both). 
This future rulemaking may be better suited to address further 
revisions to authorized gears and the permitting structure for managed 
HMS. The issue of allowing the use of various gears to subdue HMS 
caught on authorized primary gears was analyzed in the Final 
Consolidated HMS FMP. Please refer to discussions of Authorized Fishing 
Gear.
B. Timeframe for Annual Management of HMS Fisheries
    Comment 1: Public comments expressed both support and opposition 
for administratively adjusting all HMS fisheries to a calendar year. 
Commenters asked the following: what has changed since fisheries were 
originally shifted from a calendar year; Is the United States in 
compliance with ICCAT reporting requirements using a fishing year? 
Several commenters stated that use of a fishing year was not a 
disadvantage at ICCAT.
    Response: This rule will adjust tuna, swordfish, and billfish 
fisheries so that all HMS fisheries occur on a calendar year. The 
previous shift from a calendar year to a fishing year (1996 for 
swordfish, 1999 for tuna and billfish) accommodated domestic markets 
for swordfish and provided additional time for rulemaking to implement 
ICCAT recommendations, since ICCAT traditionally meets in November of 
each year. Use of a fishing year is allowed by ICCAT. Since the fishing 
year was implemented for these species, several aspects of the 
fisheries and their management have changed. For the past several 
years, the U.S. has not fully harvested its swordfish quota, and has 
carried over quota underharvest from one year to the next. Because of 
this underharvest, summer swordfish markets have not been limited by 
the amount of quota available, and starting the fishing year in early 
summer to avoid quota shortfalls has been unnecessary. In addition, 
after several years of experience with ICCAT negotiations since the 
U.S. implemented the fishing year, NMFS and the U.S.'s ICCAT delegation 
have found misunderstanding regarding data alignment over time periods 
unnecessarily confuses decisions, negotiation, and ultimately 
enforcement of ICCAT recommendations. Adjusting tuna, swordfish, and 
billfish fisheries to a calendar year will increase transparency in 
U.S. data and statistics, and help focus on achieving domestic and 
international fishery management objectives such as reducing/
eliminating IUU fishing.
    Comment 2: Commenters expressed concern about the timely 
implementation of ICCAT recommendations under a calendar year, the 
potential disadvantage to U.S. fishermen if ICCAT recommendations were 
not implemented in a timely fashion, and the need for fishery 
specifications to be available prior to the start of calendar year 
fisheries.
    Response: NMFS recognizes that switching back to a calendar year 
will reduce the amount of time between the adoption of ICCAT 
recommendations in November and the start of calendar year fisheries on 
January 1. This HMS FMP will adjust the process for issuing annual BFT 
specifications by consolidating the analysis in the FMP itself, and 
thus reducing the annual burden and associated amount of time necessary 
for promulgation of the annual specifications. NMFS anticipates that 
BFT specifications will usually be issued on time using these newly 
adopted procedures. Although ICCAT recommendations that can adjust 
quotas may be adopted at any time, usually such adjustments occur after 
stock assessments, which are performed at several year intervals. Thus, 
on average, more complex rulemakings are anticipated to occur less 
frequently. NMFS notes that rulemakings that adjust quotas or implement 
other significant changes in fishery management programs usually 
require more than the amount of time (e.g., seven months) that would 
have been available between adoption of a recommendation at ICCAT and 
start of the fishing year, if fisheries had been maintained on a 
fishing year schedule rather than adjusted to a calendar year.
    Comment 3: Commenters opposed the adjustment to a calendar year 
because of potential socio-economic impacts of a shift to calendar year 
in combination with the proposed ICCAT 250 marlin limit, particularly 
for billfish tournaments. Commenters stated the following: a basic 
analysis demonstrating the economic importance of billfish tournaments 
should be included, and millions of dollars of prize money is missing 
from the current analysis; what is the impact if a large tournament 
that happened later in the year was restricted to catch and release 
fishing only; and, it appears that adjusting all HMS fisheries to a 
fishing year will socio-economically benefit most HMS fisheries.
    Response: The HMS FMP identifies that the potential for reaching 
the ICCAT marlin 250 limit is low and subsequent prohibition of marlin 
landings unlikely. Over the past several years, U.S. billfish landings 
have only been attained in a single year. In addition, the FMP includes 
a measure that will allow increases in size limits as a means of 
reducing landings to avoid attaining the limit and implementation of 
catch and release fishing only. Despite the limited potential for 
reaching the limit, the Consolidated HMS FMP analyzes potential impacts 
should the limit be attained, using the worst case scenario that 
tournaments would be cancelled if the limit were attained. This 
analysis indicates that socio-economic impacts could be higher under a 
calendar year scenario. These impacts could be mitigated if tournaments 
required catch and release. On balance, NMFS anticipates that the 
benefits, as described in Chapter 4 of the HMS FMP and in the response 
to Comment 1 of this section, provided by switching to a calendar year 
and other regulatory adjustments set forth in the Consolidated HMS FMP 
will outweigh potential negative impacts. NMFS did not identify, nor 
did commenters provide, any positive socio-economic

[[Page 58110]]

impacts for switching the shark fishery to a fishing year. Impacts of 
concern for ICCAT managed fisheries (e.g. tuna, swordfish, and 
billfish) are discussed in the response to Comment 1 of this section.
    Comment 4: Several commenters questioned the effect of a change to 
calendar year on the January General category BFT fishery, particularly 
the disposition of quota underages that may have occurred in the 
previous calendar year. Commenters stated the following: I oppose a 
shift to calendar year because of the potential negative impacts to 
southeastern fishermen; and, I support a roll-over provision from 
December to January similar to the rollover provision that exists 
between sub-periods during a fishing year.
    Response: The HMS regulations at 50 CFR 635.27(a)(1) divide the 
General category quota into three subperiods including June through 
August, September, and October through January. These regulations 
further state that NMFS will adjust General category subperiod quotas 
based on under- or overharvest during the previous subperiod. 
Currently, the last subperiod spans the winter south Atlantic BFT 
fishery which usually begins in November and continues until the 
General category closes (at the latest on January 31). Under the 
Consolidated HMS FMP, these subperiods will be adjusted so that the 
winter fishery will include separate subperiods in December and 
January, each of which occur in a separate fishing year. An active 
fishery did not occur across the change of quota years prior to the 
1999 FMP, which originally adjusted the BFT fishery to a fishing year. 
In addition, prior to 2003, the BFT fishery rarely experienced 
underharvest and roll-over of unharvested quota. Under this 
Consolidated HMS FMP, the January subperiod will have a quota of 5.3 
percent of the annual ICCAT allocation. In consideration of a potential 
underharvest and rollover of General category quota from one calendar 
year to the next (i.e., December to January), NMFS has explored various 
ways to manage this situation. A preferred approach would depend upon 
the magnitude of the underharvest and the needs of the fishery at the 
time. Several potential alternatives regarding the disposition of 
carryover of any under or overharvest during the December subperiod are 
discussed in Chapter 4 of the Consolidated HMS FMP. In the first 
alternative, any under or overharvest could be fully rolled over into 
January of the following fishing year in addition to the baseline 5.3 
percent. Under this scenario, the entire underharvest would be added to 
the January subperiod quota, or the entire overharvest would be 
subtracted from the subperiod quota. In another potential alternative, 
5.3 percent of the under- or overharvest would be applied to the 
January subperiod in addition to the baseline 5.3 percent. In a third 
alternative, no under- or overharvest would be added or subtracted from 
the January subperiod's 5.3 percent allocation. NMFS will work with the 
affected constituents through the annual BFT specification process to 
determine the most appropriate approach based on constituent needs and 
Federal requirements.
C. Authorized Fishing Gears
    Comment 1: NMFS received several comments in support of and opposed 
to the introduction of new gear. Comments supporting the introduction 
of new gears include: expansion of authorized gears would be acceptable 
in underexploited fisheries. Gears without bycatch problems could 
improve the availability of swordfish to the American public; and, gear 
innovations should not be stymied. Comments opposed to the introduction 
of new gears include: I am opposed to the introduction of any new 
commercial fisheries; do not allow new effective gears in fisheries 
that are undergoing rebuilding; do not allow any new gear types, 
especially for BFT; why should NMFS authorize new gears?; NMFS has 
reported that all HMS fisheries are fully harvested or overfished. 
NMFS's proposal to legalize new commercial gear violates National 
Standard 1, which is to prevent or end overfishing of tuna, swordfish, 
billfish, and sharks; this will not permit overfished stocks to 
rebuild. Additional new commercial gear can only result in fully 
harvested HMS becoming overfished; we do not support allowing new gears 
into overfished fisheries except for use as experimental fishing 
permits; NMFS proposes to authorize new commercial gear types that can 
only increase the harvest of HMS; and there is a lot of resistance to 
new gears in the Gulf of Mexico.
    Response: 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. While NMFS needs to evaluate new and 
innovative gears and techniques to increase efficiency and reduce 
bycatch in fisheries for Atlantic HMS, the Agency did not select any 
new fishing gears for the HMS commercial fisheries at this time. 
Further, this action will not authorize any new gears for the bluefin 
tuna commercial or recreational fisheries.
    In this action, NMFS considered the definition and authorization of 
speargun gear, green-stick gear, and buoy gear, as well as the 
clarification of the allowable use of secondary gears (also known as 
cockpit gears). At this time, NMFS is authorizing only one new gear for 
the HMS fisheries, recreational speargun fishing for Atlantic BAYS 
tunas. NMFS does not believe that the addition of speargun fishing for 
Atlantic BAYS would disrupt existing rebuilding plans for overfished 
BAYS tunas given the current number of participants in the recreational 
Atlantic tuna fishery relative to the expected number of 
spearfishermen. Additionally, taking into account the estimated low 
encounter rates for target species using speargun fishing gear, the 
additional anticipated effort from spearfishermen will likely result in 
minimal increased landings compared with the landings by current 
Angling and CHB category participants. A limited number of additional 
individual fishermen are expected to use this gear type, and 
spearfishermen may actually fish for months or years without having an 
opportunity to spear a tuna. All sale of tuna harvested with 
recreational speargun fishing gear will be prohibited in order to 
clarify the intent of authorizing this gear type, which is to allow a 
small group of fishermen an opportunity to use spearguns to 
recreationally target BAYS tuna. BFT are excluded from the list of 
allowable target species for speargun gear due to the recent declining 
performance of the existing BFT fishery, recent quota limited 
situations within the BFT Angling category, and ongoing concerns over 
stock status.
    The selected buoy gear alternative will not authorize a new gear; 
rather, it will rename the handline fishery for commercial swordfish 
and limit the number of gears deployed in this fishery. Defining ``buoy 
gear'' was necessary because the Final Consolidated HMS FMP will also 
modify the ``handline'' definition to require that the gear be attached 
to a vessel. Therefore, under the selected alternative, the commercial 
swordfish handgear fishery will be the only fishery where free-floating 
handlines, now referred to as buoy gear, will be authorized. Under this 
rule, buoy gear fishermen will be limited to possessing or deploying no 
more than 35 floatation devices, with no more than two hooks or 
gangions attached to each individual gear. Prior to this action, buoy 
gear had been utilized with no limit on the

[[Page 58111]]

number of gears deployed, as long as each gear had no more than two 
hooks attached and it was released and retrieved by hand. Also, both 
recreational and commercial fishermen were able to use this gear in 
areas closed to PLL gear. Under the selected alternative, buoy gear 
will be prohibited for use by all commercial fishermen without a 
swordfish handgear or directed limited access permit and by all 
recreational fishermen. Additionally, when targeting swordfish 
commercially, the number of individual gears a vessel may possess or 
deploy will be limited to no more than 35. Vessels with directed 
swordfish or swordfish handgear LAPs may use this gear type to capture 
swordfish in pelagic longline closed areas, provided all longline gear 
has been removed from the vessel. While buoy gear will be allowed in 
the Gulf of Mexico, the swordfish handgear fishery does not appear to 
be widespread and operates primarily off the East Coast of Florida, 
according to public comment.
    Based on public comment, the Agency prefers to clarify the 
authorized configuration of green-stick gear, rather than proceed with 
authorization and definition of the gear-type that may further add to 
the confusion and have unintended negative consequences to the fishery 
and resource. Public comments were opposed to and supported authorizing 
green-stick gear for the commercial harvest of Atlantic BAYS tunas; 
expressed considerable confusion over the current regulatory regime; 
were concerned about the need for better reporting, monitoring, and 
overall data collection for this gear-type; and expressed a need to 
further understand the gear's technical nature.
    Comment 2: Commercial HMS handline gear, buoy gear, and green-
sticks should be prohibited in the closed areas.
    Response: The current HMS closed areas were specifically developed 
for a particular gear type (e.g., PLL or BLL) to reduce bycatch and 
discards. At this time, there are no time/area closures for buoy and 
handline gear. If a green-stick is configured with more than two hooks, 
then it would meet the definition of ``longline,'' and thus, would also 
be prohibited from certain closed areas. If future data indicate that 
the bycatch rates of these gears are high, NMFS would consider closing 
certain areas, or other management measures, to minimize bycatch and 
bycatch mortality, to the extent practicable.
    Comment 3: NMFS received a comment concerned about the bycatch 
associated with the introduction of new gears. Those comments include: 
small tuna fisheries, like NMFS is trying to promote with the handline, 
buoy, and green-stick fisheries, will negatively affect marlin stocks 
because they target marlin prey species; and, were any bycatch analyses 
conducted for the proposed authorized gears?
    Response: This action will not change the currently allowed and 
authorized use of green-stick gear in any HMS commercial fishery. This 
action distinguishes between handlines and buoy gear, such that 
handlines must be attached to the vessel and buoy gear will be allowed 
to float freely; however, both handlines and buoy gear were authorized 
and used in HMS fisheries commercially and recreationally prior to this 
action. The rule limits buoy gear usage to the commercial swordfish 
fishery for individuals with a swordfish handgear or directed limited 
access permit. No HMS other than swordfish may be harvested with buoy 
gear. Because swordfish is not a marlin prey species, the Agency does 
not believe buoy gear will have a negative impact on marlin stocks. No 
bycatch analyses are available for handline or buoy gear, but data from 
the logbooks were reviewed. The HMS logbook does not distinguish 
between attached and unattached handlines, so specific information on 
unattached handline (or buoy gear) catch is limited. In general, the 
HMS commercial handline fishery has relatively few discards. While 
there are no bycatch analyses available for recreational speargun 
fishing, public comment suggests that the number of individuals using 
this gear will be small and those that do use the gear expect low 
encounter rates with target species. According to public comment, this 
fishery is highly selective and the gear has been designed to retain 
speared fish and reduce fish loss. With the authorization of this gear 
for the recreational harvest of BAYS tunas only, information about 
speargun catch will be captured via the MRFSS and LPS.
    Comment 4: NMFS should clarify the HMS authorized gear regulations 
to allow for gear stowage provisions. Such provisions would enable 
vessels to diversify, and would also provide vessels with the ability 
to operate in other fisheries. The Northeast gear stowage provision 
needs to be acknowledged in the HMS regulations.
    Response: A gear stowage provision for HMS permitted vessels was 
not considered in this action and, therefore, is not authorized at this 
time. NMFS has concerns about the enforceability of such a provision in 
HMS closed areas. The Agency would appreciate additional comments on 
situations where gear stowage provisions are necessary, as well as for 
which particular gears and areas. A gear stowage provision may be 
considered in a future rulemaking, if appropriate.
    Comment 5: NMFS received comments from individuals concerned about 
the use of gillnets in HMS fisheries. These comments include: the 
Georgia Coastal Resources Division supports the removal of shark 
gillnet from the list of authorized HMS gear; and, gillnets should not 
be an authorized gear, particularly sink gillnets due to interactions 
with protected resources and other bycatch. If NMFS is going to 
continue to allow gillnets, the vessels should be required to use VMS 
year round.
    Response: NMFS considered prohibiting the use of shark gillnet gear 
as part of a range of commercial management measures to prevent 
overfishing of finetooth sharks, but did not pursue this option because 
finetooth sharks would continue to be discarded dead in other non-HMS 
fisheries, and thus, the prohibition would not likely prevent 
overfishing. In this action, NMFS will require shark gillnet vessel 
owners and operators to attend the protected species safe handling and 
release workshop and obtain certification. The goal for this workshop 
will be to reduce the mortality of sea turtles, smalltooth sawfish, and 
other protected species. At this time, vessels issued a directed shark 
LAP with a gillnet on board that are away from port during the right 
whale calving season must have VMS on board. This action did not 
consider expanding this condition to require VMS on shark gillnet 
vessels year round.
    Comment 6: There is confusion regarding the proposed gears. The 
process needs to slow down, and we need to make sure we understand what 
our goal is. We should be encouraging innovation. Each gear needs to be 
reviewed to determine where each gear appropriately fits; the public is 
going to need more education on the proposed gears and associated 
requirements. The Agency needs to clarify before authorizing; and, the 
language in the alternatives needs to be looked at, it appears some 
alternatives are allowing use to continue and others are allowing its 
entry.
    Response: While NMFS encourages the use of clean and efficient 
gears, this action will authorize the use of only one new gear type due 
to the stock status of several HMS. Speargun fishing gear will be 
authorized only for permit holders with HMS Angling category or HMS CHB 
cateogry permits and users will be allowed only to target Atlantic BAYS 
tunas recreationally. It will not be

[[Page 58112]]

authorized for BFT, or any other HMS. The sale of BAYS speared by 
speargun gear is not allowed. The selected alternative for buoy gear 
will not be an introduction of new gear, rather a clarification of an 
existing gear and a restriction on the number of floatation devices 
used in the existing commercial swordfish handgear fishery. In an 
effort to reduce confusion and increase compliance, NMFS will modify 
the HMS compliance guide and other outreach materials to reflect these 
changes to the HMS authorized gears.
    Comment 7: NMFS must clarify that a longline vessel is allowed to 
use the following fishing gears when not longline fishing: handgear 
including, harpoon, handline, and rod and reel (plus the green-stick 
method, if authorized).
    Response: The HMS regulations at Sec.  635.21(e)(1) state that if 
an Atlantic BFT is retained or in possession, the vessel may employ 
only the gear authorized for the particular Atlantic tunas or HMS 
permit category issued to the vessel. In other words, with a BFT on 
board and an Atlantic Tunas Longline permit issued to the vessel, only 
longline gear may be possessed or employed. When fishing for Atlantic 
BAYS tunas, the vessel may employ fishing gear authorized for any 
Atlantic Tunas permit category. The two exceptions are 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 as well as LAPs 
for both swordfish and sharks. When targeting Atlantic BAYS tunas with 
an Atlantic Tunas Longline permit, a vessel may use handgear (i.e., 
harpoon, handline, rod and reel, and bandit gear) provided BFT are not 
in possession or retained on board the vessel. However, the vessel must 
possess all applicable and valid Federal permits, possess the safe-
handling and release placard and equipment, and abide by the longline 
gear restrictions (e.g., closed areas and circle hooks). If a vessel is 
fishing in a closed area and has longline gear on board, it is a 
rebuttable presumption that longline gear was used to catch any fish on 
board that vessel. Green-stick and rod and reel gear may be utilized on 
a pelagic longline vessel, so long as all other PLL management measures 
are adhered to, including the use of circle hooks.
i. Spearfishing
    Comment 8: NMFS received numerous comments supporting the 
authorization of speargun gear in the recreational Atlantic tuna 
fishery, specifically alternative H2, which would authorize speargun 
fishing gear in the recreational Atlantic tuna fishery. The comments 
include: authorizing speargun fishing gear for Atlantic tunas would 
provide very high economic benefits and produce very low ecological 
impacts; the impact of tuna spearfishing would be minimal and the 
number of participants would be low; spearfishermen were left out of 
the List of Fisheries for tunas and sharks when initially established; 
and, a speargun fisherman can choose his target, assess his chances, 
and be more discriminate in his hunting, which is not something a hook 
and line fisherman can do. Comments received in support also stated 
affirmation that recreational divers would be allowed to be transported 
to the site by a charter dive boat; and, the tuna regulations would 
allow the taking of tuna in the Atlantic with handheld, rubber band or 
pneumatic power spearguns by recreational fishermen while underwater.
    Response: This rule will authorize the use of spearguns in the 
recreational Atlantic BAYS tuna fishery. Holders of recreational HMS 
Angling and HMS CHB permits will be allowed to carry spearguns and fish 
for, retain, and possess any of the BAYS tunas using speargun gear. 
Speargun gear will not be authorized under any other HMS or Atlantic 
tuna vessel permit or for any other HMS species. Speargun gear will not 
be authorized to fish for, retain, or land Atlantic BFT. BAYS tunas 
killed and landed with the use of speargun gear may not be sold under 
any circumstances, including by owners, operators, or participants on 
HMS CHB vessels. Fishermen using speargun fishing gear will be allowed 
to freedive, use SCUBA, or other underwater breathing devices, and will 
be required to be physically in the water when they fire their 
speargun. Only free-swimming fish, not those restricted by fishing 
lines or other means, may be taken. The use of powerheads, or any other 
explosive devices, will not be allowed to harvest or subdue BAYS tunas 
with this gear type. In addition, spearfishermen will be required to 
abide by all existing recreational management measures under the 
Angling category regulations when recreationally fishing for BAYS tunas 
(i.e., minimum size requirements of 27 inches curved fork length for 
BET and YFT, three YFT retention limit per person per day, as well as 
all current state and Federal reporting requirements).
    Comment 9: NMFS received several comments that supported 
spearfishing gear but requested allowing its expansion beyond 
recreational tuna fishing while other comments supported additional 
restrictions. Comments in support of expansion include: adding 
spearguns as an allowed gear for sharks; and, all HMS fisheries should 
eventually open to spearfishing. The GMFMC specifically supported 
spearfishing as an approved gear for all HMS fisheries, including 
sharks, and recommended that the gear be authorized for recreational 
and commercial harvest. In contrast, other comments supported 
restricting the use of spearguns as proposed, stating no sale should be 
allowed for anyone when a tuna is harvested with a speargun under any 
circumstances, and speargun fishermen should not be allowed to sell 
tuna catches from CHB vessels as proposed. A commenter stated his 
concern that the ability to sell fish might be viewed as an impediment 
to allow participation in this fishery and, thus, NMFS should not allow 
sale of fish to avoid jeopardizing any chance of authorizing 
recreational use of speargun fishing gear. NMFS also received comments 
to further restrict the use of speargun fishing gear to allow only 
freedivers to harvest tuna (i.e., not allow SCUBA gear) consistent with 
original public comment on use of this gear-type.
    Response: This rule will authorize the use of spearguns in the HMS 
recreational fishery only for Atlantic BAYS tunas. This measure will 
provide speargun fishermen an opportunity to use this gear-type and 
will increase the social and economic benefits for this user-group. 
While providing this opportunity, NMFS is also balancing concerns of 
introducing a new gear type in fisheries with considerable numbers of 
existing fishermen participating in exploited fisheries. Since 
publication of the list of authorized gears and fisheries and the 1999 
FMP, spearfishermen have consistently argued for access to HMS 
fisheries. Spearfishermen have argued in particular for recreational 
access to the Atlantic tuna fishery to target big tuna for the social 
and recreational opportunity rather than the desire for economic gain. 
This rule will prohibit the sale of Atlantic BAYS tunas captured by 
speargun to minimize the possibility of additional expansion of the 
user-group to those interested in commercial gain from the activity and 
inconsistent with intent of the selected alternative. Spearguns will 
not be allowed to target BFT, primarily due to the depleted status of 
the western Atlantic stock, uncertainty over the status of the stock, 
and continuing poor performance of the fishery. The use of

[[Page 58113]]

spearguns in HMS fisheries other than the Atlantic tuna fishery, (i.e., 
shark, billfish or swordfish fishery) was not considered in the Draft 
Consolidated HMS FMP, although as these stocks improve some additional 
fishing opportunities for new and efficient gear-types may be 
considered in the future. NMFS considered further restricting speargun 
activity to only free-divers, (i.e., no SCUBA gear or other types of 
underwater breathing apparatus) to further limit the universe of 
participants. Free-divers were the original group of speargun fishermen 
who had requested the opportunity to participate in the recreational 
tuna fishery. However, it was determined that not allowing SCUBA gear 
would have raised additional safety concerns.
    Comment 10: NMFS received several comments regarding aspects of 
speargun fishing that would keep participation and catch low. Those 
comments include: technical knowledge barriers for a novice and 
inexperienced individual that wishes to engage in this activity; 
harvesting two or three tunas in a lifetime would be lucky because a 
speargun fisherman needs to know what they are doing and where to go 
fishing; there are not a lot of opportunities to learn how to spear 
BAYS tuna; the cost of the equipment including the initial cost of 
upgrading spearfishing gear (e.g., larger gun, shafts, spearpoints, 
floats, lines, and safety items) will exceed $3,000 and that is before 
chartering a vessel; and the need to use a boat to access BAYS fishing 
grounds.
    Response: NMFS acknowledges that the number of participants using 
spearguns in a recreational BAYS tuna fishery is likely to be low and 
the number actually encountering and successfully striking a BAYS tuna 
lower still. NMFS understands that the primary intent of allowing the 
use of spearguns in the recreational BAYS tuna fishery is to allow 
participants the opportunity and access to the fishery for the 
recreational and social benefits it affords. Successful participation 
would still mean adequate preparation and/or possible training (e.g., 
dive certificate) and the correct equipment. However, willing 
participants will no longer be prohibited by regulation from using 
spearguns in the recreational BAYS fishery.
    Comment 11: NMFS received comments related to the level of bycatch 
associated with speargun fishing. Those comments include: most 
recreational fishermen practice catch-and-release fishing, but speargun 
fishermen practice release-and-catch fishing; speargun fishermen are 
very selective about the fish being targeted and use one shot, usually 
resulting in no bycatch; and spearfishermen can see the fish and do not 
take unwanted species or undersized fish; and they leave no lines or 
other gear on the bottom to snag other fish, lobster, or turtles. A few 
comments stated concerns that some spearguns under this gear type may 
not have the capability to land large HMS, resulting in a source of 
unreported mortality and that spearing a fish that dies without being 
harvested would be considered bycatch.
    Response: There are minimal data available to support or refute 
concerns regarding bycatch by spearguns in the BAYS fisheries. It is 
evident that the nature of the gear-type can be highly selective and 
targeted to specific fish, unlike traditional hook-and-line fishery. 
Spearfishermen are unlikely to injure other species such as HMS, sea 
turtles, or marine mammals as they can selectively target their catch. 
However, it remains unknown how many strikes of targeted BAYS may 
result in mortality and retention versus wounding and subsequent escape 
with some unknown proportion mortally wounded. Public comment by 
spearfishermen states that it is possible to accurately identify 
species and size class before firing the spear and thus the bycatch and 
mortality of incorrect species (e.g., BFT) or undersized tuna (i.e., 
less than 27 inches) should be minimal.
    Comment 12: NMFS received several comments regarding potential gear 
and user conflicts that may arise with the authorization of speargun 
gear such as: nothing prevents divers from dropping a dive flag in the 
middle of a group of rod and reel vessels or on a specific wreck, and 
driving rod and reel vessels off the fish/wreck. In contrast, other 
commenters noted that spearfishermen and diver interactions with boat 
traffic should not be an issue in offshore fisheries, as it can be in 
inshore waters, that the spearfishing community has taken as many 
precautions as possible, and that no accidents have occurred in New 
Hampshire or Rhode Island where speargun fishing gear is currently 
allowed in state waters when targeting striped bass.
    Response: Speargun users and rod-and-reel recreational fishermen 
will need to respect each other's activities and safety when sharing 
the same fishing grounds to avoid gear and user conflicts. Speargun 
fishermen will likely choose fishing areas and tuna hunting grounds 
away from other rod-and-reel vessels to maximize the diver's 
recreational opportunity and minimize safety concerns. Likewise, under 
existing vessel safety regulations (see 33 CFR Subchapter E and the 
U.S. Coast Guard Navigational Rules), recreational vessels must give 
adequate berth to dive-flags in the water and vessels flying diving 
signals.
    Comment 13: NMFS received several comments on the economic benefits 
associated with speargun fishing. These comments include: allowing 
recreational speargun fishing for tuna would create an economic boost 
to coastal communities. When spearfishing, one would usually fill up 
the car with gas, have lunch, buy souvenirs or gear, and sometimes pay 
for a boat ride and not spear many fish; and, at the 4\th\ Annual 
Hatteras Blue Water Open this year, there were 50 entrants from all 
over the world and eight charter vessels generating $60-$75,000 in 
revenue to the area in four days and there would have been more 
participants if tunas were included.
    Response: It is expected that allowing spearguns into the 
recreational tuna fishery will provide an economic benefit to the 
fishery even though the actual sale of landed BAYS tuna will be 
prohibited. Recreational speargun fishermen are likely to invest in 
fishing stores and dive-shops for appropriate gear and contribute to 
local economies by renting hotel rooms and chartering vessels or 
renting equipment, etc.
    Comment 14: NMFS received comments stating that if spearfishing 
gear is allowed to harvest Atlantic tunas, then the Agency must devise 
and implement mandatory permitting, reporting, monitoring, and 
enforcement. One comment specifically stated that if NMFS cannot 
guarantee this, there should not be an additional uncontrollable 
fishery.
    Response: All HMS recreational spearfishing activity must be 
conducted from a federally permitted HMS Angling or HMS CHB category 
vessel. NMFS currently requires mandatory reporting of all recreational 
landings of BFT, swordfish, and billfish via automated telephone 
systems. Although the Agency does not currently have similar 
requirements for recreational landings of BAYS tunas, NMFS monitors HMS 
recreational effort and landings through Federal recreational surveys, 
such as the MRFSS and LPS in addition to State monitoring programs. 
NMFS enforcement works in cooperation with local and State enforcement 
programs to ensure compliance with management measures in both 
recreational and commercial fisheries. NMFS will monitor compliance 
with reporting requirements and may consider modifications to 
requirements, as appropriate, in the future.

[[Page 58114]]

    Comment 15: NMFS received a comment stating that there are 
fishermen currently using spearguns to harvest YFT that do not realize 
it is illegal to use the gear to target Atlantic tunas. Spearfishing 
has been included as a category in some of the tournaments.
    Response: Until the final rule authorizing recreational speargun 
fishing for BAYS tunas takes effect, any use of spearguns to fish for 
any HMS is illegal. The list of authorized gears has been published 
since the end of 1999 (December 1, 1999; 64 FR 67511) and numerous 
brochures and guides that have been published since that date clearly 
specifying the authorized gears for HMS with valid permits. Currently, 
speargun gear is not an authorized gear for any HMS. After the 
effective date of this final rule, speargun gear will be legal for BAYS 
tunas, but not for other HMS.
    Comment 16: NMFS should not allow another directed commercial 
fishery (e.g., speargun fishing gear) for giant BFT.
    Response: This rule does not authorize another directed commercial 
fishery for giant BFT. It does not authorize the use of spearguns to 
fish for, retain, or land any Atlantic BFT, in either the recreational 
or commercial fishery.
    Comment 17: Speargun fishermen would want to target the largest 
fish available due to the difficulty in taking smaller fish, the trophy 
nature of the fishery itself, and the largest take for time and money 
invested in the opportunity.
    Response: NMFS recognizes that a prime motivation for 
spearfishermen to enter the Atlantic BAYS tuna fishery is the 
opportunity to recreationally fish for a big fish. Spearfishermen will 
need to abide by all existing recreational management measures, 
including the minimum size for YFT and BET of 27 inches curved fork 
length and retention limits. There is no minimum size for albacore or 
skipjack tuna. Blackfin tuna are not federally regulated.
ii. Green-Stick Gear
    Comment 18: NMFS received several comments supporting the preferred 
alternative to authorize green-stick gear for the commercial BAYS tuna 
fishery. These comments include: green-stick gear is much better than 
longlines and could be an alternate gear; green-stick gear is the most 
environmentally sound way to harvest tuna; if green-stick gear is a 
viable U.S. HMS fishery, then NMFS needs to be flexible in allowing its 
use; and, the use of green-stick gear for directed fishing by pelagic 
longline vessels when targeting BAYS should be approved. In contrast, 
NMFS received several comments opposed to authorizing green-stick gear 
for tunas. The GMFMC commented that green-stick gear is classified as 
longline gear in the Gulf of Mexico and if it is authorized, it is 
likely to become very abundant and could have a negative impact on 
stressed and overfished stocks; green-stick gear is an excuse for more 
longline fishing using a slightly different method; and green-stick 
gear is similar to longline gear and therefore should not be allowed 
into closed areas.
    Response: This rule will not provide a regulatory definition of 
``green-stick gear'' as a separate authorized gear and as 
differentiated from already authorized forms of handgear (rod-and-reel 
or handline) and longline gear. This is a change from what was 
proposed. Under existing regulations, green-stick gear is already 
authorized depending on how it is configured and how many hooks are on 
each line. Due to the current confusion over what is already allowed 
and how the draft preferred alternative may or may not have changed 
current uses of green-stick gear, NMFS is not modifying the list of 
authorized gears for green-stick gear at this time. In addition to the 
existing confusion and the potential to exacerbate the situation by 
changing the regulations, there is conflicting opinion and little data 
to support or refute its efficiency and impact on target and non-target 
stocks. NMFS intends to publish a brochure clarifying acceptable 
configuration of green-stick gear under the existing HMS regulations. 
In the meantime, NMFS will also work with current logbook and 
monitoring programs to examine ways to collect additional information 
on the use of green-stick gear and its impact on the environment as 
well as its social and economic benefits and consequences.
    Comment 19: NMFS received numerous comments in support of 
authorizing green-stick gear for targeting BFT, as well as BAYS. These 
comments include: green-sticks are permanently attached to the vessel, 
so why do the proposed regulations state that a vessel could never 
possess a BFT onboard if green-stick gear is onboard; green-stick gear 
is the same as the trolling fishery, meaning the same boats, same gear, 
and same permits are used as those used to target BFT; the Japanese use 
this gear to harvest BFT because minimal lactic acids build during the 
fight; green-stick gear should be allowed for all Atlantic tunas 
provided there are mandatory permitting, reporting, monitoring, and 
enforcement of this fishery; BFT have been harvested using green-stick 
gear in the past and should be allowed to be continued; in North 
Carolina, green-stick gear has been used to catch BFT; past BFT 
landings using this gear type have been reported as rod-and-reel 
therefore a group of individuals are going to be adversely impacted if 
BFT are not allowed; this rule will make it even harder to catch the 
BFT quota; and, curiosity as to what conservation benefits are to be 
had by not allowing BFT to be retained as there are other management 
measures in place for BFT such as size and retention limits as well as 
quotas. One comment stated support for General category fishermen to 
target BFT with green-stick. The same commenter only supported the 
authorized use of green-sticks by longline permitted vessels as an 
allowed gear for directed YFT fishing and did not support the use of 
green-sticks by pelagic longline fishermen to target BFT while aboard a 
permitted pelagic longline vessel.
    Response: Throughout the development of the Draft Consolidated HMS 
FMP, most of the analysis and comment from scoping led the Agency to 
determine that green-stick gear was primarily used to target BAYS tunas 
and that the methods of fishing with the gear were not conducive to 
targeting BFT. In addition, due to the current severely depleted status 
of the BFT stock, the introduction of a new gear-type and adding 
fishing pressure in this already heavily capitalized fishery is not 
appropriate at this time. Thus, it was determined in the Draft 
Consolidated HMS FMP that it was possible to consider the use of green-
stick gear, in a manner that modified the status quo, for a BAYS only 
fishery. Furthermore, it was determined that excluding BFT from the 
allowed list of target species would provide marginal positive economic 
and social impacts to the BAYS fishery with neutral biological impacts 
to the BFT stock. However, at several public meetings on the Draft 
Consolidated HMS FMP and in written comment, particularly from the mid-
Atlantic area, it was evident that there is an active interest in using 
the gear to target BFT. The preferred alternative in the Draft 
Consolidated HMS FMP could have eliminated this opportunity allowed 
under the status quo, provided the gear is configured to conform to the 
current regulations. For BFT fishing, these conditions exist generally 
when commercial fishing for BFT in the General category (or with an HMS 
CHB permit) using handgear (rod-and-reel, handline, or bandit gear) 
with two hooks or less. These conditions also exist when recreationally 
fishing for

[[Page 58115]]

BFT in the Angling category (or with an HMS CHB permit) using handgear 
(rod-and-reel or handline) with two hooks or less. The limit on the 
number of hooks for both recreational and commercial handgear has 
helped limit effort in currently overcapitalized fisheries targeting 
species with weak stock status (i.e., either overfished or approaching 
overfishing). Furthermore, the incidental retention of BFT by green-
stick gear, trailing more than two hooks, is authorized under a 
Longline category permit so long as all other corresponding management 
measures are adhered to such as target catch restrictions, use of 
circle hooks, avoidance of closed areas, etc.
    Since the publication of the Draft Consolidated HMS FMP in August 
2005, NMFS received data on the performance of both the recreational 
and commercial BFT fishery. In the case of the commercial fishery, 
landings were low throughout the 2005 fishing season. The 2005 season 
was also marked by a noticeable lack of availability of commercial 
sized BFT throughout their traditional fishing range and, in 
particular, BFT were largely absent off southern states during the 
winter of 2005/2006. Although the available quota in the commercial 
size classes is high, scientists continue to be concerned over the 
status of this stock, especially the abundance of these larger fish 
that represent the potential spawners for future recruitment, 
particularly in the Gulf of Mexico. An international stock assessment 
on the current status, and future prognosis, of BFT is scheduled this 
year by the SCRS and new recommendations, if any, by ICCAT would not be 
available until November 2006. NMFS will continue to analyze potential 
impacts of authorizing green-stick gear and may consider modifications 
in the future, as appropriate.
    Comment 20: NMFS received several comments regarding the technical 
nature of green-stick gear including comments comparing and contrasting 
the gear type to longline gear and commercial or recreational handgear 
such as handline and rod-and-reel. Comments included: green-stick gear 
is very different from longline gear in that when deploying green-stick 
gear the greatest distance the hooks are from the boat is 500 feet, 
whereas PLL gear has one hook a football field length away from one 
another; longline gear is set in the water column with many hooks while 
green-stick is trolled at a high speed with the artificial baits 
suspended above or skipping across the waters surface; this gear is 
trolled and is not set out to drift, which makes it very different from 
the definition of a longline gear; green-stick is similar to longline 
gear therefore it should be prevented from entering into closed areas; 
this gear is still a longline because of the use of hydraulics and 
several hooks; there are two distinct types of green-stick fishing and 
each should be carefully defined separately; the commercial green-stick 
method uses multiple hooks with artificial baits on a single line to 
catch Atlantic tunas, including BFT; the recreational green-sticking is 
an ``angling'' method primarily using rods-and-reels to catch Atlantic 
tunas, including BFT; some recreational gear is being pulled with more 
than two hooks per line; teasers without hooks should be allowed; the 
definition should include using no more than two hooks per any single 
line attached to the green-stick that basically acts as a vertical out-
rigger; green-stick gear should be restricted to hand powered reels; 
green-stick gear is also appropriate for use in the Angling and General 
category fisheries; and, recreational fishermen using green-stick gear 
could open up illegal commercial sale opportunities.
    Response: NMFS notes that there are considerable similarities 
between the use of green-stick gear and recreational and commercial 
handgear as well as longline gear depending on how green-stick gear is 
configured and used under current definitions at 50 CFR parts 600 and 
635 and in accordance with all gear operation and deployment 
restrictions at 50 CFR 635.21. ``Longline'' means fishing gear that is 
set horizontally, either anchored, floating, or attached to a vessel, 
and that consists of a mainline or groundline with three or more 
leaders (gangions) and hooks, whether retrieved by hand or mechanical 
means. Any hook and line gear with three or more hooks is considered to 
be a longline. In addition to the use of rods and reels, ``handline 
gear'' means fishing gear that consists of a mainline to which no more 
than two leaders (gangions) with hooks are attached, and that is 
released and retrieved by hand, rather than by mechanical means. 
Finally, the use of bandit gear and downriggers is also an authorized 
means of deploying and retrieving the hook and line. ``Bandit gear'' 
means vertical hook and line gear with rods that are attached to the 
vessel when in use. Lines are retrieved by manual, electric or 
hydraulic reels. A ``downrigger'' is a piece of equipment attached to a 
vessel and with a weight on a cable that is in turn attached to hook-
and-line gear to maintain lures or bait at depth while trolling. In 
addition to the above definitions and gear restrictions, specific 
additional management measures may apply to the use of gear depending 
on the targeted fishery and HMS or tuna vessel permits (i.e., 50 CFR 
part 635 subpart C, as well as general permitting, recordkeeping, and 
monitoring requirements at 50 CFR part 635 subpart A).
    Comment 21: NMFS received several comments and questions noting the 
level of confusion regarding what constitutes the technical nature of 
``green-stick'' gear, and how it can already be used versus modified by 
the proposed alternative. Comments include: the definition of 
``longline gear'' is the problem, not ``green-stick gear''; over one 
hundred green-sticks have been sold and you need to change the 
definition; it is not the stick that is the most important part of this 
gear, rather the suspended bait attracts the fish, not the number of 
baits; fishermen can use only one rod due to tangling; green-sticks are 
permanently attached to the vessel; green-stick gear is used to catch 
larger tuna, and that the gear is set-up vertically allowing the bait 
to fish further from the vessel; we support the use of green-stick gear 
by commercial vessels, but only if restricted to hand powered reels, 
but not if used with electric or hydraulic reels; this trolling method 
does not require any large device and is easy to set up on a small 
vessel and it is used to catch BFT and YFT around the world; the name 
``green-stick'' comes from the original color of the pole, but today it 
is available in a variety of colors; and, as green-stick gear is 
permanently attached to the vessel there could be enforcement issues as 
the gear can be configured either as commercial or recreational. 
Questions include: what permit would be required to use this gear; 
would live bait be allowed with this gear; will configuration of the 
gear use rods and reels or hydraulic drum, how would one know the type 
of gear used to catch the fish if different gear types are allowed on 
the same vessel but not authorized to land the same species; is there a 
length limit on a rod and reel to distinguish it from green-stick gear; 
what does it matter how many hooks are on the line when operating under 
a General category permit; if we have longline and incidental BFT 
permits can we use green-stick gear; how do the incidental limits apply 
to longline vessels using green-stick gear; under the current 
regulations, what permit would be required for someone who fishes with 
green-stick gear for YFT; which will have more hooks - green-stick gear 
or recreational gear; can green-stick gear fish in the closed areas; do 
the reporting

[[Page 58116]]

requirements for General category permit holders call for reporting the 
gear employed; would green-stick fishermen be able to use live bait as 
it is proposed currently; in which fishery can the gear be authorized; 
is green-stick gear currently used in the Gulf; and can it be used at 
all in the Gulf of Mexico where BFT cannot be targeted since it is a 
spawning area?
    Response: NMFS acknowledges that there is considerable confusion 
over the status of green-stick in the HMS fisheries under current 
management measures. NMFS intends to publish a brochure to clarify the 
current situation. This rule will maintain the current definitions for 
use of longline gear in the longline fishery and handgear in the 
commercial General category, the recreational HMS Angling, and the HMS 
CHB fishery. Thus, the use of green-stick gear is still allowed as in 
the past and in conformance with the appropriate management measures 
and existing reporting requirements for these HMS fisheries. No new 
regulatory definitions or permits are being implemented at this time. 
Green-stick gear can be used in any configuration so long as it 
conforms to current definition of the use of longline or hook-and-line 
handgear as currently defined in the regulations, and as described in 
the response to Comment 20 above.
    Comment 22: NMFS received several comments regarding the need for 
additional data regarding this gear-type. One comment stated the 
fishery needs further analysis on the use and configuration of green-
stick gear and one commenter questioned what information would NMFS 
need collected to conduct a more detailed analysis of the impacts of 
using this gear. A comment stated that there needs to be some 
accommodation of this gear type, even if it is through an EFP to 
collect further information. A comment stated that the information used 
from the North Carolina Sea Grant paper referenced in the Draft 
Consolidated HMS FMP is out of date and that the gear has been altered 
as individuals have gained experience using it.
    Response: NMFS agrees that the Agency and the fishery could benefit 
from additional data on the use of green-stick gear and its impact on 
both the recreational and commercial constituencies, HMS stocks, and 
bycatch. In the past, green-stick gear was identified as a unique gear 
type on HMS Vessel Pelagic Logbook reports, but was discontinued as it 
was not a uniquely identified and defined gear. It also appears that 
fishermen had already been reporting green-stick HMS landings under 
either hook and line gear or longline gear. As a first step, NMFS 
intends to publish a brochure to clarify current allowable uses of the 
gear and how existing vessel and dealer permit and reporting 
requirements apply. NMFS also intends to examine whether or not 
existing monitoring programs should be modified to understand more 
adequately the uses and impacts of this gear or whether some additional 
program is necessary, including potential use of the EFP program. The 
North Carolina Sea Grant paper published by Westcott, 1996, contains 
historical and background data on green-stick gear that NMFS used to 
define and graphically present different ways to configure the gear. 
NMFS would appreciate assistance in locating more recent updates and/or 
publications that could be used to assist with the development of the 
planned brochure describing green-stick gear. NMFS is interested in 
knowing how many fishermen use, or have used, this gear and in what 
configurations that conform with or differ from the current 
definitions. In addition, NMFS is interested in the locale and 
distribution of its use, preferred target species, efficiency over 
other gear-types, amounts and rates of bycatch, and social and economic 
costs and benefits of using the gear, among other things.
    Comment 23: NMFS received comments on the bycatch associated with 
green-stick gear. Those comments include: almost all tuna are hooked in 
the mouth and could be released relatively unharmed, there are no 
turtle interactions, and other bycatch is limited because billfish and 
shark species have difficulty reaching bait that spends so much time in 
the air; and, green-stick gear is a gear that minimizes the 
interactions of billfish with commercial handgear and should be 
promoted. Other comments noted a need to be cautious about potential 
bycatch issues and that NMFS needs to confirm the level of bycatch 
associated with this gear type; NMFS needs to prohibit this gear's use 
in the Gulf of Mexico due to potential bluefin tuna bycatch; the 
description of green-stick gear sounds like longline gear, which could 
mean greater bycatch and there should be no additional gear used in the 
Gulf of Mexico; and, we are opposed to green-stick gear because it 
appears to be a trolled longline and the biggest bycatch of marlin is 
in the yellowfin tuna fishery.
    Response: This rule will not modify the regulations to define 
``green-stick gear'' and thus NMFS does not expect the levels of 
bycatch to change as a result of implementing the No Action 
alternative. NMFS has minimal data available to analyze the bycatch 
issues associated with green-stick gear deployed as a form of handgear 
or as a longline. NMFS expects that trolled green-stick gear, 
configured as a version of rod-and-reel handgear, would have bycatch 
issues similar to that of conventionally configured rod-and-reel gear. 
Data from Pacific green-stick fisheries indicate that increases in 
billfish bycatch are possible although no billfish were reported caught 
on green-stick gear in Atlantic commercial fisheries. Under the current 
regulations, the use of green-stick gear is allowed (as clarified in 
the response to Comment 21 and elsewhere in this document) in the Gulf 
of Mexico although it may not be used to target BFT in this area to 
protect spawning BFT. NMFS continues to be concerned about levels of 
bycatch in HMS fisheries as well as in other fisheries that encounter 
HMS as bycatch. Overall, the Agency has continued to address bycatch 
issues in federally managed fisheries and, consistent with National 
Standard 9, to implement management measures that minimize bycatch. 
Since 1999, NMFS has implemented a number of time/area closures to 
reduce bycatch to the extent practicable and, in the Draft Consolidated 
HMS FMP, examined numerous alternatives to determine if the closures 
were still meeting their original goals. Many of these measures, but 
not all, were designed to reduce bycatch in the pelagic longline fleet. 
In addition, the Draft Consolidated HMS FMP examined alternatives to 
train and certify fishermen in the safe handling, release, and 
disentanglement of protected resources from pelagic and bottom longline 
and gillnet gear. With the addition of new measures in the Final 
Consolidated HMS FMP, NMFS expects to continue minimizing bycatch 
throughout HMS fisheries.
iii. Buoy Gear
    Comment 24: NMFS received several comments supporting alternative 
H5, which would authorize the use of buoy gear only in the commercial 
swordfish handgear fishery. Some of those comments include: buoy gear 
should be for commercial use and handlines for recreational use; more 
recreational fishermen are currently using buoy gear than commercial 
fishermen; buoy gear should be used to target swordfish because it is 
an effective gear; I do not support the use of recreational buoy gear, 
but it should be a commercial subcategory; buoy gear should be allowed, 
but not where it will conflict with recreational vessels and gear; and 
this alternative is trying to establish a commercial fishery. Pelagic 
longline

[[Page 58117]]

vessels could remove their longline gear and set buoy gear in closed 
areas.
    Response: Free-floating buoyed lines are currently in use in many 
areas; however, they are being fished as ``handline gear,'' as defined 
by current HMS regulations. Currently, there are no limits on how many 
handlines a vessel may deploy, as long as each gear has no more than 
two hooks attached. NMFS heard during scoping that the use of this gear 
was expanding. This rule will change the definition of handline gear to 
require that the gear be attached to a vessel and allow free-floating 
handlines, renamed as buoy gear, to be utilized in the swordfish 
handgear fishery only. NMFS took this action, in part, to limit the 
number of individual gears a vessel may possess or deploy when 
targeting swordfish commercially and eliminate the use of the gear in 
all other HMS fisheries, both recreational and commercial. Vessels with 
directed swordfish or swordfish handgear LAPs may utilize this gear 
type to capture swordfish in pelagic longline closed areas as long as 
the longline gear had been removed from the vessel.
    Comment 25: NMFS received several comments opposed to alternative 
H5, which would authorize buoy gear for the commercial swordfish 
handgear fishery and limit vessels to possessing or deploying no more 
than 35 individual buoys, with each gear deployed consisting of one 
buoy supporting a single mainline with no more than two hooks or 
gangions attached. The comments include: buoy gear is needless and 
would be harmful to recreational interests; recreational fishermen are 
concerned about the use of this gear type; buoy gear would increase 
fishing effort on swordfish when it is still overfished; opening up the 
buoy fishery to fill the quota is a mistake; buoy gear is 
indiscriminate and destructive and has no place in a sustainable, 
viable fishery; buoy gear is nothing more than a vertical longline and 
we need reductions in bycatch or bycatch mortality. We are opposed to 
any fishing that allows unattended gear; buoy gear should not be 
allowed in the HMS fisheries for numerous reasons, including: a hazard 
to navigation; an indiscriminate killer like longlines; and deployment 
of the gear with live baits will increase discards and dead discards of 
numerous species; if buoy gear use continues, it is probable that the 
gear will interact with marine mammals in the U.S. EEZ; and it is 
morally incomprehensible that NMFS is going to shut down the 
recreational white marlin fishery and yet allow thousands of hooks to 
be deployed with live baits on buoy gears.
    Response: As discussed in the Consolidated HMS FMP, this gear type 
is currently in use as handline gear and anecdotal information suggests 
that it is being used by both commercial and recreational fishermen to 
target swordfish as well as other species. The rule will re-name the 
gear to buoy gear, limit its use to only those vessels permitted to 
participate in the limited access commercial swordfish handgear 
fishery, and significantly limit the number of individual gears that 
vessels could possess or deploy (from an unrestricted number to a 
maximum of 35). This action will ensure that the fishery, which 
currently occurs mainly in a known swordfish nursery area, does not 
expand in effort uncontrollably and that only a manageable number of 
buoy gears may be deployed by each vessel. Consistent with the current 
definition of ``handline gear,'' each buoy gear will be limited to 
having no more than two hooks or gangions attached. Vessels deploying 
buoy gear may use live or dead baits and may only retain swordfish 
captured on the gear. All tunas, undersized swordfish, sharks, marlins, 
or sailfish captured on buoy gear must be released in a manner that 
maximizes their probability of survival. This gear differs 
significantly from longline gear, which is defined as having three or 
more hooks or gangions attached. The rule will allow vessels deploying 
this gear type to use multiple floatation/gear marking devices, 
including but not limited to, buoys, floats, lights, radar reflectors, 
reflective tape, and high-flyers, to minimize any hazards to 
navigation. Logbook data from 2004 show that 68 percent of swordfish 
captured on commercial handline trips were retained. These same data 
show that over 75 percent of swordfish discarded from these trips were 
released alive. NMFS monitors gears for interactions with marine 
mammals and sea turtles and will continue to monitor buoy gear catch, 
bycatch, and any interactions with protected resources though the HMS 
logbook program.
    Comment 26: If handgear must be attached to the vessel, how do the 
buoy gear requirements affect alternative H5, which authorizes buoy 
gear in the commercial swordfish handgear fishery, and limits vessels 
employing buoy gear to possessing and deploying no more than 35 
individual buoys, with each buoy having no more than two hooks or 
gangions attached?
    Response: Handgear (handline, harpoon, rod and reel, and bandit 
gear) are not all currently required to be attached to a vessel. This 
final rule will modify the definition of handline to require that 
handlines be attached to, or in contact with, a vessel. The buoy gear 
alternatives will not be affected by the handline definition change as 
the selected buoy gear alternative defines buoy gear as a separate gear 
type.
    Comment 27: NMFS received a few comments opposed to alternative H6, 
authorize buoy gear in the commercial swordfish handgear fishery and 
limit vessels to no more than 50 individual buoys, each supporting a 
single mainline with no more than 15 hooks or gangions attached. These 
comments include: we do not support alternative H6; and alternative H6 
is mini-longlining and should be limited to vessels with all three 
permits (Directed or Incidental Swordfish, Atlantic Tunas Longline, and 
Directed or Incidental Shark).
    Response: The Agency is not selecting alternative H6 due, in part, 
to the comments in opposition to allowing that many free floating buoy 
gears. In this action, the Agency is selecting a modification of 
alternative H5 which will authorize buoy gear for the commercial 
swordfish handgear fishery and limit vessels to possessing or deploying 
no more than 35 floatation devices, with each gear consisting of one or 
more floatation devices supporting a single mainline with no more than 
two hooks or gangions attached. This gear differs significantly from 
longline gear, which is defined as having three or more hooks or 
gangions attached. Fishermen deploying buoy gear must possess a 
commercial swordfish handgear or a swordfish directed limited access 
permit.
    Comment 28: NMFS received a number of comments regarding buoy gear 
capturing undersized swordfish, including: 35 individual buoys fished 
at one time is in direct conflict with the HMS FMP objective to reduce 
bycatch and to minimize mortality of juvenile swordfish; this 
alternative will produce dead juvenile swordfish that are hooked and 
not successfully released due to lost gear or gear that cannot be 
checked in a timely manner; what studies show the successful release of 
juvenile swordfish when using 35 individual buoys with two hooks?; buoy 
gear fishermen currently catch approximately 25 - 30 percent juvenile 
swordfish (< 33 inches); circle hooks can reduce post release mortality 
of juvenile swordfish and non-targeted species, they should be 
considered for this gear; and, about 50 percent of fish caught on well 
tended buoy gear can be released.
    Response: In response to public comment, the Agency has modified 
the draft preferred alternative to allow buoy gear fishermen the option 
of deploying

[[Page 58118]]

multiple floatation devices on individual buoy gears. The final rule 
will maintain the maximum limit of 35 floatation devices possessed or 
deployed. Under this rule, fishermen who fish three floatation devices 
per gear will be limited to deploying approximately 11 individual buoy 
gears. Similarly, fishermen using four floatation devices per gear will 
be limited to deploying approximately eight buoy gears. Logbook data 
from 2004 show that 68 percent of swordfish captured on commercial 
handline trips were retained. These same data show that over 75 percent 
of swordfish discarded from these trips were released alive. Given the 
fact that this fishery currently happens in a swordfish nursery area, 
it is likely that the swordfish that are discarded are done so because 
they are undersized. Commenters requested the ability to use several 
floatation devices per gear to allow for the use of a ``bite 
indicator'' float, which will let fishermen know when a fish is 
captured by the gear. This modification could allow fishermen to easily 
identify those gears that have captured fish and may allow fishermen to 
release any undersized swordfish or non-target species more quickly and 
with a greater probability of survival. Additionally, the modification 
to allow multiple floatation devices per gear may reduce the number of 
gears deployed and may minimize lost gear by making the gears more 
buoyant and visible. Although the Agency received public comment 
supporting the use of circle hooks with buoy gear, a circle hook option 
was not specifically included in the alternatives in the Draft 
Consolidated HMS FMP. NMFS is considering the utility of circle hooks 
throughout HMS fisheries and may analyze a circle hook requirement for 
buoy gear in a future rulemaking.
    Comment 29: NMFS received a few comments related to the monitoring 
requirements for buoy gear. Such comments include: can fishermen use 
additional locating devices in addition to the single buoy required 
(e.g., high flier to locate the buoy in bigger seas) to improve 
monitoring?; all four methods of marking buoy gear are needed to avoid 
lost fish and gear; there should definitely be a requirement for 
marking and monitoring; a visual radius or reasonable area a fisherman 
could fish with buoy gear should be defined; buoy gear ``tending'' 
requirements should be defined, like in the shark gillnet fishery, to 
prevent fishermen from tending buoys that belong to others; it would be 
impossible to monitor all 35 buoys that are free floating in rough 
weather conditions; while the handgear operator is retrieving a buoy 
that has hooked a swordfish of sustainable size, the other 34 buoys 
will not be attended; there are no minimum requirements for flags, 
radar reflectors, radio beacons, or strobe lights; and is there any 
information about the loss of buoys?
    Response: In response to public comment, the Agency has modified 
the draft preferred alternative to allow buoy gear fishermen the option 
of deploying multiple floatation devices on individual buoy gears. The 
final rule will maintain the maximum limit of 35 floatation devices 
possessed or deployed. Under the modified alternative, fishermen who 
fish three floatation devices per gear will be limited to deploying 
approximately 11 individual buoy gears. Similarly, fishermen using four 
floatation devices per gear will be limited to deploying approximately 
eight buoy gears. If a gear monitoring device used by a fisherman is 
positively buoyant, it will be included in the 35 floatation device 
vessel limit. Consistent with current regulations, each floatation 
device attached to a buoy gear must be marked with either the vessel's 
name, registration number, or permit number. At this time, NMFS is not 
requiring any specific gear tending requirements for vessels deploying 
buoy gear; however, the Agency recommends that fishermen remain in the 
general area where they have set their gear and monitor each gear as 
closely as possible. NMFS realizes that different vessels and crews 
will have varying abilities to monitor gear and that weather and sea 
condition may also impact their ability to monitor gear closely. The 
Agency cautions fishermen to limit the number of gears they deploy to a 
reasonable number that they can realistically monitor and retrieve 
safely. At this time, the Agency does not possess any data regarding 
gear loss in this fishery. The Agency may conduct additional rulemaking 
in the future, if additional data indicates that gear tending 
requirements or other bycatch reduction measures are needed.
    Comment 30: NMFS received a number of comments regarding the 
definition of ``buoy gear,'' including: consider modifying the 
definition of buoy gear because one buoy and all the line fished 
vertically will make it difficult to keep visual contact with the gear; 
without some way of knowing when a small fish is hooked, it may be 
several hours before the gear is retrieved; consider allowing a maximum 
of 20 feet of horizontal line on the surface for the purpose of 
identifying and monitoring buoy gear allowing space for ``bite 
indicator'' float and an identification buoy/hi-flier; additional 
equipment may be necessary to prevent large swordfish from sounding; 
allow additional gear at each buoy for retrieval and to determine if a 
fish is on the line; why is there no length or distance specified 
between buoys for the commercial buoy gear?; do the regulations 
stipulate how far apart the buoy gear can be spaced?; are buoy gears 
allowed to be attached to a hydraulic drum when being used 
commercially?; circle hooks, VMS, light sticks, live bait, and Careful 
Handling/Release training and certification should be mandatory; could 
you require the use of Global Positioning Systems (GPS) on the buoy 
gear?; there should be a prohibition on using live bait; an electronic 
monitoring system must be required for each buoy; there is no data to 
justify limitations on the number of buoys and/or hooks at this time; 
and there is no criteria for what would constitute an acceptable buoy 
for this type of gear.
    Response: As discussed above in the response to Comments 27, 28, 
and 29, NMFS has modified the draft preferred alternative in response 
to public comment and included a definition of ``floatation device.'' 
The final rule will allow fishermen deploying buoy gear to attach 
multiple floatation devices to each buoy gear, including ``bite 
indicator floats,'' however the rule will maintain the limit of 35 
floatation devices possessed or deployed. A floatation device is 
defined as any positively buoyant object rigged to be attached to a 
fishing gear. Buoy gear must be released and retrieved by hand. If gear 
monitoring devices used by fishermen are positively buoyant and rigged 
to be attached to a fishing gear, they will be included in the 35 
floatation device vessel limit and will need to be marked as per the 
gear marking regulations. Additionally, if more than one floatation 
device is used, no hook or gangion may be attached to the mainline or a 
floatation device on the horizontal portion of the gear. At this time, 
NMFS is not specifying any maximum or minimum length of horizontal line 
at the surface. However, to limit any hazard to navigation and 
potential gear loss by ship strike, NMFS recommends that fishermen set 
only the amount of gear that is needed at the surface. Similarly, NMFS 
is not specifying a minimum or maximum distance between deployed buoy 
gears. NMFS urges fishermen to be responsible in their fishing 
activities and to only fish gear over a distance that they can 
realistically monitor. Because of the limitations on the number of buoy 
gears that can be deployed at one time, NMFS

[[Page 58119]]

is not requiring GPS or electronic monitoring equipment at this time. 
Given the low bycatch rates and high probability of survival per 
logbook data on handline, NMFS is not implementing requirements 
regarding circle hooks, light sticks, live bait, or Careful Handling/
Release training and certification for buoy gear fishermen at this 
time. As more information and data become available regarding the use 
of buoy gear, NMFS may investigate some of these options for the buoy 
gear fishery in future rulemakings.
    Comment 31: NMFS received a few comments regarding permit 
requirements for using buoy gear and comments supporting a limit on the 
number of vessels using buoy gear. These comments include: buoy gear 
should be limited to current permit holders only and no increase in its 
use should be allowed in future permit considerations; what kind of 
permit do you need for buoy gear?; buoy gear users should have the 
three permits that PLL needs; approximately 10 boats have used buoy 
gear in the past, however, it is now likely that only about three 
vessels use this gear type; how many participants are actively using 
buoy gear?; and, how many swordfish permits are there? Effort is going 
to increase.
    Response: The final rule will only authorize buoy gear in the 
commercial swordfish handgear fishery. Vessels deploying buoy gear must 
have a commercial swordfish handgear limited access permit or a 
swordfish directed limited access permit. As of February 2006, there 
were 88 commercial swordfish handgear permits and 191 directed 
swordfish permits. In 2004, seven vessels reported using handline gear 
in the HMS logbook. The logbook does not differentiate between trolled 
handlines, free-floating handlines, or attached handlines; however, 
some of those seven vessels likely fished free-floating handlines (buoy 
gear) and targeted swordfish. Based on historic participation and new 
restrictions, NMFS does not anticipate large increases in participation 
in this sector of the swordfish fishery.
    Comment 32: NMFS received two comments inquiring about 35 buoys as 
the appropriate limit for buoy gear. These comments are: what is the 
basis for selecting 35 buoys as the limit?; and, how did the Agency 
select 35 buoys?
    Response: NMFS selected the 35 floatation limit based on support 
from public comment and because the Agency identified this number as 
the upper limit of unattended buoy gear that a commercial fisherman 
could monitor and prevent from being lost. The 35 floatation limit 
would also allow most vessels using this gear to possess spare gear 
onboard. Furthermore, as described in the response to Comments 29 and 
30, NMFS modified the definition to allow for multiple floatation 
devices per individual buoy gear. This upper limit should provide 
flexibility and allow for the use of ``bite indicator'' floats by most 
fishermen using this gear.
    Comment 33: NMFS received a number of comments on the proposed 
limit of 35 buoys, including: tending 35 buoys will be inefficient, 
taking 2 - 2.5 hours to set 35 buoys and 3 - 3.5 hours to check each 
one; no more than 12 buoys should be allowed when operating alone; with 
two crew members, up to 20 buoys could be fished; can the number of 
permissible buoys be linked to people onboard the vessel; participants 
currently cannot fish 35 buoys but may be able to in the future; 35 
buoys with two hooks apiece is almost like hauling a 30 mile longline 
with the current; define and allow this gear type for swordfish 
commercial harvest, but limit the number of buoys to a more manageable 
number for protection of juvenile swordfish, allowing no more than 10 
buoys makes the gear maintainable and produces a high quality product 
with minimal impact on juvenile fish; 35 buoys are unmanageable and are 
tended exactly like a short pelagic longline with overnight soak time 
violating the intent of the area closure; 10 to 12 buoys with a maximum 
of two hooks is the most that should be allowed, a prudent skipper and 
crew could not manage more than 10 buoys at a time and that would be 
under ideal sea conditions; The regulations should allow a maximum of 
10 to 12 buoys, otherwise bycatch cannot be prevented; 35 buoys with 
two hooks each is not considered ``handgear''; and, 35 buoys are far 
too many and may allow bigger vessels from the NED to move in and use 
this gear in closed areas, this shift could create tension between user 
groups and, displace the smaller vessels that pioneered this type of 
gear. This already happened in the FEC area with a boat using 20 - 25 
radio buoys; 35 buoys are unmanageable; more than 12 buoys are 
unmanageable. The definition of this gear should be by the drop line, 
not the number of buoys; pelagic longline fishermen would need more 
than 35 buoys to make a go of the buoy fishery; and there is no data 
that shows a limit on buoy gear is needed.
    Response: In response to public comment, the Agency is selecting a 
modification of alternative H5 that will authorize buoy gear for the 
commercial swordfish handgear fishery and limit vessels to possessing 
or deploying no more than 35 floatation devices, with each gear 
consisting of one or more floatation devices supporting a single 
mainline with no more than two hooks or gangions attached. As discussed 
above in the response to Comments 27 - 30, the modified alternative 
will allow fishermen deploying buoy gear to attach multiple floatation 
devices to each buoy gear, including ``bite indicator'' floats, however 
the alternative maintains the limit of 35 floatation devices possessed 
or deployed. This rule gives greater flexibility in the gear 
configuration by allowing fishermen to alter the gear depending on 
weather or sea conditions, crew size, and characteristics of different 
fishing vessels. If gear monitoring devices used by fishermen are 
positively buoyant and rigged to be attached to a fishing gear, they 
will be included in the 35 floatation device vessel limit and will need 
to be marked in accordance with the gear marking regulations. 
Additionally, if more than one floatation device is used, no hook or 
gangion may be attached to the mainline or a floatation device on the 
horizontal portion of the gear. Under the final rule, fishermen who 
fish three floatation devices per gear will be limited to deploying 
approximately 11 individual buoy gears. Similarly, fishermen using four 
floatation devices per gear will be limited to deploying approximately 
eight individual buoy gears. NMFS realizes that different sized vessels 
and crews will have varying abilities to monitor gear and that weather 
and sea conditions may also affect their ability to monitor gear 
closely. The Agency cautions fishermen to limit the number of buoy 
gears they deploy to a reasonable number that can be realistically 
monitored and retrieved safely. NMFS realizes that the limits on buoy 
gear will likely reduce the chances that large distant water vessels 
could make profitable trips with buoy gear. During the scoping process, 
the Agency received comments indicating that the swordfish handgear 
fishery does not appear to be widespread and appears to operate off the 
East Coast of Florida. The final rule was developed in an attempt to 
maintain positive economic benefits for the commercial sector currently 
utilizing the gear type.
    Comment 34: NMFS received a number of comments opposed to 
authorizing buoy gear and the use of buoy gear in pelagic longline 
closed areas. Those comments include: the proposed buoy gear would 
operate in a manner similar to longline gear. Do not reopen the 
longline fishery to further commercial exploitation in our waters; buoy 
gear is proposed for use in areas

[[Page 58120]]

currently closed to longline gear; this commercial gear violates the 
intent and purpose of closed areas and the basic reason these areas 
were originally created; how do these new proposed gears mesh with the 
current closed areas?; longline fishermen are by far the most 
indiscriminate killers of the very species that recreational fishermen 
and conservation groups try to protect. Yet, they are being allowed 
back into closed areas and are allowed to continue using longline 
tackle that has been renamed; these areas were closed to PLL and 
allowing buoy gear in will eliminate any benefits that the closures 
had; and, all the issues for PLL seem to be there for buoy gear. 
Bycatch issues are still there.
    Response: The final rule will re-name free-floating handline gear 
as ``buoy gear,'' limit vessels deploying the gear to possessing or 
deploying no more than 35 floatation devices, and will limit its use to 
commercial swordfish handgear fishermen. Therefore, this rule 
represents a limitation on the handgear fishery over the status quo, 
and is not modifying any current restrictions on longline fishing. This 
gear has been utilized with no gear limits by both recreational and 
commercial fishermen in areas closed to pelagic longline fishing in the 
past and will be prohibited for use by recreational fishermen and all 
commercial fishermen not possessing a swordfish handgear or swordfish 
directed limited access permit. The continued use of this gear by a 
limited number of fishermen would not violate the intent and purpose of 
the East Florida Coast closed area (or other PLL closed areas), which 
was to minimize bycatch in the PLL fishery while maximizing the 
retention of target species. Current data regarding the existing 
handline fishery indicates that bycatch rates with this gear are low 
with no marlin or sea turtles being reported caught from 2000 to 2004, 
and only one sailfish, which was released alive.
    Comment 35: NMFS received several comments expressing concern over 
the authorization of buoy gear in the East Florida Coast PLL closed 
area, including: pelagic longline vessels once contributed to a vast 
amount of dead discards of juvenile swordfish in the East Florida Coast 
area and buoy gear will have the same effect; the East Florida Coast 
closed area is a vital nursery area that needs to be protected; there 
should be no free-floating gear allowed in the Florida Straits; buoy 
gear is like longline gear, and NMFS should ban longlining for 
swordfish in the Florida Straits; to fish buoy gear in the Straits of 
Florida the handgear operator must ensure 100 percent release of 
juvenile swordfish; and, a limit might be necessary off Florida, but 
there might be possibilities in other areas where limits are not 
needed.
    Response: As discussed in the response to Comment 34 above, the 
final rule will restrict the number of unattached handlines or buoy 
gear that may be deployed and will limit the number of permit holders 
authorized to utilize the gear type relative to the status quo. This 
gear is currently authorized for use with no limitations on numbers of 
buoy gears deployed by both recreational and commercial fishermen in 
the East Florida Coast closed area. The final rule will prohibit all 
recreational fishermen and commercial fishermen not possessing a 
swordfish handgear or swordfish directed limited access permit from 
utilizing the gear type. According to 2004 logbook data, 64 commercial 
handline trips were reported with 404 swordfish reported caught. Of 
those 404 swordfish captured, 67.8 percent (274 fish) were retained, 
24.3 percent (98 fish) were released alive, and 7.9 percent (32 fish) 
were discarded dead.
    Comment 36: NMFS received several comments concerned about allowing 
buoy gear to operate in the Gulf of Mexico. Those comments include: 
buoy gear should not be allowed in the DeSoto closures area, nor should 
it be allowed in the Southern Canyon area. There should be no free 
floating gear because it could get entangled with oil rigs; buoy gear 
may need greater restrictions in the Gulf. I am worried about excessive 
gears and bycatch with the currents and weather; concerns on how buoy 
gear will be deployed in the Gulf of Mexico with free floating drilling 
barges and their multiple thrusters, may lead to pollution issues; 
future generations will suffer and only one group will benefit from 
allowing 30 - 50 hook sets with no radar reflectors into the DeSoto 
area south of Destin. After the buoy fishermen have moved on, there 
will never be another blue marlin, swordfish, tuna, or shark in the 
Gulf of Mexico; the De Soto Canyon pelagic longline closure has been 
successful over the past five years with more tuna, dolphin, swordfish, 
and wahoo; and buoy gear should be banned completely from the Gulf of 
Mexico.
    Response: During the scoping process, the Agency received comments 
indicating that the swordfish handgear fishery does not appear to be 
widespread and appears to operate only off the East Coast of Florida, 
not in the Gulf of Mexico. As discussed under Comment 34, the final 
rule will restrict the number of unattached handlines or buoy gear that 
may be deployed and the number of permit holders authorized to utilize 
the gear type relative to the status quo. In addition, the requirement 
to affix gear monitoring equipment is intended to reduce the likelihood 
of gear loss. Additionally, under the final rule, buoy gear will only 
be authorized to harvest swordfish, no other HMS species may be 
targeted with buoy gear. All other HMS species captured must be 
released in a manner that maximizes their probability of survival. NMFS 
will monitor bycatch and gear loss, and may make adjustments, as 
needed, in the future. While the owners and operators of buoy gear 
vessels are not required to attend the safe handling and release 
workshops that are mandatory for PLL, BLL, and gillnet fishermen, these 
owners and operators may use the same release techniques and equipment 
and are encouraged to attend. If bycatch rates or mortality increase in 
the buoy gear fishery, NMFS may consider mandatory workshops for this 
fishery. Similarly, if the fishery expands into the Gulf of Mexico, 
NMFS may consider additional restrictions to prevent problems with free 
floating drilling barges or to alleviate other problems not anticipated 
at this time.
    Comment 37: NMFS should consider geographic limitations for buoy 
gear to minimize negative gear conflicts in a future action.
    Response: During the scoping process, the Agency received comments 
indicating that the existing swordfish handgear fishery does not appear 
to be widespread and appears to operate only off the East Coast of 
Florida. NMFS does not expect that this final action, which places 
limits on that existing fishery, would change the location of the 
fishery. However, if circumstances warrant changes, the Agency may 
consider making adjustments to minimize negative impacts in the future, 
if necessary.
    Comment 38: There is no penalty for clipping the buoy gear together 
to create a longline.
    Response: Under the current regulations, lines with three hooks or 
more are longlines. Vessels clipping buoy gears together and having 
more than two hooks on any combination of lines would need the 
appropriate permits allowing the operators to harvest HMS with longline 
gear. Additionally, these vessels could only set linked buoy gear in 
areas not closed to longline fishing. The final rule prohibits linking 
buoy gear together.
    Comment 39: Buoy gear exponentially increases the footprint of the 
vessel because it is not attached to the vessel. It will become 
entangled in offshore oil platforms and dynamic positioning vessels, 
and other oilfield related

[[Page 58121]]

facilities and will result in more stand-off regulations for the 
recreational and commercial fisheries from these structures, not to 
mention the additional expense to the oil companies of removing this 
gear and repairing damage caused by it.
    Response: As discussed under Comment 34, the final rule will 
restrict the number of unattached handlines or buoy gear that may be 
deployed and the number of permit holders authorized to utilize the 
gear type relative to the status quo. In addition, the requirement to 
affix gear monitoring equipment is intended to reduce the likelihood of 
gear loss.
iv. Secondary Gear
    Comment 40: NMFS received comments on the types of secondary gears 
(also known as cockpit gears) that would be authorized under the 
proposed Consolidated HMS regulations. Those comments include: what are 
the primary cockpit gears included for authorization?; will the 
regulations have a list of acceptable cockpit gears because that list 
is going to be extremely long to cover all the methods currently used?; 
people are going to need to provide NMFS with a list of gears currently 
used to be sure they are included; do not allow dart harpoons and other 
secondary gears to be used as primary authorized gears; mechanical 
harpoons should not be used as secondary gear; and, if there is choice 
between a gaff, flying gaff, and cockpit harpoon, I am going for a 
cockpit harpoon every time to kill fish and protect myself.
    Response: The final rule does not list specific acceptable 
secondary gear; rather, secondary gears will be authorized for 
assisting in subduing an HMS already brought to the vessel with an 
authorized primary gear. Primary authorized gears are listed in the 
current HMS regulations at 50 CFR 635.21(e). While examples of 
secondary gears are listed in the regulations, the list is not all 
inclusive in order to provide fishermen the maximum flexibility in 
using the secondary gear to gain control of an animal that will be 
brought onboard the vessel while also maintaining safe conditions on 
the vessel. This action will clarify the regulations to state that 
secondary gears will not be allowed to capture undersized or free-
swimming HMS, but only to gain control of legal-sized HMS brought to 
the vessel with an authorized primary gear with the intent of retaining 
the HMS. This measure will acknowledge and account for the current HMS 
regulations at 50 CFR 635.21(a), which state that an Atlantic HMS 
harvested from its management unit that is not retained must be 
released in a manner that will ensure maximum probability of survival, 
but without removing the fish from the water.
    Comment 41: NMFS received comments supporting the use of secondary 
gears. Those comments include: I support alternative H7, clarify the 
allowance of handheld cockpit gears used at boat side for subduing HMS 
captured on authorized gears; hand darts need to be authorized as 
secondary gear so that the people in Florida's swordfish recreational 
fishery are not fishing illegally; and this action is necessary to 
avoid enforcement conflicts over what gear is legal for subduing HMS.
    Response: The final rule authorizes the use of hand-held secondary 
gears to aid anglers in subduing large HMS captured by authorized 
primary gear types to reduce the loss of fish at the side of the boat, 
increase safety when subduing large HMS, minimize enforcement problems, 
and respond to requests from fishery participants to clarify the 
regulations. This action does not specify acceptable secondary gears, 
rather it clarifies the HMS regulations to state that secondary gear 
may be used to aid in the landing or subduing of HMS after they are 
brought to the vessel using a primary authorized gear type only. 
Secondary gears may also reduce the loss of fish at boat side, 
increasing retention rates. Primary authorized gears are listed in the 
current HMS regulations at 50 CFR 635.21(e).
D. Regulatory Housekeeping Measures
i. Definitions of Pelagic and Bottom Longline
    Comment 1: NMFS received comments in support of the no-action 
alternative to maintain the current PLL and BLL gear definitions, and a 
comment in support of the two alternatives that were preferred in Draft 
Consolidated HMS FMP. These included: I support Alternative I1(a) -- no 
action. The other alternatives tend to micromanage directed shark 
fishermen out of the closed areas, in particular the NC BLL time/area 
closure, by reducing profits and causing unnecessary economic impacts; 
if fishermen can tell the difference between BLL and PLL gears, they 
should be able to teach NMFS enforcement agents the difference; it is 
still clear that there is a problem with the BLL and PLL definitions. 
NMFS should reexamine this issue with some fishing industry assistance; 
and, NMFS is making a big deal and creating potential additional 
economic impacts for enforcement's convenience. It is not an 
enforcement necessity; and PLL and BLL gears should be differentiated 
by the number of floats (alternative I1(b)), as well as the types of 
species landed (alternative I1(c)).
    Response: NMFS believes that the existing regulations defining 
pelagic and bottom longline gear at Sec.  635.21(c) and (d), 
respectively, are generally sufficient. However, there could be 
situations where it is difficult for law enforcement to differentiate 
between the two gear types while enforcing the closed areas or VMS 
regulations. Difficulties could arise, for example, in determining 
whether the weights and/or anchors are capable of maintaining contact 
between the mainline and the ocean bottom in the case of bottom 
longlines, or whether the floats are capable of supporting the mainline 
in the case of pelagic longlines. These difficulties could result in 
lengthier boardings at sea by law enforcement, temporary curtailment of 
fishing activities, and potential legal proceedings. For these reasons, 
NMFS sought to reexamine the current PLL and BLL definitions in this 
amendment to ascertain whether improvements were warranted. Based upon 
public comment and consultations with law enforcement, NMFS found that 
the current PLL and BLL definitions could be strengthened by 
establishing limits on the types of species that could be possessed 
when fishing in HMS closed areas with these gears. However, in order to 
maintain operational flexibility for the HMS longline fleet, and in 
recognition of the impracticality of defining and limiting the number 
of ``fishing floats'' possessed or deployed, gear-based alternative 
I1(b) is no longer preferred. The overall objective of this issue, 
preserving the integrity of the HMS time/area closures, can effectively 
be achieved by implementing requirements on the species composition of 
catch. This methodology addresses the crux of the issue, which is to 
discourage catches of pelagic species in PLL closed areas (and vice 
versa), without the adverse economic impacts associated with additional 
gear restrictions. This method is expected to accommodate the majority 
of commercial fishing operations, yet still provide a quantifiable 
means to differentiate between PLL and BLL vessels. As a result, the 
ecological benefits associated with HMS closed areas are expected to 
remain intact, including reductions in discards of swordfish, bluefin 
tuna, dusky sharks, sandbar sharks, other HMS, other

[[Page 58122]]

finfish, and protected species. By selecting a method that relies upon 
the species composition of the catch, NMFS anticipates that HMS 
longline vessel operators will be prudent when fishing in the HMS 
closed areas and catch predominantly pelagic species in BLL closed 
areas, or demersal species in PLL closed areas. However, the 
establishment of quantifiable gear-based criteria to differentiate 
between PLL and BLL gear could still potentially offer an effective 
method to further eliminate ambiguities between the two gear types. The 
Agency intends to continue to assess the need for, and potential 
effectiveness of, gear-based criteria. If needed, such criteria could 
be developed in consultation with the fishing industry to further 
improve the monitoring of, and compliance with, HMS closed areas.
    Comment 2: NMFS received several comments indicating that HMS 
longline vessel operators need to maintain their operational 
flexibility. These comments include: Longline vessels need to maintain 
their ability to change between PLL and BLL gear in order to ensure 
versatility. For economic survival and efficiency, vessels often 
conduct both PLL and BLL sets on a single trip. This is especially true 
for PLL vessels that fish with BLL gear during rough weather days on a 
PLL trip. There will be an economic loss if NMFS restricts this 
flexibility; definitions for PLL and BLL gear should be developed to 
facilitate identification by law enforcement, while not precluding 
fishermen from choosing between gear types; and in order to allow 
flexibility to conduct both PLL and BLL sets, the final regulations may 
need to specify differences between active gear and gear onboard the 
boat and not in use, because there have been some enforcement errors.
    Response: NMFS recognizes that HMS longline vessels need to 
maintain their ability to change between PLL and BLL gear in order to 
ensure versatility. The reason for addressing the gear definition issue 
in this amendment was not to impose additional economic costs on 
longline vessels, but rather to preserve the conservation benefits 
associated with the HMS time/area closures. The HMS longline closed 
areas were implemented to protect a variety of HMS and other protected 
species. This protection could be compromised if HMS longline vessels 
are catching large amounts of pelagic species in the PLL closed areas, 
while under the guise of BLL fishing, and vice-versa. The critical 
factor in maintaining the integrity of the HMS time/area closures is, 
therefore, to ensure that the proper species are hooked. This could 
potentially be accomplished in a variety of ways. NMFS believes that 
establishing a limit on the species composition of the catch when 
fishing in the HMS closed areas is an efficient method to discourage 
illegal fishing activities in these areas, without imposing additional 
gear requirements that could restrict operational flexibility. As long 
as a vessel is in compliance with the current PLL or BLL definitions 
when fishing in the HMS closed areas, the operator will retain the 
flexibility to choose how to comply with the catch limits specified in 
this final rule. More importantly, however, these catch limits must be 
adhered to if any portion of a trip is in an HMS closed area. NMFS 
believes that it is not unreasonable, or unduly burdensome, for HMS 
longline vessels to comply with the intent of the HMS closed areas and 
to avoid pelagic or demersal species, especially when legally fishing 
in these areas with BLL or PLL gear, respectively. Because NMFS is 
implementing a species-based, rather than a gear-based, alternative to 
differentiate between pelagic and bottom longlines, a gear stowage 
provision is not necessary at this time.
    Comment 3: Comments were received indicating that vessel monitoring 
systems (VMS) could be used to help differentiate between PLL and BLL 
vessels. These comments included: Since VMS are already required for 
the closed areas, NMFS should establish a declaration system allowing 
the VMS monitors to know what gear type is being utilized and why. Law 
enforcement and/or observers could verify compliance, and impose 
penalties for non-compliance; and, it has been suggested that vessels 
``call-in'' and declare their intentions prior to engaging in fishing 
in a closed area. This would be an unnecessary burden, but it is 
feasible.
    Response: This comment was also raised by both the public and the 
NMFS Office of Law Enforcement during scoping hearings, and was 
considered during the development of alternatives for the DEIS. 
However, NMFS decided against including an alternative with a VMS 
declaration because it would not alleviate the need for a quantifiable 
method for enforcement to use in order to differentiate between PLL and 
BLL gear. For example, while a vessel operator could declare to be 
fishing with PLL or BLL gear, enforcement officers would still need to 
verify compliance with the closed areas either at the dock or at sea. 
Without a quantifiable method, enforcement officers could decide that a 
BLL vessel that has a few buoys onboard and that declared itself a BLL 
vessel still meets the definition of a PLL vessel. With a quantifiable 
method, the enforcement officers would be less likely to make that 
determination. Nevertheless, there may be a potential benefit to a VMS 
declaration system, and NMFS will continue to assess the need for such 
a system.
    Comment 4: Comments opposed to alternative I1(b), defining BLL or 
PLL gear based on the number of floats onboard, included: We are 
strongly opposed to alternative I1(b); defining BLL and PLL gear by the 
number of floats will not work; and, alternative I1(b) would impose an 
unnecessary additional economic and logistic burden on already over-
regulated fisheries.
    Response: Although the analysis in the Draft Consolidated HMS FMP 
indicated that relatively few HMS longline vessels would be affected by 
the float requirement in non-selected alternative I1(b), the 
alternative is not being implemented in the final rule. As described in 
Comment 2 above, several commenters stated that a float requirement 
would diminish the flexibility of vessel operators to participate in 
different fishing activities, depending upon the circumstances. Also, 
consultations with NMFS Office of Law Enforcement indicated that 
defining ``fishing floats'' and limiting the number that could be 
possessed or deployed would not be practical. In light of these 
concerns, NMFS believes that the overall objective of this issue, 
preserving the integrity of the HMS time/area closures, can effectively 
be achieved by implementing a method that relies upon the species 
composition of catch and the existing PLL and BLL definition. By not 
implementing a restriction on the allowable number of floats, potential 
adverse economic impacts associated with additional gear restriction 
should be mitigated
    Comment 5: NMFS received many comments regarding the float 
requirement in alternative I1(b), and suggestions for developing other 
gear-based methods to better differentiate between PLL and BLL. These 
comments include: There is some confusion in preferred alternative 
I1(b) between the terminology that the industry is accustomed to using 
versus what NMFS is using; how do the proposed regulations define PLL 
and BLL gear and floats?; floats are used for recovery and monitoring 
sections of the gear. The types of mainline and anchor are related to 
where the gear is fishing in the water column. The mainline and anchors 
onboard a vessel would be better indicators of what type of longline 
gear is onboard a vessel; if NMFS proceeds

[[Page 58123]]

with alternative I1(b), it is important to make sure that an anchor 
ball is accounted for in the float enumeration; there is no critical 
need for BLL vessels to possess ``bullet'' type floats. Such floats can 
be replaced with polyballs on BLL vessels at minimum costs. On the 
contrary, PLL vessels must carry large quantities of both polyball and 
``bullet'' floats, this difference would enable enforcement officers to 
differentiate between PLL and BLL vessels while underway and/or 
fishing. NMFS could allow PLL vessels to retain the necessary 
flexibility if they required all ``bullet'' type floats to be stowed 
below deck and/or completely covered before engaging in BLL fishing in 
a PLL closed area. It would be awkward but it is feasible; NMFS 
enforcement should not require an adjustment to the definition. A PLL 
vessel is easy to spot by the amount of ``bullet'' floats and balls. 
While deployed, the gear is easy to determine by the consecutive 
``bullet'' floats along the line. When a PLL vessel is engaged in BLL 
fishing, there is no consecutive string of ``bullet'' floats and a BLL 
vessel does not require hundreds of bullet floats; and, on the Grand 
Banks, fishermen use polyballs, bullet floats and radio buoys, but I do 
not know the exact number of each; Radio buoys are probably used more 
with PLL than with BLL gear.
    Response: NMFS appreciates these comments. The proposed regulations 
did not contain new definitions for PLL and BLL gear, and did not 
define ``fishing floats.'' Rather, comments were specifically requested 
on potential definitions for ``fishing floats.'' While differences 
between PLL and BLL gear might be readily apparent, these comments 
highlight the difficulties associated with developing definitions that 
are quantifiable, understandable, practical, enforceable, and can 
accommodate a variety of different fishing techniques. These 
limitations greatly restrict the ability to develop practical, 
quantifiable definitions for PLL and BLL gear that are improvements 
over the existing definitions. For these reasons, and for those 
discussed in the response to Comment 1 above, NMFS believes that the 
current PLL and BLL definitions do not require significant 
modification, but can be strengthened by establishing limits on the 
types of species that can be possessed when fishing in HMS closed 
areas. In order to maintain operational flexibility for the HMS 
longline fleet, and in recognition of the impracticality of defining 
and limiting the number of ``fishing floats'' possessed or deployed, 
the allowable number of floats is not limited. Nevertheless, the 
establishment of quantifiable gear-based criteria to differentiate 
between PLL and BLL gear using the recommendations contained in this 
comment could help to eliminate ambiguity between gear types in the 
future, if necessary. NMFS will continue to assess the need for, and 
potential effectiveness of, gear-based criteria. If needed, such 
criteria could be developed in consultation with the fishing industry 
to further improve the monitoring of, and compliance with, HMS closed 
areas.
    Comment 6: Comments regarding the numbers of floats specified in 
alternative I1(b) included: The number of floats proposed for the PLL/
BLL designation in alternative I1(b) (i.e., 71 or more floats for PLL) 
is appropriate, but fishermen could run into trouble with enforcement 
during test sets. These are sets fishermen use to determine what fish, 
if any, are in the area. Test sets are usually shorter and have fewer 
floats; NMFS is proposing too many floats to differentiate between BLL 
and PLL gear in alternative I1(b). BLL gear would have far fewer 
floats. Most BLL may have two to four floats with maybe a 12 to 15 
maximum; and, a fisherman may do a short PLL set that would have less 
than 71 floats when fishing in closed areas and might be able to catch 
demersal fish, like sandbar sharks, on PLL gear.
    Response: Based upon an analysis of the HMS logbook in the Draft 
Consolidated HMS FMP, NMFS believes that the number of floats specified 
in the proposed rule to differentiate between PLL and BLL gear was 
appropriate. The analysis indicated that at least 90 percent of all 
reported BLL sets in 2002 and 2003 possessed fewer than 70 floats, and 
approximately 95 percent of all reported PLL sets in 2002 and 2003 
possessed more than 70 floats. However, public comment indicated that, 
in some instances, the float requirement could adversely affect 
operational flexibility. For this reason, and the others discussed in 
the responses to Comments 4 and 5 above, the allowable number of floats 
is not being limited. NMFS believes that the concern expressed in this 
comment regarding catching demersal fish on PLL gear in BLL closed 
areas will be adequately addressed by the final management measures, 
that limit the amount of species (either pelagic or demersal, as 
appropriate) that may be possessed or landed from HMS closed areas.
    Comment 7: Alternative I1(b) may assist in defining ``greenstick 
gear'' by specifying the numbers of floats for pelagic and bottom 
longlines.
    Response: The issues involved in defining ``greenstick gear'' are 
addressed in the Authorized Fishing Gear section. NMFS is not 
implementing management measures that would specify the allowable 
number of floats for PLL and BLL gear. If needed in the future, NMFS 
may consider distinguishing between greenstick and longline gear based 
upon the allowable number of floats.
    Comment 8: NMFS received comments in opposition to alternative 
I1(c), including: I vehemently oppose preferred alternative I1(c) which 
differentiates between BLL and PLL gear based upon the species 
composition of the catch. There is no difference between PLL and BLL 
gear. BLL gear takes so long to set and retrieve that it can kill 
pelagic species while the hooks are being retrieved. Enforcement will 
be ineffective on this alternative. What is a vessel considered to be, 
PLL or BLL, after it has just switched from one mode to the other prior 
to harvest in the second mode?; and, I am opposed to this alternative 
because it will limit the abilities of the directed shark fishery.
    Response: There is a difference between PLL and BLL gear. PLL gear 
fishes for pelagic species in the water column, while BLL gear fishes 
for demersal species and is in contact with the seafloor. Although the 
gears can each catch both types of species, the catch rates of demersal 
and pelagic species are very different between the gears. This fact is 
evident in the Coastal logbook where, on average, from 2000 [dash] 
2004, over 95 percent of the reported landings were demersal 
``indicator'' species, as measured relative to the total amount of 
``indicator'' species. Similarly, in the PLL logbook, from 2000 [dash] 
2004, on average, over 95 percent of the reported landings were pelagic 
``indicator'' species, as measured relative to the total amount of 
``indicator'' species. For this reason, a 5-percent threshold of 
pelagic and demersal ``indicator'' species will be established for BLL 
and PLL gear, respectively, on trips fishing in HMS time/area closures. 
NMFS recognizes that a small percentage of species caught on BLL and 
PLL gear will be the unavoidable bycatch of pelagic and demersal 
species, respectively. Also, the logbook data indicate that the 5-
percent threshold would have been exceeded on a fishery-wide basis in 
2004, whereas both fisheries (PLL and BLL) would have been well below 
the threshold from 2000 [dash] 2003. If necessary, both the 5-percent 
threshold and the list of indicator species can be modified in the 
future based upon a review of current and historic landings and the 
effectiveness of the regulation.

[[Page 58124]]

Presently, the Agency does not expect that the final rule implementing 
a 5-percent threshold will significantly limit the abilities of either 
fishery. NMFS further believes that it is not unreasonable, or unduly 
burdensome, for HMS longline vessels to comply with the intent of the 
HMS closed areas and avoid pelagic or demersal species, especially when 
legally fishing in these areas with BLL or PLL gear, respectively. If 
any portion of an HMS longline trip occurs within a BLL or PLL closed 
area, then that vessel would be required to adhere to the 5-percent 
threshold for pelagic or demersal species, respectively. This 
management measure is readily enforceable, either through dockside 
verification of landings or by at-sea boardings. If difficulties arise 
in determining whether a vessel is fishing with PLL or BLL gear in a 
closed area using the existing definitions, the species composition of 
catch methodology will provide a quantifiable method to verify fishing 
technique.
    Comment 9: Comments specifically referencing the 5-percent species 
composition threshold for differentiating between gears include: In 
order to differentiate between PLL and BLL gear, NMFS should prevent 
fishermen with BLL gear from landing any pelagic species in preferred 
alternative I1(c). This prohibition would eliminate the profit 
incentive and motive for violating closed areas and manipulating set 
time, depth at which gear is set, and the number of buoys; I am opposed 
to the 5-percent tolerance for species because there is too much 
variability in the catch. This ratio could also be problematic when 
combined with the alternative addressing dealers and vessels buying and 
selling fish in excess of retention limits, because there is no room 
for error and no way to dispose of catch that is useful; NMFS must make 
sure that the species composition lists in preferred alternative I1(c) 
are complete enough to allow for gear definitions based on species; 
and, tilefish should be added to the list of demersal indicator 
species.
    Response: NMFS appreciates these comments. As discussed above in 
the response to Comment 8, both types of gear can occasionally catch 
both types of ``indicator'' species, pelagic and demersal. The 
establishment of a zero-tolerance for pelagic ``indicator'' species 
when fishing in PLL closed areas with BLL gear could create a situation 
where regulatory discards occur, due to the unavoidable bycatch of 
pelagic species. The final rule strikes an appropriate balance by 
establishing a 5-percent tolerance, which should discourage directed 
fishing on pelagic species by BLL vessels and vice-versa, but not 
increase regulatory discards. Data from the Coastal and HMS logbooks 
indicate that, on average, vessels remained below this threshold from 
2000 [dash] 2004, although it would have been exceeded in 2004. Based 
upon public comment, NMFS has modified the list of demersal 
``indicator'' species by removing hammerhead and silky sharks, and by 
adding tilefish to the list. If necessary, both the 5-percent threshold 
and the list of indicator species could be modified in the future based 
upon a review of current and historic landings.
    Comment 10: More enforcement time should be spent at the docks 
rather than spending resources on investigating boats at sea. At-sea 
enforcement of alternative I1(c) could initiate unnecessary de-icing of 
fish in the hold while at sea, which has a substantial economic impact.
    Response: As discussed above in the response to Comment 8, this 
final rule is readily enforceable, either through dockside verification 
of landings or by at-sea boardings. If difficulties arise in 
determining whether a vessel is fishing with PLL or BLL gear in a 
closed area using the existing definitions, the species composition of 
catch methodology will provide a quantifiable method to verify fishing 
technique.
    Comment 11: The Gulf of Mexico Fishery Management Council and 
others have recommended that the preferred alternative be changed from 
I1(b) to I1(e); Base HMS time/area closures on all longlines (PLL and 
BLL); alternative I1(e) would be the easiest alternative to enforce. 
This is the only way to achieve a meaningful reduction in bycatch; 
billfish feed throughout the water column. To provide the proper 
protection needed, both types of longline gear should be prohibited 
from closed areas; alternative I1(e) should also prohibit buoy gear 
from the closed areas; alternative I1(e) is the only way to reduce 
bycatch and facilitate enforcement; and, how deep must BLL gear be set 
before it does not adversely affect pelagic species?
    Response: NMFS agrees that the alternative to base all closures on 
both PLL and BLL gear would be the easiest to enforce. However, this 
final rule limiting bycatch is expected to be very effective at 
preserving the conservation benefits associated with the closed areas, 
while simultaneously mitigating adverse economic impacts on longline 
vessels fishing in the closed areas. When deployed and fished properly, 
available logbook information suggests that BLL and PLL gear can be set 
and retrieved with only minor impacts on pelagic and demersal species, 
respectively. Closing these areas to all gears, therefore, would impose 
economic costs while achieving only minimal ecological benefits. NMFS 
anticipates that HMS longline vessels will continue to catch 
predominantly pelagic species in BLL closed areas, and demersal species 
in PLL closed areas. NMFS does not agree that areas closed to PLL or 
BLL gear also need to be closed to buoy gear. As discussed in the 
Authorized Fishing Gears section, NMFS is authorizing buoy gear in the 
commercial swordfish handgear fishery with gear marking requirements 
and limits on the number that may be deployed. These measures will 
prevent the uncontrolled future expansion of this gear sector, while 
simultaneously providing a reasonable opportunity for the U.S. to 
harvest its ICCAT swordfish quota.
ii. Shark Identification
    Comment 12: We support alternative I2(a) which would retain the 
current regulations regarding shark landing requirements (No Action) 
because the preferred alternative, I2(b), could have a negative 
economic impact on the fish houses due to degradation of the product. 
The sharks could be exposed to heat after unloading and weighing, 
instead of going directly into the ice vats after weighing. It costs 
time and money to stop and try to cut off all the secondary fins, 
particularly small ones after the boat has docked and the fish house 
has began the unloading efforts.
    Response: In an effort to improve data collection, quota 
monitoring, and stock assessments of shark species, the Agency is 
implementing measures requiring that the second dorsal and anal fins 
remain on all sharks through landing. While offloading and processing 
procedures may have to be adjusted initially, NMFS believes that 
efforts to improve shark identification and enforcement of regulations 
will improve the overall status of the shark fishery. These measures 
are an intermediate action, relative to no-action and requiring all 
fins on all sharks, in terms of economic impacts, in that the second 
dorsal and anal fins are typically the least valuable and are usually 
sold as the lowest quality grade. Either the dealer or the fishermen 
can remove these fins after landing. If removing the fins at the dock 
becomes problematic, it is possible that fishermen could pre-cut fins, 
so that they are only partially attached, to decrease processing time. 
Alternatively, dealers could remove the fins later when processing the 
rest of the carcass.

[[Page 58125]]

    Comment 13: NMFS received the following comments supporting the 
alternative to require the second dorsal and anal fins on all sharks: I 
support the preferred alternative; these measures will greatly enhance 
species-specific shark landing data and improve identification; 
retention of the second dorsal fin and anal fins of landed sharks, 
including nurse and lemon sharks, will improve quota monitoring, 
prohibited species enforcement, and species-specific identification of 
sharks; and, lemon sharks and great hammerheads have valuable fins- 
they should be ok to remove after landing.
    Response: The final rule is expected to generate ecological 
benefits by enhancing and improving species identification and data 
collection, particularly in coordination with the final management 
measures requiring shark dealer identification workshops, thereby 
leading to improved management and a sustainable fishery.
    Comment 14: Maintaining the second dorsal and anal fins on all 
sharks will do little to improve shark identification.
    Response: The second dorsal and anal fins of sharks vary in color, 
shape, and size (relative to the body). While retaining these fins may 
not allow all shark species to be distinguished from each other, NMFS 
believes that it will aid shark identification at landing, which, in 
conjunction with species identification workshops, should reduce the 
number of unclassified sharks being reported. While retaining these 
fins is expected to enhance identification, other alternatives allowing 
these fins to remain on nurse and lemon sharks could confuse 
identification by allowing some sharks to be completely finned, and 
could have adverse ecological impacts.
iii. HMS Retention Limits
    Comment 15: NMFS received the following comment in support of the 
no action alternative I3(a): Proceeds from fish caught in excess of a 
vessel's trip limit should be donated to NMFS to help fund the observer 
program up to a certain limit, such as 5 percent, and fishermen should 
get fined for anything above that percentage.
    Response: For each of the regulated HMS, specific trip limits have 
been developed based upon a number of biological, social, and/or 
economic reasons, such as the nature of the trip (commercial or 
recreational), the gear types used to harvest the fish, or the status 
of the stock in question. Thus, tolerance limits need to be developed 
for each individual species on a fishery-by-fishery basis, and may not 
be appropriate for all regulated species. Also, even with tolerance 
limits, the likelihood of exceeding these limits would still exist and 
NMFS would likely continue to receive comments to adjust the limit or 
tolerance limit. The suggestion to fund the observer program through 
proceeds from fish landed above the trip limit raises a number of 
practical and legal concerns. If these concerns can be satisfactorily 
resolved, NMFS may consider this suggestion in the future, as needed.
    Comment 16: Because NMFS is considering measures to strengthen HMS 
retention limits, does this mean that we are currently allowed to 
exceed the retention limits?
    Response: No. Currently all vessels fishing for, retaining, or 
possessing Atlantic HMS, with the intent to sell that catch, must abide 
by the commercial retention limits as stated in Sec. Sec.  635.23 and 
635.24. The current prohibitions located in Sec.  635.71 reinforce the 
applicability of these commercial limits. The final rule implements new 
prohibitions making it illegal for any person to purchase or sell any 
HMS from an individual vessel in excess of the commercial retention 
limits. As such, dealers or buyers of HMS in excess of commercial 
retention limits will be held responsible for their actions. These 
prohibitions are intended to improve compliance with HMS retention 
limits by extending the regulations to both of the parties involved in 
a transaction. They will reinforce and clarify other existing 
regulations regarding landings of HMS in excess of commercial retention 
limits.
    Comment 17: NMFS received comments both in support of and 
opposition to alternatives I3(b) and I3(c). Those comments in support 
stated that NMFS needs to make all parties involved in a violation of 
the fishery regulations accountable, both vessel owners and dealers 
regardless if they are commercial or recreational. Those comments 
opposed stated: Alternatives I3(b) and I3(c) eliminate flexibility when 
it comes to shark landings. As scales are not used on small boats, 
vessel owner/operators can only estimate a trip limit at sea based upon 
a carcass count and an estimated average weight; and, concerns exist 
regarding the 5-percent shark fin/body ratio. The ratio is not correct 
as it was based on one species. Thus, we need to have species-specific 
ratios for these alternatives to be fair.
    Response: The final rule is intended to improve compliance with HMS 
retention limits by extending the regulations to both of the parties 
involved in a transaction where HMS exceeding trip limits are sold or 
purchased. It will also reinforce and clarify other existing 
regulations regarding landings of HMS in excess of commercial retention 
limits. As with any limitation on catch, vessel owner/operators must 
use their experience and professional judgment in determining where 
their harvest stands in regard to catch/possession/trip limits to 
ensure that they do not exceed the limits. Regarding the 5-percent 
tolerance limit on shark fins, this limit is currently dictated by the 
Shark Finning Prohibition Act. NMFS cannot alter this limit.
    Comment 18: In addition to the selected alternatives, NMFS should 
enforce the existing prohibition on the sale of recreationally caught 
HMS. NMFS should levy heavy fines and permanent permit sanctions on the 
fishermen, vessel owner, and buyer if any bag limit fish are sold, 
traded, or bartered. NMFS should implement additional restrictive 
provisions in the Final Consolidated HMS FMP to prevent the illegal 
sale of recreational catches.
    Response: The current suite of regulations and prohibitions 
contained in 50 CFR part 635 address the illegal sale, trade, and 
bartering of recreationally landed HMS. As the range of violations 
regarding these types of activities can vary greatly, the current 
penalty schedule provides enforcement agents and prosecutors with the 
flexibility to determine a suitable fine, based on information 
pertaining to each specific infraction.
iv. Definition of ``East Florida Coast Closed Area''
    Comment 19: NMFS received contrasting comments on preferred 
alternative I4(b), which would modify the outer boundary of the East 
Florida Coast Closed Area so that it corresponds with the EEZ. These 
comments include: I support alternative I4(b), which amends the 
coordinates of the Florida East Coast closure; and, I am opposed to 
expanding any of the existing closed areas, including the East Florida 
Coast closed area described in preferred alternative I4(b). The PLL 
fleet needs every inch of available fishing grounds.
    Response: NMFS does not expect a reduction in HMS catches 
associated with the final rule because the geographic size increase is 
very small (0.5 nm) and, according to the PLL logbook data, there have 
not been any recent catches or PLL sets in this area. Fishing effort 
that would have occurred in this area will likely relocate to nearby 
open areas with similar catch rates. Therefore, overall fishing effort 
is not expected to change as a result of the final rule. NMFS is 
correcting the

[[Page 58126]]

coordinates to reflect the original intent of the East Florida Coast 
closed area to extend to the outer boundary of the EEZ.
v. Definition of ``Handline''
    Comment 20: I support preferred alternative I5(b), which requires 
that handlines be tied to the boat. If it is tied to the boat it is a 
handline, if it is not, it is a longline.
    Response: NMFS is implementing the referenced alternative which 
will require that all handlines remain attached to, or in contact with, 
a vessel. However, by authorizing buoy gear in the commercial swordfish 
handgear fishery (see Authorized Fishing Gears), unattached lines will 
not, by default, automatically be considered longline gear. Buoy gear 
will be authorized only in the commercial swordfish handgear fishery 
with gear marking requirements, hook limitations, and limits on the 
number that may be deployed. Both handlines and buoy gear will still be 
limited to no more than two hooks per line.
    Comment 21: We support alternative I5(c), which would require 
fishermen to attach their handlines to their vessels, because handlines 
should remain as recreational gear (attached to the vessel) and buoy 
gear should be designated as commercial gear. However, there are times 
when fishermen need to detach their handlines, particularly when a 
large captured fish has spooled several reels, in order to retrieve the 
gear. Is that now going to be prohibited?
    Response: Buoy gear will be authorized only for the commercial 
swordfish fishery. However, handlines are, and will continue to be, 
authorized in both commercial and recreational fisheries. The final 
rule requires that handlines remain attached to a vessel. It does not 
change which fisheries the gear is authorized for. The situation where 
a large fish spools several reels and must be ``tethered-off'' to 
retrieve the gear and/or the fish is an uncommon, but not rare, 
occurrence. The important factor in determining if this is an allowable 
practice is whether or not the handline was attached to the vessel when 
the fish was first hooked. Primarily to facilitate safety at sea, the 
handline could be ``tethered-off'' if it was attached to the vessel 
when the fish was hooked. NMFS anticipates that these situations will 
need to be examined on a case-by-case basis, in consideration of the 
circumstances affecting the decision to detach the handline.
    Comment 22: How is the definition of ``handline gear'' different 
from the ``buoy gear'' definition?
    Response: In the final rule, the main difference between the two 
gears is whether or not the gear is attached to a vessel. If the gear 
is attached, it would be considered handline and could be used, with 
the appropriate permits, in any of the tunas, swordfish, or shark 
fisheries. If the gear is not attached, it will be considered buoy gear 
and can only be used in the commercial swordfish handgear fishery. 
Specifically, handlines are defined as 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. Buoy 
gear is authorized for the commercial handgear fishery, and consists of 
one or more floatation devices supporting a single mainline to which no 
more than two hooks or gangions are attached. Buoy gear is required to 
be constructed and deployed so that the hooks are attached to the 
vertical portion of the mainline. Flotation devices may be attached to 
one, but not both ends of the mainline, and no hooks or gangions may be 
attached to any horizontal portion of the mainline. If more than one 
floatation device is attached to a buoy gear, no hook or gangion is 
allowed to be attached to the mainline between them. Individual buoy 
gears may not be linked, clipped, or connected together in any way. All 
buoy gears are required to be released and retrieved by hand. Fishermen 
using buoy gear will also be required to affix monitoring equipment to 
each individual buoy gear. Gear monitoring equipment may include, but 
is not limited to, radar reflectors, beeper devices, lights, or 
reflective tape. If only reflective tape is used, the vessel deploying 
the buoy gear is required to possess an operable spotlight capable of 
illuminating deployed flotation devices. Additionally, a floatation 
device is defined as any positively buoyant object rigged to be 
attached to a fishing gear.
    Comment 23: Are floating handlines being used to catch juvenile 
swordfish in the East Florida Coast closed area?
    Response: Available HMS logbook data from 2000 to 2004 indicate 
that the ``handline-only'' fishery grew significantly in 2004, and that 
catches and discards of swordfish in the ``handline-only'' fishery 
increased as well. However, the HMS logbook does not differentiate 
between ``attached'' and ``unattached'' handlines, and recreational 
data are limited. Given these limitations, it is not possible to 
determine conclusively if floating handlines are being used to catch 
juvenile swordfish in the East Florida Coast closed area. However, 
given that the legal minimum size is below the size of maturity, the 
average size of swordfish caught across all fisheries is below the size 
of maturity. Because the area off the east coast of Florida is a known 
nursery ground for swordfish, it is likely that any fishing gear, 
including rod and reel or handline, used to catch swordfish off the 
east coast of Florida catches juvenile swordfish.
vi. Possession of Billfish on Vessels Issued HMS Commercial Permits
    Comment 24: What types of permits would be affected by preferred 
alternative I6(b), which prohibits vessels issued commercial permits 
and operating outside of a tournament from possessing or taking 
Atlantic billfish?
    Response: Under the final rule, only persons issued an HMS Angling 
or HMS Charter/Headboat, or who have been issued an Atlantic Tunas 
General Category permit and are participating in a registered HMS 
tournament, are allowed to possess or take an Atlantic billfish. 
Persons issued only Federal swordfish, shark, or Atlantic Tunas permits 
(including General Category permits outside of registered HMS 
tournaments) are not allowed to possess or take an Atlantic billfish. 
Persons issued both commercial and recreational HMS permits can take 
billfish, but only if the HMS species possessed onboard the vessel do 
not exceed the HMS recreational retention limits.
    Comment 25: NMFS needs to make sure that the language in preferred 
alternative I6(b) is very clear in specifying that a commercial permit 
refers to HMS commercial fisheries.
    Response: The regulations clarify that only persons issued an HMS 
Angling or HMS Charter/Headboat, or who have been issued an Atlantic 
Tunas General Category permit and are participating in a registered HMS 
tournament, may possess or take an Atlantic billfish. Persons issued 
non-HMS commercial permits may possess or take Atlantic billfish only 
if they have also been issued the appropriate HMS permits.
    Comment 26: NMFS received several comments in support of, or in 
opposition to, the preferred alternative I6(b) including: I support 
preferred alternative I6(b) until Atlantic billfish stocks are rebuilt; 
we support prohibiting commercial vessels from possessing, retaining, 
or taking Atlantic billfish (alternative I6(b)); I support preferred 
alternative I6(b), because it would help to eliminate gillnet fisheries 
that kill billfish and other non-target species; I am opposed to 
preferred alternative I6(b) because all commercial vessels should be 
able to retain recreational bag limits; and, the preferred alternative 
I6(b) would have

[[Page 58127]]

more negative impacts than NMFS has listed presently in the DEIS.
    Response: The final rule clarifies that commercial HMS vessels 
cannot possess or take Atlantic billfish. The regulations also clarify 
that the current Atlantic billfish fishery is a recreational fishery 
and that Atlantic billfish may only be possessed or retained when taken 
recreationally by rod and reel. These measures do not eliminate any 
existing fisheries, but indicate that commercial fishermen onboard 
gillnet or bottom longline vessels cannot retain a billfish taken with 
rod and reel for personal use, unless the vessel possesses both the 
recreational and commercial permits (e.g., a commercial shark limited 
access permit and an HMS Charter/Headboat permit) and if the other HMS 
onboard did not exceed the HMS recreational retention limits. 
Furthermore, General Category fishermen fishing for Atlantic tunas with 
rod and reel may not possess billfish outside of registered HMS 
tournaments. To the extent that some fishermen with commercial HMS 
permits may take billfish, there could be minimal impacts on commercial 
fishermen taking billfish for personal use. Current regulations do not 
allow commercial HMS fishermen to take recreational limits of HMS. NMFS 
believes that few commercial HMS fishermen take billfish, this 
alternative clarifies the regulations, and reinforces the recreational 
nature of the Atlantic billfish fishery. Once Atlantic billfish are 
rebuilt, NMFS may consider alternatives to allow persons issued HMS 
commercial permits to possess a limited number of Atlantic billfish for 
personal use.
vii. Bluefin Tuna Dealer Reporting
    Comment 27: I support preferred alternative I7(b), which would 
allow tuna dealers to submit their required reports using the Internet; 
NMFS should move towards alternative I7(c), which would require 
mandatory internet reporting, as soon as possible.
    Response: Due to the importance NMFS places on reporting, the 
Agency wants to ensure that reporting is both convenient and fair for 
all user groups. Mandatory Internet reporting will not be implemented 
until NMFS is confident that such an action will not impede the 
reporting process.
viii. ``No-Fishing'', ``Cost-Earnings'', and ``Annual Expenditures'' 
Reporting Forms
    Comment 28: I support preferred alternative I8(b), which requires 
the submission of ``no-fishing'' forms. Is there latitude with logbooks 
coming in from different countries? If you do not have all the parts of 
the logbook submission, should you send in what you have or wait until 
you have everything? For instance, I often do not have the offload 
tally by the time the logbook is due (seven days after offloading).
    Response: As specified in the Atlantic HMS regulations 50 CFR 
635.5, owners of vessels issued an HMS permit must submit a fishing 
record that reports the vessel's fishing effort, and the number of fish 
landed and discarded. This information should be entered in the logbook 
within 48 hours of completing that day's activities on a multi-day 
trip, or before offloading on a single day trip. Additionally, if HMS 
are sold, the vessel owner must acquire copies of the weigh out slips 
for submittal with the logbook forms. All forms must be postmarked 
within seven days of offloading HMS, regardless of offloading location. 
The final rule does not change these requirements.
ix. Non-Tournament Recreational Landings Reporting
    Comment 29: Vessel owners should not have to report their 
recreationally-caught fish because they are often too busy (e.g., 
absentee boat owners that fly into Florida from New York City for the 
weekend).
    Response: Because vessel owners are issued HMS permits, the 
recreational non-tournament reporting requirement should logically, and 
for compliance purposes, be the responsibility of vessel owners. 
Furthermore, since vessel owners are the permit holders, they are more 
likely to be familiar with the regulations governing their fishery than 
non-permitted anglers who might be onboard, possibly for just a day on 
a charter trip. The final rule will achieve better consistency with 
other HMS recreational reporting requirements, and may also enhance the 
accuracy of, and compliance with, non-tournament HMS recreational data 
collection. However, in response to this comment and other comments, 
NMFS has slightly modified the proposed regulations to allow an owner's 
designee to report non-tournament recreational landings of Atlantic 
billfish and swordfish. The vessel owner will still be held responsible 
for reporting, but the owner's designee may fulfill the requirement.
x. Pelagic Longline 25 mt NED Incidental BFT Allocation
    Comment 30: NMFS should clarify whether ``carryover'' provisions 
would apply to the underharvest of the 25 mt NED BFT quota set-aside 
described in alternative I10(b).
    Response: The alternative that was formerly preferred in the Draft 
Consolidated HMS FMP would have clarified that carryover procedures 
apply to the NED set-aside, and that any under/overharvest of the 25 mt 
(ww) NED set-aside would be carried forward into, or deducted from, the 
subsequent fishing year's set-aside allocation. This alternative was 
originally preferred in the Draft Consolidated HMS FMP, but after 
subsequent analysis of the recommendation and in response to comments 
seeking clarification, the Agency has determined that the ICCAT 
recommendation provides the flexibility to avoid some of the potential 
negative consequences associated with the carryover provisions of 
alternative I10(b). Alternative I10(c) is now the preferred 
alternative.
    Comment 31: NMFS received a comment in support of alternative 
I10(b), which would allocate 25 mt (ww) for PLL incidental catch in the 
NED each year.
    Response: This alternative was originally preferred in the Draft 
Consolidated HMS FMP, because NMFS believed that its interpretation 
would provide consistency between the regulations and operational 
practices regarding rollovers and final set-aside quotas in excess of 
25 mt (ww). However, since publication of the Draft Consolidated HMS 
FMP, additional analysis of the ICCAT recommendation indicated that the 
previously preferred alternative, I10(b), might have some potential 
negative consequences that could be avoided. Thus, under alternative 
I10(b), incidental BFT landings from the NED Statistical area would be 
accounted for in this specific set-aside quota and any under/
overharvest of the set-aside quota would have been added to, or 
deducted from, the following year's baseline quota allocation of 25 mt 
(ww). The under/overharvest accounting procedures contained in this 
alternative may have some potentially adverse ecological impacts. 
Specifically, if the NED set-aside was not attained in multiple 
successive years, the set-aside quota could increase quite dramatically 
and, as the wording in the ICCAT recommendation specifically allocates 
this quota to the longline sector of the U.S. fleet, NMFS would not 
have the flexibility to transfer this quota to the Reserve or to 
another domestic user group, to avoid a ``stockpiling'' situation from 
occurring. An unrestrained build-up of the incidental NED set-aside BFT 
quota may eventually undermine the intent of the set-aside itself by 
leading to additional effort being deployed in the NED, and potentially 
providing an

[[Page 58128]]

incentive to direct additional effort on BFT. For example, this set-
aside could increase to a level that makes it more attractive for PLL 
vessels to target BFT, which could possibly result in negative impacts 
to BFT stocks. Therefore, this alternative is no longer preferred and, 
instead, alternative I10(c) is preferred. Alternative I10(c) will not 
carry forward any under/overharvest, until such time as further ICCAT 
discussions regarding quota rollovers are conducted.
xi. Permit Condition for Recreational Trips
    Comment 32: NMFS received comments in support of preferred 
alternative I11(b) including: We support preferred alternative I11(b) 
because it will enhance Atlantic shark conservation efforts while ASMFC 
develops an interstate FMP; and, I support the presumption that an HMS 
onboard a vessel was caught in Federal waters, because the current 
regulations cause enforcement problems.
    Response: NMFS agrees that this final rule will enhance HMS 
conservation efforts and will improve the enforcement of HMS 
regulations. Currently, in many states, fishermen are able to bypass 
both Federal and state regulations by stating they were fishing in 
state waters, rather than Federal waters, or vice versa. Under this 
rule, recreational fishermen fishing in Federal waters, who have a 
Federal permit, must comply with the more restrictive regulation if 
they are obtaining a Federal permit. Recreational fishermen who do not 
have a Federal permit will continue to have to comply with only state 
regulations. Thus, as a result of this final rule, enforcement officers 
will no longer need a statement from a fisherman with a Federal permit 
regarding where the fish was caught. Rather, they will be able to take 
enforcement action under the more restrictive regulations. This 
requirement has been in place for a number of years for shark and 
swordfish commercial fishermen and has been useful in enforcing 
commercial regulations.
    Comment 33: Will NMFS consider the full suite of regulations 
implemented by states with regard to HMS or will it simply look at each 
regulation individually? How does NMFS intend to define ``strict?''
    Response: Each situation will need to be examined on a case-by-case 
basis; however, it is likely that the regulations will be enforced 
individually rather than as a suite. For instance, if a state has a 
larger bag limit and larger minimum size than the Federal regulations, 
the fishermen will be limited by both the Federal bag limit and the 
state minimum size.
    Comment 34: NMFS could say that all HMS vessels with Federal 
permits (instead of just recreational-permitted vessels) should comply 
with Federal regulations when in Federal or state waters.
    Response: NMFS already has a requirement in place for commercial 
shark and swordfish fishermen. NMFS also has the authority, under the 
Atlantic Tunas Convention Act (ATCA), to manage Atlantic tunas all the 
way to shore for most states. This final rule will improve the 
enforcement of the remaining fisheries (recreational shark, swordfish, 
and billfish) without superseding the regulations of the states. Thus, 
the final rule will allow states to establish their own regulations for 
shark, swordfish, and billfish fishermen who are fishing only within 
state waters (Maine and Connecticut can also establish their own 
regulations for Atlantic tunas). NMFS has the authority to pre-empt 
states regarding HMS under both the Magnuson-Stevens Act and ATCA. 
However, NMFS prefers to work with states and the Atlantic and Gulf 
States Marine Fisheries Commissions towards consistent regulations that 
meet both international and domestic goals, because each state is 
different and the fishermen in each state prefer to fish for different 
HMS and use different gears. If necessary to ensure rebuilding under 
the HMS FMP or under an ICCAT Rebuilding Program, NMFS may consider 
pre-empting state authority for specific HMS.
    Comment 35: The South Atlantic Fishery Management Council (SAFMC) 
and the State of Georgia commented that the preferred alternative 
I11(b) should be revised as for state/federal regulations does not 
implement the correct intent as: For allowable Atlantic billfish (and 
other HMS that can legally be included), if a state has a catch, 
landing, or gear regulation that is more restrictive than a catch, 
landing, or gear regulation in the HMS FMP, a person landing in such 
state Atlantic Billfish (and other HMS to be included) taken from the 
U.S. EEZ must comply with more restrictive state regulation. The 
requirement should be a two-way street where more restrictive state 
regulations should apply in adjacent federal waters.
    Response: Individual states establish regulations for billfish or 
other HMS caught in state waters, which may sometimes be more 
restrictive than the federal regulations. This final action would not 
change state regulations of fishing in state waters. Federal 
regulations are established based on ICCAT recommendations (e.g., the 
billfish size limits), implemented as necessary and appropriate 
pursuant to ATCA and based on the Magnuson-Stevens Act. Selected 
alternative I11(b) is intended to ensure compliance with these laws and 
Federal regulations by federally-permitted vessels.
    Comment 36: HMS needs to check with the Regional Fishery Management 
Councils to make sure they are not running afoul of one another. The 
preferred alternative I11(b) could create more confusion if there is 
not a consistent policy for all Federal fishery regulations.
    Response: While NMFS agrees that consistent policies across 
fisheries regulations are often appropriate, NMFS disagrees that a 
regulatory requirement would cause confusion if it were not consistent 
across the different Regional Fishery Management Councils. Currently, 
recreational fishermen fishing for HMS are the only Federally regulated 
recreational fishermen that are required to obtain a recreational 
fishing permit. Recreational fishermen fishing for HMS in Federal 
waters are already familiar with and abide by Federal regulations for 
HMS. Similar to other regulations, a permit condition that is 
appropriate for HMS may not be appropriate for a species managed by a 
Regional Fishery Management Council. A Federal permit condition for 
those HMS fishermen who also fish for HMS in state waters should not 
cause confusion with other Federal regulations for other species 
managed by Regional Fishery Management Councils. Nevertheless, NMFS 
will continue to work with the affected Regional Fishery Management 
Councils to ensure consistency, as needed.
    Comment 37: Texas Parks and Wildlife opposes the preferred 
alternative I11(b), which would establish a permit condition on 
recreational permit holders. The alternative would increase confusion 
because it applies only to HMS and not to the many other species in 
state waters. Second, Texas regulations require that recreational 
landings in Texas meet Texas bag and size limits regardless of where 
the fish was caught unless the regulations in the waters where they 
were caught are more restrictive. Third, the preferred alternative 
applies only to Federal permit holders and would therefore create a 
scenario where different regulations apply in the same location. 
Lastly, the alternative does not simplify already confusing and complex 
regulations.
    Response: NMFS does not agree that a recreational permit condition 
will increase confusion. This regulation will

[[Page 58129]]

decrease confusion by clarifying that fishermen who are permitted to 
fish for HMS in Federal waters must comply with Federal regulations 
regardless of where they are fishing, and that if they are fishing in 
state waters they must comply with the more restrictive regulation. 
Without this regulation, fishermen may need to comply with one 
regulation while fishing in Federal waters and another regulation while 
fishing in state waters. The final rule clarifies the situation if 
fishermen are fishing in both state and Federal waters on the same 
trip. With regard to the second point, the State of Texas has 
implemented a regulation for its waters that mirrors the regulation 
that NMFS is selecting. The Federal requirements will not change this 
and may complement the regulation by ensuring that federally permitted 
fishermen do not exceed either the Federal or Texas bag and size limits 
when fishing in or near Texas waters. NMFS agrees that different 
regulations could apply to federally permitted fisherman fishing in 
state waters next to a state-only permitted fisherman. This should not 
be an issue since the more restrictive regulation would apply. It may 
appear to be unfair to the federally permitted fisherman if the Federal 
regulations for that species are more restrictive than the state 
regulations for that species. However, the federally permitted 
fisherman also has the opportunity to fish for HMS outside of state 
waters. If the federally permitted fisherman decides that the 
opportunity is not worth the additional restrictions, then that 
fisherman could decide not to obtain the permit. The final rule will 
not change the regulations for state-only permitted fishermen, who are 
restricted to fishing within state waters and must comply with state, 
not Federal, regulations.
    Comment 38: While the South Carolina Department of Natural 
Resources understands the importance of consistent protection for HMS 
in state and Federal waters, we do not believe it was the intent of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) to regulate fisheries in state waters except under unusual 
circumstances. We request that preferred alternative I11(b) be deleted 
from the plan, and that HMS caught within state waters be regulated 
through complementary state legislation and regulations, or through 
provisions already existing in the Act that address special cases.
    Response: NMFS does not agree that the requirement is regulating 
fisheries in state waters. The Magnuson-Stevens Act authorizes the 
Secretary of Commerce to manage HMS fisheries to ensure their 
conservation and the achievement of optimum yield throughout their 
range, both within and beyond the exclusive economic zone (16 U.S.C. 
1812). Requiring recreational fishermen to comply with Federal 
regulations regardless of where they are fishing, unless a state has 
more restrictive regulations, allows NMFS to manage these fisheries in 
a more effective manner. Additionally, the requirement will only apply 
to those fishermen that obtain a Federal permit because they fish in 
Federal waters at some times. The requirement will not change state 
regulations. Thus, states can establish their own regulations for 
fishermen who fish in state waters and not in Federal waters. Fishermen 
still have a choice not to obtain a Federal permit and to comply only 
with state regulations in state waters.
xii. Proposed Regulatory Changes that Do Not Need Alternatives
    Comment 39: We support the regulatory changes that do not have 
alternatives.
    Response: NMFS appreciates this comment. The regulatory changes 
that did not need alternatives included corrections, clarifications, 
minor changes in definitions, and modifications to remove obsolete 
cross-references. It is necessary to make these types of regulatory 
changes as dates expire, and as minor issues are brought to the 
Agency's attention.
    Comment 40: NMFS received a comment regarding the changes to 
clarify the definition of ``shark'' and the shark ``management unit'': 
I am concerned about any item that lessens conservation on deepwater 
sharks; and, deepwater sharks should be added to the prohibited list 
rather than removed from the management unit.
    Response: The minor changes to the shark definition and management 
unit will not diminish the conservation of deepwater sharks. Deepwater 
sharks were previously placed in the management unit in order to 
prevent finning for these species. No other regulations (e.g., permits, 
quotas, or bag limits) were placed on these species. With the 
implementation of the Shark Finning Prohibition Act in 2002 (February 
11, 2002, 67 FR 6194), NMFS decided the species were fully protected 
against finning through regulations outside of the FMP, and thus, 
removed the species from the management unit in Amendment 1 to the 1999 
Atlantic Tunas, Swordfish, and Shark FMP (December 24, 2003, 68 FR 
74746). The referenced changes clarify the existing regulations by 
linking the definition of ``shark'' more directly to the definition of 
the shark ``management unit.'' NMFS will continue to collect 
information on deepwater sharks and may add them to the management unit 
or implement additional management measures in the future, as needed.
    Comment 41: The proposed changes to the HMS tournament registration 
process appear to complement proposed improvements to HMS tournament 
registration, data collection, and enforcement described in Alternative 
E9. Data collection should be mandatory for all tournaments, just as it 
has been for all non-tournament landings since 2003. There must be more 
accurate estimates of billfish mortality.
    Response: These regulatory changes, which specify that HMS 
tournament registration is not considered complete unless the 
tournament operator receives a confirmation number from the HMS 
Management Division, will serve a very similar purpose to the non-
preferred alternative, which would have implemented a mandatory HMS 
tournament permit. HMS tournament registration is already mandatory, so 
the issuance of a confirmation number will provide verification that 
the process is complete in a much less burdensome manner. Currently, 
NMFS can select all registered HMS tournaments for mandatory reporting. 
Data obtained from HMS tournament reporting is used for a variety of 
purposes.

Essential Fish Habitat (EFH)

    Comment 1: NMFS should look at recent Sargassum research that 
suggests that Sargassum is essential fish habitat for juvenile 
billfish. The United States should pursue all appropriate opportunities 
to ensure that this unique EFH is protected in international waters 
from excessive harvest and degradation.
    Response: NMFS is aware of recent research regarding the role of 
Sargassum as EFH for certain species, including HMS. However, NMFS does 
not have the authority to identify and describe EFH in international 
waters. Furthermore, NMFS is not modifying the current descriptions or 
boundaries of EFH in the Consolidated HMS FMP. Rather, NMFS gathered 
all new and relevant information and presented it in the Draft FMP to 
determine whether changes to EFH may be warranted. If NMFS determines 
that EFH for some or all HMS needs to be modified, then that would be 
addressed in a subsequent rulemaking, at which point Sargassum could 
also be considered as potential EFH. With regard to harvest, the final 
South Atlantic Fishery Management Council FMP for Pelagic Sargassum 
Habitat in the South Atlantic Region was approved in 2003 and 
implemented

[[Page 58130]]

strict restrictions on commercial harvest of Sargassum. The approved 
plan includes strong limitations on future commercial harvest. 
Restrictions include prohibition of harvest south of the boundary 
between North Carolina and South Carolina, a total allowable catch 
(TAC) of 5,000 pounds wet weight per year, limiting harvest to November 
through June to protect turtles, requiring observers onboard any vessel 
harvesting Sargassum, prohibiting harvest within 100 miles of shore, 
and gear specifications.
    Comment 2: The U.S. proposal at ICCAT to identify Sargassum as EFH 
was met with absolute resistance. NMFS has to be careful in dealing 
with this subject in an international forum. It can undermine what NMFS 
is trying to do.
    Response: NMFS is aware that there are many issues to consider with 
regard to identifying and describing Sargassum as EFH for HMS species. 
In addition, there are potential international concerns, as expressed 
at ICCAT, regarding Sargassum as sensitive and valuable habitat. NMFS 
will continue to examine these issues carefully, and work to improve 
our understanding of the role of Sargassum as valuable habitat for HMS.
    Comment 3: Does NMFS have data to justify not designating the 
entire northern Gulf of Mexico as EFH, where the paper in the journal 
``Nature'' shows the presence of adult BFT from January to June?
    Response: As described in response to comment 1, NMFS is not 
currently changing any of the EFH areas identified for HMS, including 
EFH for BFT through this FMP. However, large portions of the Gulf of 
Mexico are already identified as EFH under the original EFH 
descriptions in the 1999 FMP for several life stages of BFT, including 
adult and larval BFT.
    Comment 4: The HMS regulations should acknowledge and comply with 
Gulf of Mexico EEZ EFH and Habitat Areas of Particular Concern (HAPC) 
designation and regulations, including any future designations that the 
Gulf of Mexico Fishery Management Council may make when conducting the 
subsequent rulemaking mentioned in the Draft Consolidated HMS FMP.
    Response: NMFS agrees that any future modifications to EFH or new 
HAPC areas in the Gulf of Mexico, or any region for that matter, should 
be coordinated with appropriate Regional Fishery Management Council 
designations and regulations. The EFH guidelines require NMFS to 
consider fishing and non-fishing impacts of other fisheries on HMS EFH, 
as well as the impact of HMS fishing activities on EFH for other 
federally managed species.
    Comment 5: What process did NMFS use to identify shark EFH areas 
north of Cape Hatteras? EFH boundaries appear to follow bathymetric 
contour intervals. Is this deliberate or just a coincidence?
    Response: EFH areas north of Cape Hatteras were identified and 
described in the 1999 FMP through a combination of fishery dependent 
and independent surveys and data collection, research, and the input of 
fishery managers and scientists. References to peer-reviewed scientific 
publications that were used to help identify important spawning and 
nursery habitat for sandbar and dusky shark are included in the 1999 
FMP as well as the Consolidated HMS FMP. As described in the 1999 FMP, 
in some cases bathymetric contours were used to help delineate EFH 
boundaries because they can mirror the observed distributions of HMS 
and important areas for spawning, feeding, and growth to maturity.
    Comment 6: NMFS should not use the same process the Gulf of Mexico 
Fishery Management Council did in identifying EFH and impacts to EFH. 
The Gulf of Mexico Fishery Management Council managed areas are 
completely different, and people fish differently here (in the 
Atlantic) than in the Gulf of Mexico.
    Response: The species managed by each of the Regional Fishery 
Management Councils are unique, with characteristics that require 
different approaches and methodologies for identification and 
description of EFH, including addressing both fishing and non-fishing 
impacts. Similarly, HMS have unique habitat requirements that require a 
unique approach to identification of EFH. However, EFH guidelines 
require NMFS to consider fishing and non-fishing impacts of other 
fisheries on HMS EFH, as well as the impact of HMS fishing activities 
on EFH for other federally managed species. Therefore, NMFS must 
coordinate with the relevant regional fishery management councils as 
part of the process of modifying EFH.
    Comment 7: Does HMS EFH include liquefied natural gas (LNG) 
facilities?
    Response: NMFS has not specifically identified the structures 
associated with LNG facilities as EFH, however, these structures may be 
located within waters that have been identified as HMS EFH. For 
example, there are energy production facilities off the coast of 
Louisiana and Texas that may fall within EFH identified and described 
for BFT, yellowfin tuna, swordfish, and other HMS species.
    Comment 8: NMFS received several comments regarding BFT EFH in the 
Gulf of Mexico including, NMFS must identify the Gulf of Mexico 
spawning area as EFH for BFT and consider appropriate measures to 
minimize the impact of fishing on this EFH, and if NMFS identifies the 
Gulf of Mexico BFT EFH, then NMFS should include the rest of the 
Atlantic and the Mediterranean also.
    Response: Portions of the Gulf of Mexico, Florida east coast, and 
the Atlantic were identified and described as adult and larval BFT EFH 
in the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks, and the 
areas remain in effect to this day. NMFS is reviewing new and existing 
information, including data on potential BFT spawning areas, and will 
take that information into account if any modifications to EFH areas 
are proposed in a future rulemaking. NMFS does not have the authority 
to identify and describe EFH outside of the U.S. EEZ.
    Comment 9: NMFS is to be commended for substantial progress in 
development of the HMS EFH Plan. NMFS has come a long way in 
identifying EFH and should be congratulated on the work completed in 
the EFH review and the review of fishing impacts. However, there is 
still a disconnect between the available data, especially with sharks, 
and what is in the Draft Consolidated HMS FMP. NMFS should do a better 
job of including data from research institutions and grants. NMFS 
should include individual researcher's names that have contributed 
toward identifying EFH.
    Response: NMFS appreciates the favorable comment, while 
acknowledging that there is considerable work left to do to accurately 
identify and describe EFH for HMS. As described in the Final 
Consolidated FMP, significant hurdles must be overcome and NMFS is 
attempting to address these. For example, NMFS is continually working 
with NMFS scientists and other experts to update relevant data 
regarding HMS EFH as it becomes available. NMFS will also include the 
names of researchers responsible for collecting the data. Where 
possible and appropriate, NMFS has already included the names of 
individual researchers in the text, maps, and tables.
    Comment 10: NMFS needs to update EFH for sandbar sharks, all age 
groups, by including a nursery area in the western Gulf of Mexico off 
the Texas coast, which is a straddling stock with Mexico. It gets into 
the straddling stock issue instead of the closed stock scenario. NMFS 
needs to recognize the reality of the straddling stock. This area

[[Page 58131]]

is referred to in Stewart Springer's ``The Natural History of the 
Sandbar Shark.''
    Response: NMFS is aware of research done by Springer (1960) who 
proposed the existence of two breeding populations of sandbar sharks, 
one off the mid-Atlantic coast, and one in the Gulf of Mexico. One of 
the research recommendations of the 2005 LCS Stock Assessment was to 
identify nursery areas of sandbar sharks in the northern Gulf of 
Mexico, and NMFS will consider this information in any subsequent 
updates or modifications to sandbar shark EFH. Although the Springer 
research showed a few neonates (newborns) in the Gulf of Mexico, there 
may not have been enough to consider this area a primary nursery 
habitat like the mid-Atlantic.
    Comment 11: NMFS has identified HAPCs off of North Carolina and 
other areas further north. Since NMFS has implemented a closure off 
North Carolina, NMFS should also bring Virginia into compliance to 
discourage shark fishing during pupping periods.
    Response: NMFS agrees, and has asked Virginia to implement state 
regulations that complement the Federal regulations. Recently Virginia 
implemented a 4,000 lb trip limit consistent with the Federal 
regulations. NMFS is continuing to work, through ASMFC and the 
development of a coastwide state fishery management plan, with Virginia 
and other states to implement similar regulations as the Federal 
fishery.
    Comment 12: NMFS should consider differences between monofilament 
and cable bottom longline when it comes to gear and impacts to coral 
reefs and sponges. Bottom longline gear would not damage mud bottoms.
    Response: NMFS agrees that the type of gear used to fish in 
sensitive habitat areas may affect the overall impacts. NMFS will also 
be looking at overall fishing effort in sensitive coral reef areas to 
determine whether fishing impacts are more than minimal and not 
temporary. If NMFS finds that the adverse fishing effects on EFH are 
more than minimal and not temporary in nature, then NMFS will have to 
consider alternatives to reduce fishing impacts.
    Comment 13: Most HMS gears such as pelagic longline would not 
affect HMS EFH.
    Response: NMFS agrees that gears used to fish for HMS, with the 
possible exception of bottom longline gear, would have little or no 
impact on HMS EFH.
    Comment 14: NMFS should look at sink gillnets and possible impacts 
on EFH. Fishermen may not want to fish on live bottom and reefs, but 
they do hit them as evidenced by the catch, which includes various reef 
species that they catch incidentally. These may include HMS forage 
species as well. NFMS should investigate the possible impacts of sink 
gillnet gear on offshore hard bottoms and reefs. This gear is being 
deployed on sensitive sponge-coral areas.
    Response: The full extent of sink gillnet impacts on benthic 
habitat is not known at this time. NMFS agrees that the primary adverse 
impact of sink gillnets to sensitive habitat would be to areas 
containing coral reefs or soft sponges. Sink gillnets set on sandy or 
mud bottom would be less likely to have an adverse effect, as there 
would be little vertical structure that could be damaged. NMFS will 
continue to gather information to assess whether sink gillnets are 
having adverse effects on EFH and whether actions to minimize adverse 
impacts should be taken in a future rulemaking.
    Comment 15: Will NMFS be documenting where the prey species are 
found?
    Response: Similar to what was done in the 1999 FMP for Atlantic 
Tunas, Swordfish, and Sharks, NMFS will document areas that are 
important to HMS for spawning, feeding, breeding, and growth to 
maturity. This will require identification of prey species and the 
degree to which they overlap both temporally and spatially with HMS in 
a given area.
    Comment 16: NMFS should consider EFH designation for forage species 
for BFT in the Gulf of Maine. By removing prey species such as herring, 
mid water trawling has been destroying BFT in the Northeast. Fish are 
moving to Canada, and Canada would be happy to take our fish. Mid-water 
trawling is banned in Canadian waters, and they have a booming BFT 
fishery right now. We have seen in the past that the BFT will modify 
their migrations, and we would not want to see that happen now. We are 
disappointed to see that this has not been addressed at all in the FMP. 
The New England Fishery Management Council is taking Amendment 7 under 
consideration, and we would like to see an emergency rule take place to 
ban mid-water trawling gear.
    Response: In the 1999 FMP for Atlantic Tunas, Swordfish, and 
Sharks, NMFS identified and described large portions of the Gulf of 
Maine as EFH for adult BFT, and smaller portions of the Gulf as EFH for 
juvenile BFT. As set forth in the EFH guidelines, loss of prey species 
may be an adverse effect on EFH and managed species because the 
presence of prey makes waters and substrate function as feeding 
habitat. Therefore, actions that reduce the availability of a major 
prey species, either through direct harm or capture, or through adverse 
impacts to the prey species' habitat that are known to reduce the 
population of the prey species, may be considered adverse effects on 
EFH if such actions reduce the quality of EFH. However, as described in 
the FMP, BFT are opportunistic feeders that prey on a variety of 
schooling fish, cephalopods, benthic invertebrates, including silver 
hake, Atlantic mackerel, Atlantic herring, krill, sandlance, and squid. 
Thus, NMFS needs to determine the extent to which herring or other prey 
species contribute to BFT EFH, and whether the removal of a portion of 
herring in the Gulf of Maine constitutes a negative effect on BFT EFH 
prior to taking any action. The EFH areas identified and described as 
EFH for adult BFT in the Gulf of Maine may overlap with a number of 
different prey species in the area in addition to Atlantic herring. 
These types of analyses would be part of a follow up rulemaking in 
which any changes to EFH boundaries, as well as any measures to 
minimize adverse effects, would be proposed. NMFS will continue to 
examine the importance of forage species on BFT and other HMS EFH.
    Comment 17: NMFS should implement similar measures for herring as 
those taken by the New England Fishery Management Council. Even though 
herring are not a HMS species, HMS are part of sustainable fisheries, 
and NMFS has an interest at stake. HMS should speak up when NMFS is 
considering what to do with the herring plan.
    Response: The New England Fishery Management Council has proposed 
several measures for the Atlantic herring fishery in the Gulf of Maine, 
including limited access permits, a mid-water trawl restricted area, 
area specific total allowable catches, and vessel monitoring systems, 
among others. NMFS is following the development of the FMP and will 
provide comments on the plan as appropriate.
    Comment 18: EFH designations are intended to address the physical 
habitat and not forage species. EFH is not an appropriate forum to 
address forage issues. For example, herring fishermen could say that 
they cannot catch herring because the BFT are eating them all. The 
timing and location of harvest is a management issue, not a habitat 
issue. This is a question about access.
    Response: The EFH guidelines state that FMPs should list the major 
prey species for the species in the fishery

[[Page 58132]]

management unit and discuss the location of prey species habitat, and 
that loss of prey may be considered an adverse effect on EFH. Thus, 
NMFS considers it appropriate to examine the presence of Atlantic 
herring and their role as a forage species for BFT.
    Comment 19: NMFS should not draw too many conclusions on less than 
complete data. HMS species are ocean-wide. NMFS needs to get the 
international forum involved. They have used very progressive research 
techniques. Predator-prey relationships are important to every species.
    Response: NMFS has been cautious in the interpretation of data 
based largely on presence or absence (level 1). While there is a great 
deal of ongoing research to identify and describe EFH, in many 
instances the research is localized or regional in nature, whereas HMS 
exhibit trans-regional movement and migrations. This makes identifying 
and describing EFH for HMS particularly challenging. For example, even 
though researchers may identify an area in the Gulf of Mexico as EFH 
for a particular species, those habitat characteristics may not 
necessarily constitute EFH for the same species in other regions. 
Furthermore, NMFS can only identify and describe EFH within the U.S. 
EEZ, pursuant to the Magnuson-Stevens Act.
    Comment 20: The definition of EFH for Atlantic HMS should be 
modified to include the geographic range of the species and to add the 
availability of forage for HMS in critical areas, in time and space.
    Response: The EFH guidelines require EFH to be distinguished from 
the geographic range of the species. The principle of the EFH 
provisions in the Magnuson-Stevens Act was to identify only those areas 
that are essential for feeding, breeding, or growth to maturity, and 
not all areas where a particular species is present. For example, if 
only level 1 information is available, distribution data should be 
evaluated to identify EFH as those habitat areas most commonly used by 
the species. Level 2 through 4 information, if available, should be 
used to identify EFH as the habitats supporting the highest relative 
abundance, growth, reproduction, or survival rates within the 
geographic range of a species. The geographic range for HMS is 
extremely large and would likely result in identifying all areas in the 
EEZ as EFH. Due to the vastness of such an area, it would be difficult 
to propose effective conservation measures. Narrowing or refining the 
extent of EFH can improve NMFS's ability to focus its conservation and 
management efforts on those habitats most important to the health of 
the managed species. NMFS agrees that forage species may be an 
important component of HMS EFH and has taken steps to identify those 
areas.
    Comment 21: Shark pupping and nursery areas remain unprotected. 
Conserving shark habitat is closely linked with state cooperation. NMFS 
should continue to fund and encourage research into shark EFH and to 
publish and distribute the results of such studies.
    Response: NMFS disagrees that shark pupping and nursery areas 
remain unprotected. In 2005, NMFS implemented a time/area closure off 
North Carolina in shark pupping and nursery areas to reduce the bycatch 
and mortality of neonate (newborns) and juvenile sandbar sharks as well 
as all life stages of prohibited dusky sharks. While there are many 
other areas that may not have the same level of protection, NMFS 
currently closes the large coastal shark (LCS) fishing season from 
April through June to reduce impacts on pregnant females who may be 
moving into coastal areas for pupping. Many states have implemented a 
similar closure of state waters for LCS shark fishing during these 
months consistent with the Federal regulations. Finally, most HMS gears 
have little or no impact on HMS EFH. Bottom longline gear is the only 
HMS gear that may affect hard bottom habitat such as corals and 
sponges, but many shark pupping and nursery areas are located outside 
of these habitat types. NMFS continues to fund shark research, such as 
surveys conducted through the Cooperative Atlantic States Shark Pupping 
and Nursery Areas (COASTSPAN) and a similar survey in the Gulf of 
Mexico (GULFSPAN), and will continue to distribute the results of such 
studies.
    Comment 22: NMFS must continue to recognize that these HMS must be 
conserved through out their range internationally. Assumptions made on 
partial information may not necessarily be valid Atlantic-wide.
    Response: NMFS agrees that it is important to consider habitat 
conservation measures throughout the range of HMS which may include 
international waters, particularly for tunas, swordfish, billfish, and 
pelagic sharks. NMFS has taken steps in the past to raise the level of 
awareness of the importance of certain habitats such as Sargassum at 
ICCAT, and will continue to try to lead the effort in promoting 
conservation of HMS EFH. However, as discussed in an earlier response, 
NMFS is only authorized to identify and describe EFH within the U.S. 
EEZ pursuant to the Magnuson-Stevens Act.

Economic and Social Impacts

    Comment 1: The high fuel costs are having a tremendous negative 
economic impact on all U.S. commercial fisheries. While prices for fuel 
and fuel products have dramatically risen, the price of fish has nearly 
collapsed our markets far below the levels necessary for profitable 
operations, due in part to a flow of imports from largely unregulated 
sources.
    Response: NMFS recognizes that fuel prices have recently risen to 
above average levels and continue to fluctuate. The Agency is 
monitoring the impacts of high fuel costs and other expenses as part of 
ongoing cost and earnings data collection efforts in the HMS fisheries. 
The Agency encourages fishermen to participate in this data collection 
effort on a voluntary basis in order to improve the quality of 
information available on HMS commercial fisheries. The trend in ex-
vessel prices for HMS fish has varied by species and is detailed in 
Chapter 3 of the Final Consolidated HMS FMP. The flow of imports of 
many HMS products are managed by international agreements, include 
ICCAT and the supply of imports will vary based on market forces. 
Details regarding information concerning imports are also detailed in 
Chapter 3 of the Final Consolidated HMS FMP.
    Comment 2: Holding workshops for just owners and captains could 
have an impact on the market. A number of captains coming in at the 
same time to the workshop means they will end up fishing at the same 
time and bringing fish to the market at the same time.
    Response: NMFS acknowledges that holding workshops that bring 
together owners and captains at the same time could have an impact on 
local markets. As discussed in Chapter 4 of the Final Consolidated HMS 
FMP regarding workshops, the Agency plans to minimize these impacts by 
timing workshops to coincide with closed seasons, moon phases, and 
other events that normally are down times for local HMS fishing 
operations where workshops will be held. Fishermen will also have the 
option of attending workshops in other neighboring regions on different 
dates.
    Comment 3: NMFS received comments emphasizing the economic 
importance of recreational fishing for HMS and concern regarding the 
economic impacts additional regulations could have on the recreational 
sector of local economies. Comments include: fishing is a key part of 
the whole coastal economy and

[[Page 58133]]

NMFS should take care not to over-regulate; tourists have many options, 
and may choose not to fish if the regulations are too burdensome and 
decrease enjoyment; the Mid-Atlantic $500,000 tournament brings over 
2,000 people to Cape May County who will eat, sleep, and shop in this 
tourism dependent area for the length of the tournament spending an 
estimated $450,000 in lodging alone and this event is very important to 
this tourism driven economy, providing jobs for year-round residents 
and students who earn college money during the summer months; and the 
economic value of recreational fishing is much greater than that of 
commercial fishing, and according to a 2001 United States FWS report, 
the value of the recreational fishery is $116 billion.
    Response: NMFS recognizes the economic importance of recreational 
fishing for HMS, including its impact on tourism, lodging, and local 
employment. Chapters 3 and 4 of the Final Consolidated HMS FMP have 
sections regarding billfish that provide extensive information 
regarding the economic importance of recreational anglers and 
tournaments.
    Comment 4: We are disturbed by the lack of any economic data or 
references for the recreational sector. This indicates a lack of 
concern for the recreational sector and ignores the enormous economic 
impact of this sector.
    Response: NMFS has taken measures to improve the amount of economic 
data and references regarding the recreational sector of the HMS 
fishery. This information is detailed in Chapters 3 and 4 regarding 
billfish, and Chapter 4 regarding authorized gear. Direct measures in 
this HMS FMP regarding the recreational sector include, but are not 
limited to, the authorization of speargun fishing for Atlantic BAYS 
tunas, improving BFT quota management, and improving information 
gathering by requiring vessel owners to report non-tournament 
recreational landing of swordfish and billfish. The speargun 
authorization was designed specifically to enhance economic 
opportunities associated with HMS recreational fishing sector.
    Comment 5: The Draft Consolidated HMS FMP does not discuss the 
socioeconomic impact to the recreational fishing sector. The fishing 
and boating industry is essential. Nationally, it generates $34 billion 
annually, which is more than the longliners. The Destin Charterboat 
fleet has a study that it generates $134 million annually to the local 
economy. A 2003 article in the Destin Log quotes a Haas Center for 
Business Research and Economic Development at the University of West 
Florida study, which says that the Charterboat fleet alone has a $349 
million economic impact on Okaloosa and Walton counties.
    Response: The HMS FMP assesses the impacts of regulatory 
alternatives on the HMS recreational fishery. Chapter 3 provides a 
detailed discussion of the socioeconomic impacts of the recreational 
HMS fleet. A full assessment of the total economic impacts of all 
recreational fishing is beyond the scope of this FMP.
    The Agency notes the Destin Charterboat fleet study on the impacts 
of that fleet on the local economy. However, the impact of the HMS 
portion of the Destin Charterboat fleet is not discernable from that 
study and thus only represents a portion of the $134 million total 
annual impact of recreational fishing on the local economy.
    Comment 6: In 1989, the SAFMC documented the HMS commercial 
fisheries above the $100 million threshold. NMFS has a range of values 
in various documents but certainly below $40-45 million ex-vessel 
value. Who is responsible for the economic losses over $100 million 
from unnecessary and cumulative regulatory discard policies?
    Response: A combination of long-term market forces, biological 
changes to species populations and necessary regulatory activities have 
had an impact on the ex-vessel value of the HMS fisheries. In Chapter 3 
of the Final Consolidated HMS FMP, the Agency notes that the ex-vessel 
value of the HMS fisheries has been estimated to be between $44 and $92 
million over the past six years.
    Comment 7: The information in the community profiles is so dated 
that they do not present an accurate current portrayal, at least 
concerning the HMS fisheries, which has very rapidly declined since the 
implementation of the 1999 HMS FMP measures, especially the time/area 
closures implemented in 2000.
    Response: While information in community profiles included in this 
document are now several years old, it represents the best available 
information and includes the latest U.S. Census data from 2000. 
However, NMFS intends to update the community profiles. Chapter 9 
documents a list of communities that need to be further examined. The 
Agency recently published a solicitation to update these profiles.
    Comment 8: In terms of social and economic issues, the data need to 
be standardized to recent dollars. I am troubled by NMFS staying with 
limited knowledge. There is additional work that can be done to 
understand social and economic changes. There are lots of other things 
that can be done to understand how people are impacted. Recreational 
data is a whole area lacking data. The cumulative impacts section is 
the soft underbelly of this plan. You need to work on this section. It 
characterizes the impacts without providing much evidence of 
assessment. NMFS uses soft language. NMFS does not know much about the 
people that are being regulated, and that is a problem.
    Response: Economic data was standardized to 2003 dollars in the 
Draft Consolidated HMS FMP and to 2004 dollars in the Final 
Consolidated HMS FMP using the Consumer Price Index (CPI-U). NMFS has 
taken measures to enhance the information available regarding social 
and economic changes. The Agency has added information regarding 
charter boat rates for HMS trips and angler expenditure data. Other 
research projects throughout the Agency regarding the impacts of the 
2005 hurricanes and a recreational fishing survey currently being 
conducted will further enhance the Agency's knowledge of the 
characteristics of the regulated community.

Consolidation of the FMPs

    Comment 1: NMFS received comments in support and in opposition to 
the consolidation of the FMPs. Those in support included: we support 
consolidation of the FMPs contingent on preserving the objectives of 
the Atlantic billfish plan and the original objectives pertaining to 
swordfish and traditional swordfish handgear (harpoon and rod-and-reel) 
fisheries; and we had concerns that several of the most important 
objectives from the billfish FMP had been left out, but we are pleased 
that NMFS has addressed those concerns by including them in this draft. 
As a result, we now support the consolidation. Those comments opposed 
to the consolidation include: The GMFMC and others recommend that the 
HMS and Billfish FMPs and APs be kept separate; the GMFMC and others 
noted that the Billfish FMP is primarily a recreational FMP whereas the 
Atlantic Tunas, Swordfish and Sharks FMP is both recreational and 
commercial; the U.S. billfish fisheries are unique and recreational 
only while swordfish, tunas, and sharks are managed to utilize country-
specific quotas; the billfish fishery is the only HMS fishery to 
practice catch-and-release; those whose efforts have saved and 
conserved these species should govern it; Atlantic

[[Page 58134]]

billfish fishery is the most valuable fishery in the country and ought 
to retain its distinct and separate status; I have some concerns 
regarding the consolidation of FMPs and managing billfish for maximum 
sustainable yield, when it is primarily a catch-and-release fishery, as 
no social or economic impacts are assessed; Puerto Rico Game Fish 
Association opposes the consolidation due to the recreational nature of 
the billfish fishery and because they do not fish for shark or tunas in 
tournaments. They are concerned that by combining plans, billfish will 
be viewed as a bycatch species; tuna and other offshore ``meat fish'' 
species should not be ``consolidated'' with billfish in regulatory 
legislation; tunas have been traditionally treated as fish to be 
harvested, not as a ``catch-and-release'' species, and they should have 
the issues that concern them addressed separately from the unique 
circumstances concerning marlin and sailfish; economic expenditures 
involved in the bluefin tuna fishery are just as important as that in 
the marlin fishery; I favor more micro-management rather than one FMP 
because it takes so long for changes to occur if everything is 
consolidated. This way, any particular species will need an entire FMP 
to take regulatory action; combining fishery management plans is an 
example of how you prejudice your research and analyses. The longline 
fishermen come in and take the bait that the billfish seek reducing the 
number of billfish coming in to areas that were once critical to their 
life history. A billfish FMP approach would have been to look at bait 
removal or spawning and nursery areas.
    Response: NMFS agrees that commercial fisheries aim to fully 
utilize a quota, and that many recreational fisheries practice catch-
and-release fishing. NMFS also agrees that the billfish fishery is 
unique in many aspects, and notes that the individual tunas, swordfish, 
and shark fisheries also have many unique aspects. NMFS believes that 
these differences between the commercial and recreational fisheries, 
and the different aspects of the individual recreational fisheries, can 
be accommodated in a consolidated FMP just as those differences are 
already accommodated in the existing Atlantic Tunas, Swordfish, and 
Shark FMP.
    Given the interconnected nature of the billfish fishery with other 
HMS fisheries, both on the water and in the regulatory and policy 
arenas, as well as the current permitting structure, changes in any of 
the non-billfish fisheries are likely to have impacts on the billfish 
fishery. Combining the FMPs should allow those changes to be analyzed 
more holistically with clear links among the impacts and issues between 
fisheries. For example, the Billfish FMP has only directed billfish 
measures while the FMP for Atlantic Tunas, Swordfish, and Sharks has 
bycatch reduction measures for billfish caught in the swordfish and 
tuna fisheries. Combining the FMPs will present the whole suite of 
billfish management measures in one document.
    NMFS believes that the decision in 1999 to combine the FMPs for 
tunas, swordfish, and sharks and to consolidate the actual regulations 
for all HMS, while a challenge at first, has led to a more holistic 
view of the fishery. This view has allowed the impacts of management 
measures on all sectors of tunas, swordfish, and shark fisheries to be 
fully analyzed whereas before, the links between these fisheries may 
not have been seen or analyzed so readily.
    By combining both FMPs now, NMFS is moving toward an ecosystem-
based approach to the management of HMS. Such an approach could 
ultimately benefit the resource and the people involved. As an example 
of potential links, at public hearings and in written comments, 
recreational billfish fishermen have noted that using circle hooks 
while trolling for blue marlin is impracticable. Similarly, at public 
hearings and in written comments, recreational tuna fishermen have 
asked for the use of circle hooks on rod and reel. In many cases, these 
fishermen fish for tunas and billfish, sometimes on the same trip. 
While NMFS could implement different regulations for recreational tuna 
trips and recreational billfish trips, management can be more effective 
and appropriate by considering the implications on all recreational HMS 
trips.
    Combining the FMPs will not change the composition of the APs in 
terms of representation by states and sectors (commercial, 
recreational, academic, or conservation). Also, combining the FMPs will 
not change the priorities of managing HMS, which are dictated by the 
Magnuson-Stevens Act and other domestic law. Combining the regulations 
should not affect the length of time it takes to amend or change the 
regulations. NMFS has not experienced any delays in changing the 
regulations for a specific species or gear since combining the tunas, 
swordfish, and shark FMPs. To the extent that combining the FMPs will 
allow NMFS and the public to see links between the fisheries easier, 
combining the FMPs should allow for more efficient and effective 
regulations.
    Comment 2: NMFS received a number of questions regarding the 
consolidation including: How will the consolidation change HMS 
management? How is this FMP easier to comprehend? I understand NMFS 
needs to consolidate, but how does this improve management?
    Response: Consolidating the FMPs will not change the existing 
regulations since they are already consolidated. Rather, consolidating 
the FMPs should change how HMS fisheries are viewed and the ecological 
and economic impacts analyzed. Having two separate FMPs can give the 
impression that the billfish fishery does not affect the tunas, 
swordfish, and shark fisheries and vice versa. This impression is 
incorrect. The same fishermen fish for and/or catch all HMS, often on 
the same trip. Thus, changes in the regulations need to be analyzed and 
considered across all HMS fisheries. For example, regulations that 
limit the recreational catch of one species or the gear that can be 
used could result in changes in recreational effort on other species or 
on social and economic impacts on the entire recreational community. As 
described in the response to Comment 1 above, consolidating the FMPs 
should allow NMFS to take a more holistic view of HMS fisheries and 
analyze these links. Those analyses should also be more apparent to the 
affected and other interested parties. Together the analyses and the 
public comment on the analyses of the impacts and the potential 
alternatives to a regulation should lead to more efficient and 
effective management.
    Comment 3: NMFS received comments regarding the combination of the 
APs. These comments included: the number of people on the Billfish AP 
should not decline; we support combining the APs; it is redundant, 
confusing and inefficient to have separate APs; the customary joint 
meetings of the HMS and Billfish APs over the past six years ensured an 
imbalance of representation by the recreational fishing sector and the 
result has been lopsided and ineffective advice; and the combined AP 
should be fair in representing the various user groups.
    Response: NMFS is not expecting to change the composition of the 
APs as a result of consolidating the FMPs. Once this final rule is 
published, NMFS intends to combine the APs in their entirety. Over 
time, NMFS will adjust the number of people on the AP and/or 
representing each group as needed to

[[Page 58135]]

ensure a balanced representation of all interested sectors and regions.

Objectives of the FMP

    Comment 1: The proposed objectives of the Consolidated HMS FMP are 
acceptable, including all suggested deletions and revisions, but it is 
not possible to continuously reduce bycatch and mortality. Logically, 
as the status of stocks improve, these numbers will likely increase. At 
some point, NMFS must recognize that incidental catches and mortality 
will occur and set practical and reasonable levels of allowable 
incidental catch.
    Response: Consistent with National Standard 9, NMFS aims to 
minimize bycatch to the extent practicable, and to the extent that 
bycatch cannot be avoided, minimize the mortality of such bycatch. As 
described in the time/area section above, NMFS continues to examine the 
impact of closures and other bycatch reduction measures to ensure the 
goals are met. Consistent with protected species incidental take 
statements, the results of the stock assessments, and the impact of 
circle hooks on bycatch rates, NMFS may consider modifying the existing 
time/area closures or changing existing trip limits of the incidental 
limited access permits.
    Comment 2: Regarding Objective 2, ``Atlantic-wide'' is a more 
appropriate term than using ``management unit'' because even a total 
prohibition on any domestic fishing effort would not recover the fish 
stock for most ICCAT species.
    Response: NMFS agrees with the comment and made the appropriate 
change to Objective 2.
    Comment 3: We are concerned about Objective 3, to reduce landings 
of Atlantic billfish in directed and non-directed fisheries. It is 
unnecessary to reduce directed landings that only come from the 
recreational sector.
    Response: Objective 3 does not address landings of Atlantic 
billfish. Rather, Objective 3 addresses bycatch in all HMS fisheries 
and post-release mortality of billfish in the directed billfish 
fishery.
    Comment 4: Objective 4, establish a foundation for international 
negotiation of conservation and management measure, sounds as though 
the intent would be to propose the creation of additional international 
management entities, other than ICCAT, creating a tremendous amount of 
unnecessary bureaucracy that ultimately weakens the efficient 
management of these important species. This objective needs to be 
clarified before final approval.
    Response: Objective 4 states that NMFS will establish foundations 
to work with other international organizations to manage Atlantic HMS. 
NMFS already works with, and intends to continue working with, several 
international organizations regarding Atlantic HMS including ICCAT, 
NAFO, FAO, and CITES.
    Comment 5: Regarding Objective 4, the old practice of ``the U.S. 
goes farthest first'' simply does not work, and often results in the 
U.S. being diminished in its capabilities and influence within ICCAT.
    Response: Objective 4 does not state that the U.S. should work 
unilaterally to rebuild or maintain Atlantic HMS stocks. Rather, 
Objective 4 builds in the concept that NMFS will work with 
international bodies, such as ICCAT, to rebuild or maintain sustainable 
fisheries.
    Comment 6: Objective 7 calls for the management of Atlantic HMS to 
achieve optimum yield and to provide the greatest benefit to the 
Nation, including food production. Atlantic billfish should not be 
managed with the intent to increase food supply and the 250 marlin 
landing limit is not managing in terms of optimum yield. This landing 
limit is not based on maximum sustainable yield, nor does it take into 
account relevant social, economic, or ecological factors. This 
objective should be reworded to say that Atlantic billfish will be 
managed to provide the greatest benefit to the nation with respect to 
recreational opportunities, preserving traditional fisheries to the 
extent practicable, and taking into account protection of marine 
ecosystems.
    Response: NMFS agrees that Atlantic billfish should not be managed 
with the intent to increase food supply. NMFS has reworded Objective 7 
to clarify its intent.
    Comment 7: Objective 12 calls for the promotion of live release and 
tagging of Atlantic HMS. We do not believe it is in the Nation's best 
interest to promote live release for all HMS of legal size and those 
caught within a legal season because any HMS poundage under the quota 
resulting from live release stands the likely fate of being transferred 
to a country that will harvest the difference, ultimately reducing the 
U.S. ICCAT quota. This objective should be reworded to state that NMFS 
would promote live release and tagging of Atlantic billfish and sub-
legal HMS.
    Response: NMFS acknowledges that this was not the intent and has 
reworded the objective to address this issue.
    Comment 8: Regarding Objective 12, all hook and line fishing post-
release mortality should be addressed.
    Response: NMFS believes that this concern is already addressed in 
Objective 12.
    Comment 9: NMFS should make the proposed deletions to Objectives 13 
and 14; however, if NMFS does not make these deletions, it must 
reevaluate its proposed revisions to Objectives 2, 4, 5, and 7.
    Response: While NMFS did suggest removing these objectives at the 
Predraft stage, NMFS did not propose removing them in the Draft 
Consolidated HMS FMP due to the concern expressed by the recreational 
billfish community regarding deleting two of the original objectives 
from the 1988 Billfish FMP. NMFS does not believe that these objectives 
conflict with objectives 2, 4, 5, and 7. Therefore, no changes to those 
objectives are needed.
    Comment 10: Please eliminate the word ``almost'' from Objective 14: 
``Optimize the social and economic benefits to the nation by reserving 
the billfish resource for its traditional use, which in the continental 
United States is almost entirely a recreational fishery.''
    Response: The word ``almost'' was an error and has been removed. 
The objective was been clarified to refer only to Atlantic billfish.
    Comment 11: Objective 16 needs to be rewritten or eliminated 
because there is no method for measuring over capitalization in the 
recreational fleet. Recreational fisheries should not be managed by 
fleet capacity and over capitalization.
    Response: NMFS has decided to delete Objective 16 for the reason 
stated by the commenter and other reasons, as explained in response to 
comment 12 below.
    Comment 12: Objective 16, the consideration of fishing effort, 
should not be explicit to commercial fisheries. Latent effort is only a 
problem in overcapitalized fisheries and the U.S. pelagic longline 
fishery is undercapitalized. NMFS needs to encourage latent pelagic 
longline effort to become active or reopen the ``directed'' swordfish 
permit category in a measured, incremental manner to allow new 
entrants.
    Response: NMFS has deleted Objective 16. While Objective 16 was an 
important part of the limited access program established in the 1999 
FMP, it does not apply to all HMS commercial fisheries. Instead, NMFS 
has reworded Objective 17 to create a management system to make fleet 
capacity commensurate with resource status.

[[Page 58136]]

    Comment 13: Regarding Objective 18, NMFS should not condone a 
reallocation that is contrary to the intent of the Magnuson-Stevens 
Act.
    Response: Objective 18 was combined with Objective 17 and addresses 
fleet capacity and resource status. This objective does not address 
reallocation contrary to the Magnuson-Stevens Act.

Comment Period/Outreach

    Comment 1: NMFS received several comments regarding the length of 
the comment period as a result of hurricanes. These comments are: due 
to the impacts of Hurricane Katrina on the fishing fleets in the Gulf 
of Mexico and the lack of communication with people in that area, NMFS 
should consider a substantial extension of the comment period and 
consideration of suspending the scheduled public hearings; a large 
portion of the longline fleet is damaged and without communications - 
they cannot respond to the proposal at this time; we are sensitive to 
extension of comment period to accommodate the Gulf of Mexico Area, but 
we do not want to see an overly lengthy delay in the process.
    Response: NMFS agrees that Hurricanes Katrina and Rita severely 
affected fishermen, infrastructures, communication, and communities in 
the Gulf of Mexico region. As a result, NMFS extended the comment 
period on the Draft Consolidated HMS FMP and proposed rule from October 
18, 2005, to March 1, 2006. NMFS also rescheduled three public hearings 
in the area from September/October to January and February. NMFS 
believes that this extension in the comment period and rescheduling of 
public hearings gave affected entities an opportunity to review and 
comment on the Draft Consolidated HMS FMP and its proposed rule without 
delaying the implementation of the management measures significantly.
    Comment 2: NMFS received a number of comments about the 
advertisement of public hearings and the Draft Consolidated HMS FMP 
including: many of the public hearings are not well publicized, which 
leads the Agency to miss a lot of key people at those hearings; a lot 
people at the fish pier did not know about this hearing; NMFS should 
hold additional hearings in the same areas; without better publication 
to increase participation, NMFS is not going to get enough comment from 
the people who are going to be affected by this rule; NMFS should 
improve its outreach to magazines; NMFS needs to buy mail and email 
lists of anglers from publicly available sources and send them meeting 
notices to ensure adequate public participation; NMFS should use the 
mailing and email addresses provided when applying for permits to 
notify the industry; NMFS has adequately informed us through various 
sources (e.g., internet, facsimile, and public hearing notices) of all 
germane and relevant issues, options, and comment deadlines; your 
notices are all fuzzy, full of Federal Register type language - they 
should be earlier in the process, more widely distributed, and focused 
on the user groups in simple language.
    Response: NMFS agrees that public participation and outreach 
regarding proposed or final management measures is critical to the 
management of HMS. NMFS attempts to notify all interested parties of 
all actions using a variety of methods. The official notification is 
through the Federal Register. The Federal Register is available on the 
web at http://www.gpoaccess.gov/fr/index.html. Alternatively, 
interested parties can go to http://www.regulations.gov to review and 
comment on all proposed rules and documents open for public comment 
throughout the Federal government. Documents can be searched by Agency, 
topic, and date. NMFS also releases information regarding proposed and 
final rules and fishing seasons for HMS through the HMS fax network. 
NMFS intends to develop an email system that will allow anyone to sign 
up to receive these information packages. These information packages 
are also usually published on Fishnews, an electronic newsletter 
produced weekly by NMFS. To sign up for this newsletter, go on the web 
to http://www.nmfs.noaa.gov. NMFS issues press releases, which the 
media can publish in fishing magazines and local newspapers, regarding 
public hearings and proposed rules. However, NMFS cannot require these 
sources of information to publish information regarding proposed rules 
or public hearings. NMFS has tried using the email addresses included 
in the permit application to provide HMS fishermen with information 
about their permits. Often times, the email addresses have proved 
incorrect and the information was not delivered. Nonetheless, NMFS is 
working to improve communication with constituents and is open to 
additional suggestions on how to improve outreach.
    Comment 3: I found the public hearing presentations completely 
frustrating with biomass, metric tons, and other words and numbers used 
as if I were in a marine biology class. At the end of the presentation, 
the billfish and tuna changes were slipped in as if to lull us into 
sleep so that the changes slip by unnoticed. It appeared as if the 
intent of the presentation was to confuse the average angler with 
statistical data.
    Response: NMFS agrees that information regarding stock status and 
quotas can be confusing. However, this information is the basis for 
many of the management measures that were proposed and will be the 
basis of many of the final management measures. Without an 
understanding of the basic information regarding life history, stock 
status, maximum sustainable yield, and other concepts, the reasons and 
impacts of all the alternatives considered cannot be explained. NMFS 
presented the information to explain the basis of any proposals or 
decisions and why one alternative was preferred over another. NMFS 
welcomes any specific comments on the presentations that would improve 
the clarity of the presentations.
    Comment 4: If NMFS accepts comments by email, the Agency should 
require Digital Certificates to authenticate that the comments were 
from the identified party and was not contaminated in transit.
    Response: NMFS accepts comments by email. To date, NMFS has not had 
any problems regarding authenticating the sender of the comment. 
However, NMFS will continue to examine this and other technological 
issues.
    Comment 5: Please limit your future rulemakings to fewer topics. 
Large documents like this one are too difficult for many of your 
constituents to comprehend.
    Response: NMFS agrees that large documents with many issues are 
difficult to understand. To the extent that rulemakings can be limited, 
NMFS will attempt to simplify and reduce the issues in the future. 
However, to some extent, rulemakings are dictated by priorities and the 
need to act on certain issues. Thus, some rulemakings may have more 
issues than others.

General

    Comment 1: NMFS received several comments on how the overall 
rulemaking process works. These comments include: NMFS needs to clarify 
if we have a choice or if the decision on these proposed actions is 
already made?; what agency is pushing for these changes?; there is an 
overriding opinion that NMFS does not listen during these comment 
periods; it is difficult for us to know how and where to get involved; 
during scoping, it would be nice to know that the information we 
provide is helping to form future regulations.
    Response: NMFS relies on public comment and participation at all 
stages when conducting rulemaking. The

[[Page 58137]]

comments received during scoping were crucial for defining the scope of 
this rulemaking and the alternatives considered. The issues explored in 
the rulemaking were not ``pushed'' by any particular agency. Rather 
they were considered as a result of the comments received during 
scoping and management needs as dictated by the Magnuson-Stevens Act 
and other domestic laws. Public comment at the proposed rule stage is 
critical in helping NMFS decide whether to implement certain measures. 
Often, as a result of public comment, NMFS decides not to implement or 
to redesign one or more of the proposed management measures. For 
example, in this rulemaking NMFS is not implementing several proposed 
measures including removal of the Angling Category North/South line and 
clarifying the commercial definition of greenstick. When considering 
public comments, NMFS does not look at the quantity of public comments 
received but the quality and issues raised in each individual comment. 
Every written comment and every statement made at a public hearing is 
considered. In every final rule, NMFS responds to the comments received 
during the public comment period. At that time, interested parties can 
see how their comments affected the decisions of the Agency.
    Comment 2: I am opposed to management via Petition for Rulemaking. 
It undermines the role of the Advisory Panels and the International 
Advisory Committee.
    Response: The public may petition an agency for rulemaking. NMFS is 
required to respond to any petition that is filed. This process does 
not undermine the role of the Advisory Panel or the ICCAT Advisory 
Committee as these parties can comment on the adequacy of the Petition 
for Rulemaking, as appropriate, or any rulemaking that results from the 
Petition.
    Comment 3: NMFS received several comments regarding the 
relationship of the FMP to the Magnuson-Stevens Act including: Will 
this FMP be consistent with the revisions/reauthorization of the 
Magnuson-Stevens Act?; NMFS is not following its own rules in regard to 
National Standard 4 of the Magnuson-Stevens Act (fair and equitable 
distribution of fishing privileges).
    Response: The Final Consolidated HMS FMP will be consistent with 
the current Magnuson-Stevens Act, including the National Standards. In 
regard to National Standard 4, none of the selected alternatives 
discriminate between residents of different states. While NMFS is 
tracking congressional actions to reauthorize the Magnuson-Stevens Act, 
it cannot predict the outcome of the reauthorization process. If the M-
S Act is reauthorized, NMFS will implement appropriate changes in a 
future rulemaking.
    Comment 4: What management measures are applicable to the 
Caribbean?
    Response: All management measures for HMS are applicable to 
fishermen fishing in the Atlantic, including the Gulf of Mexico and the 
Caribbean.
    Comment 5: NMFS is allowing so much overfishing of one species 
after another, that our children have no expectation of there being any 
fish in the ocean when they grow up.
    Response: While overfishing does continue for some species, other 
species are being rebuilt. In the case of HMS, since the 1999 FMP, 
blacktip sharks have been rebuilt and other species such as bigeye tuna 
and Atlantic sharpnose sharks are still considered healthy. NMFS 
continues to monitor the status of all HMS and take appropriate action, 
consistent with the Magnuson-Stevens Act and ATCA, to prevent 
overfishing, rebuild overfished stocks, and maintain optimum yield.
    Comment 6: For any HMS management program to be effective, fair, 
and reasonable to U.S. fishermen and anglers, international 
transference and comparable compliance of management mitigation 
measures must be adopted by the global HMS fishing community. Our 
fishermen practice and embrace the most effective and stringent 
conservation measures in the world and U.S. fishermen and anglers 
suffer economic hardships and fishing days due to these measures. 
However, few international partners practice any conservation at all. 
The U.S. needs to continue to lead the conservation initiative, but it 
is unfair to assume that other countries will follow our example if we 
only put our fishermen out of business or deny them the opportunity to 
fish for quota.
    Response: NMFS agrees that effective management of HMS requires 
international cooperation and compliance to management measures. NMFS 
also agrees that the U.S. needs to indicate to other nations that U.S. 
fishermen can meet their conservation goals while also remaining 
economically viable. NMFS and the Department of State continue to work 
through ICCAT to enforce compliance of existing management measures and 
end illegal, unreported, and unregulated fishing. Additionally, in this 
rulemaking, NMFS either provides additional opportunities for U.S. 
fishermen to take the quota (e.g., changing the time periods and 
subquotas for the General category) or provides the groundwork for 
future opportunities (e.g., establishes criteria to modify existing 
time/area closures).
    Comment 7: Remove ``including landings'' from the third bullet on 
the bottom half of page 1-40 of the Draft Plan. The emphasis is 
properly on reducing mortality and post-release mortality.
    Response: This comment refers to one of the specific goals of this 
rulemaking, not one of the objectives of the FMP. NMFS agrees and has 
reworded the goal accordingly.
    Comment 8: In the Management History (section 1.1), include ATCA 
provision, ``shall not disadvantage U.S. fishermen relative to their 
foreign counterparts.''
    Response: That provision (evaluate the likely effects of 
conservation and management measures on participants and minimize, to 
the extent practicable, any disadvantage to U.S. fishermen in relation 
to foreign competitors) is not a requirement of ATCA. It is a 
requirement under the Magnuson-Stevens Act (16 U.S.C. 1854 (g)(1)(B)). 
A description of this provision is included in the description of the 
management history in Chapter 1 and the requirements of the Magnuson-
Stevens Act in Chapter 11 of the HMS FMP.
    Comment 9: In the section of Chapter 1 regarding the pre 1999 
Atlantic tunas management section, NMFS needs to clarify that the 
longline fishery does not seek a directed fishery on the currently 
overfished stock of bluefin tuna.
    Response: This section has been moved to Chapter 3 in the Final 
Consolidated HMS FMP. Together, this section along with the other 
sections in Chapter 3 regarding the landings by gear and the status of 
the stocks indicate that the pelagic longline fishery is prohibited 
from targeting bluefin tuna.
    Comment 10: The HMS longline fishery was unaware of NMFS's 
``technical revisions'' following completion of the HMS FMP in 1999, 
which changed the Atlantic Tunas longline permit to a ``limited 
access'' status. NMFS should create an opportunity for longline vessels 
with valid swordfish and shark permits to obtain an Atlantic Tunas 
longline permit. This will help to reduce or eliminate unnecessary 
discards and encourage the return of pelagic longline fishing effort.
    Response: As described in the 1999 Atlantic Tunas, Swordfish, and 
Shark FMP, NMFS made the Atlantic tunas longline permit a limited 
access permit, along with the swordfish and shark permits, at the 
request of the fishing

[[Page 58138]]

industry in order to close a potential loophole in the regulations. The 
technical revisions to the rule implementing the 1999 FMP clarified 
that intent and did not make any substantial changes. Nonetheless, NMFS 
intends to conduct a rulemaking to reform certain aspects of the HMS 
permitting system and may consider changes based on this concern in 
that rulemaking.
i. Recreational
    Comment 11: NMFS received general comments related to recreational 
fishing including: I will not stand for the over-regulation of 
recreational fishing; and, NMFS has done nothing for the recreational 
fisherman but give him table scraps and ruined fishery resources.
    Response: NMFS recognizes the value and important contribution of 
recreational fishermen throughout HMS fisheries. The Agency continues 
to take numerous steps to recognize this critical sector of the 
fishery, while ensuring that recreational effort is properly accounted 
for and managed to assist stock recovery. Comments from the 
recreational sector, and others, were fully considered in deciding upon 
the management measures in the Final Consolidated HMS FMP. For example, 
NMFS did not select the alternative that would have prohibited landings 
of white marlin based, in part, upon comments indicating that this 
alternative could produce sizeable adverse social and economic impacts 
upon recreational fishermen. NMFS believes, however, that the selected 
alternative to require circle hooks when using natural baits in 
billfish tournaments is appropriate, and is not overly burdensome. Many 
HMS recreational anglers already practice catch and release fishing for 
white marlin and other species. However, the mortality rate associated 
with catch and release of these species is now estimated to be 
substantially higher than previously thought. The use of circle hooks 
when deploying natural bait in billfish tournaments is an important 
step towards reducing billfish fishing mortality, and will help to 
maintain the highest availability of billfishes to the United States 
recreational fishery. Billfish tournament anglers must comply with the 
new circle hook requirement so that these species may better survive 
the catch and release experience. NMFS strongly disagrees with the 
comment that recreational fishermen have been given table scraps and 
ruined fishery resources. Numerous examples could be cited to 
demonstrate the balanced consideration that is given to recreational 
HMS fishery interests. Foremost, the recreational sector is, and will 
continue to be, prominently represented on the HMS Advisory Panel. 
Additionally, several large areas are closed year-round or seasonally 
to commercial HMS longline vessels, whereas recreational anglers retain 
full access to these areas. The recreational sector has benefited 
greatly from this access, and is currently enjoying the resurgence of 
recreational fishing for swordfish and other species in these areas. 
Also, the commercial sale of Atlantic billfish has been prohibited 
since 1988. To reinforce the recreational nature of this fishery, this 
rule prohibits the possession or retention of any Atlantic billfish for 
vessels issued a commercial permit and operating outside of a 
tournament. This rule also prohibits fishing for HMS in the Madison-
Swanson and Steamboat Lumps Marine Reserves, with the notable exception 
that high-speed trolling is allowed during the prime recreational 
summer fishing months.
    Comment 12: Recreational fishing should be truly recreational 
fishing. A CHB vessel operator knows where to go fishing, so it gives 
the recreational fisherman onboard an advantage. CHB vessel operators 
use this expertise to sell the catch from the recreational fishery. 
This practice gives access to the recreational fishery where only the 
commercial fishermen typically go. The CHB vessel is already getting 
paid to go out there, he does not need to also get money from selling 
the tunas. NMFS should decrease bag limits on charter/headboats to 
avoid incentive to sell recreationally caught fish.
    Response: NMFS regulates and manages HMS CHB permit holders 
differently than HMS recreational or commercial permit holders due to 
the unique characteristics of the CHB sector. These vessels may be both 
recreational and commercial, so the regulations governing them are 
necessarily different. For instance, some CHB captains may fish 
commercially for tunas on one trip, and then fish under recreational 
retention limits when carrying paying passengers the next day. NMFS 
believes that the regulations governing the sale of HMS from CHB 
vessels are appropriate. CHB vessels that also possess commercial 
limited access permits are subject to recreational catch limits when 
engaged in for-hire fishing, but may sell tunas (except for BFT caught 
under the recreational angling category regulations, i.e., BFT between 
27 inches and 73 inches CFL or trophy fish greater than 73 inches) on 
non for-hire trips. CHB vessels may sell sharks and swordfish only if 
the appropriate commercial shark and/or swordfish permits have also 
been issued to the vessel.
ii. Commercial Fishery
    Comment 13: The U.S. should inflict penalties and tariffs on 
countries that do not follow similar rules as the U.S.; push to stop 
longlining worldwide; stop all longlining in the United States now; and 
make it illegal to import any fish from other countries that longline, 
do not follow conservation limits, and do not require longlines to only 
use circle hooks.
    Response: The U.S. has been a leader internationally in promoting 
fishing practices that reduce bycatch and promote conservation of HMS 
and other fish stocks. Pelagic longlining gear is not being prohibited 
at this time due to reasons discussed in the response to Comment 36 of 
the Time/Area Closures section. NMFS believes that international 
cooperation, including sharing science and technology such as circle 
hooks and bycatch reduction gears, is the primary and most effective 
means to achieve conservation goals. The U.S. will continue to promote 
these types of measures both domestically and internationally, and will 
encourage efforts by other countries to implement similar measures.
    Comment 14: Are fish that are caught by commercial permit holders 
and retained for personal use counted against the quota?
    Response: This rule prohibits vessels issued commercial permits and 
operating outside of a tournament from possessing, retaining, or taking 
Atlantic billfish from the management unit. Under this rule, only 
fishermen issued either an HMS Angling or Charter/headboat permit could 
take or possess Atlantic billfish. Additionally, General category 
fishermen fishing in a registered tournament could take and possess 
Atlantic billfish. In the case of General category fishermen 
participating in a tournament, the tournament operator must report any 
billfish landed in the tournament. Charter/headboat vessel owners are 
required to report billfish under the recreational reporting 
requirements. Atlantic marlin landings are counted against the 250-fish 
landing limit. All landings from commercial shark or swordfish vessels 
must be reported in the HMS logbook, if selected for reporting, 
regardless of whether the fish are retained for personal use. Sharks 
landed by commercial permit holders are counted against commercial 
quotas. A swordfish from the North Atlantic stock caught prior to a 
directed fishery

[[Page 58139]]

closure by a vessel with a directed or handgear swordfish permit is 
counted against the directed fishery quota. A North Atlantic swordfish 
landed by a vessel issued an incidental swordfish permit or a Charter/
headboat permit or landed after the directed swordfish fishery is 
closed is counted against the incidental catch quota. Owners of 
Atlantic Tunas vessels must also report landings in the HMS logbook, if 
selected for reporting. There are no quotas for bigeye, albacore, 
yellowfin, or skipjack tunas. BFT landed but not sold must be reported 
and are applied to the quota category according to the permit category 
of the vessel from which it was landed.
    Comment 15: All commercial vessels that have not landed a fish in 
the past three years should be ``retired.''
    Response: Commercial fishermen can take time away from fishing for 
certain species for numerous reasons including repairs or replacement 
of vessels, a desire to help rebuild the stocks, or to pursue 
opportunities in other fisheries. Many PLL or shark fishermen have 
currently stopped fishing for HMS due to restrictions such as the time/
area closures and short shark seasons. Additionally, for some 
commercial fisheries, such as the BFT General category fishery, the 
quota does not allow every permit holder to land a fish every year. 
Thus, some vessels may not land a BFT for several years. In some 
fisheries, such as those that are severely overfished, such a measure 
may be needed to ensure that latent permit holders cannot re-enter the 
fishery and increase effort. NMFS may conduct a rulemaking in the 
future to reform the current permit structure. At that time, NMFS may 
consider measures such as this one, as necessary.
    Comment 16: NMFS heard two opposing comments related to commercial 
vessels affected by the hurricanes last fall. These comments were: NMFS 
needs to provide buyout programs for the commercial fishery, especially 
now that vessels active in this fishery have been affected by hurricane 
Katrina; and NMFS should not subsidize the replacement of commercial 
vessels affected by hurricane Katrina.
    Response: NMFS is still analyzing the impacts of Hurricanes Rita 
and Katrina on fishermen and communities in the Gulf of Mexico. At this 
time, NMFS does not know the extent of lasting damage or the most 
appropriate measures needed to rebuild the affected fisheries, either 
commercial or recreational. NMFS will take the appropriate actions in 
the future, as needed.
iii. Longline
    Comment 17: Why are there no proposed measures for the commercial 
PLL fishery in the Draft Consolidated HMS FMP?
    Response: Many measures in the HMS FMP could have ancillary impacts 
on PLL fishery such as the selected alternative C3, going to ICCAT 
regarding a rebuilding plan for northern albacore tuna, and the 
selected alternative G2, the transition to a calendar year fishing 
years. There are also alternatives that specifically consider the PLL 
fishery. All of the alternatives in the time/area closure section, 
except for alternative B6, were considered for the PLL fishery in the 
Draft Consolidated HMS FMP. NMFS is not selecting, at this time, to 
implement any new closures, except the complementary measures in the 
Madison-Swanson and Steamboat Lumps Marine Reserves, which will 
prohibit fishing for and possessing all HMS by all HMS gears in the 
marine reserves from November through April (except when transiting and 
the gear is stowed). The possession of Gulf reef fish in these areas is 
already prohibited year-round (except when transiting and the gear is 
stowed). From May through October, surface trolling will be the only 
allowable HMS fishing activity. No new measures were proposed at this 
time because there are already a number of restrictions, including 
time/area closures, gear requirements, VMS, observers, and a host of 
other measures required to reduce bycatch in the PLL fishery. However, 
NMFS will continue to examine the issue of targeted time/area closures 
to further reduce bycatch in the future. Other alternatives that could 
specifically affect PLL fishermen include workshops, changes to the 
definition of PLL gear, modifications to the definition of the East 
Florida Coast closed area, and the decision regarding the 25 mt BFT 
available in the NED.
    Comment 18: NMFS should allow the practice of using live baits on 
PLL gear again.
    Response: Currently in the Gulf of Mexico, vessels with PLL gear 
onboard are prohibited from deploying or fishing with live bait, 
possessing live bait, or setting up a well or tank to maintain live 
bait. This prohibition was implemented in lieu of closing the western 
Gulf of Mexico through a final rule published on August 1, 2000 (65 FR 
47214), and became effective on September 1, 2000. It was established 
to reduce the bycatch of billfish on PLL gear, and this remains an 
important priority. However, given the recent mandatory requirement for 
PLL vessels to possess and deploy only large circle hooks and to carry 
release and disentanglement gear, a reexamination of the live bait 
prohibition may be warranted. Before this issue could be considered in 
a future rulemaking, it would be beneficial to obtain additional gear 
research information, such as bycatch rates and post-release mortality 
rates of billfish on PLL gear deploying large circle hooks with both 
live and dead baits.
    Comment 19: Without a relaxation of the restrictions, the longline 
fishery will continue to fail -- not due to stock declines but due to 
over-restrictions.
    Response: The PLL fishery has decreased in size over time possibly 
due to current time/area closures but also due to other factors, which 
are out of NMFS control (e.g., hurricanes, fuel prices, etc.). At this 
time, NMFS is not implementing any new closures, except the 
complementary measures in the Madison-Swanson and Steamboat Lumps 
Marine Reserves. The U.S. has not been able to catch its swordfish 
ICCAT quota allocation. While NMFS considered modifications to current 
time/area closures, none of the modifications considered would have 
resulted in a large enough increase in target catch to alleviate 
concerns over uncaught portions of the swordfish quota. NMFS is 
investigating ways to revitalize the swordfish fishery and is waiting 
on the results of the ICCAT stock assessments to help determine 
domestic measures with regard to management of these species.
iv. Swordfish
    Comment 20: NMFS received comments regarding the trade of swordfish 
including: Is there anything in the Draft Consolidated HMS FMP 
regarding the import of swordfish from countries that have exceeded 
their ICCAT quota? This exceedance has been a perennial problem at 
ICCAT Advisory Committee Meetings and it is annoying when fishermen say 
that this type of fishing encroaches on ``our'' fishery when it is the 
fishery as a whole, not only the U.S. swordfish fishery; U.S. swordfish 
fishermen should be provided reasonable opportunity to harvest quota - 
U.S. has a high demand that U.S. fishermen should have an opportunity 
to fill; NMFS should prohibit all imports on swordfish and tuna.
    Response: ICCAT is an international organization that addresses 
quota overages and penalties associated with those overages through a 
process that requires the adoption of recommendations and then 
implementation of those recommendations by contracting parties. The 
U.S. is a contracting party

[[Page 58140]]

at ICCAT and participates in the evaluation of compliance with quotas. 
Quota compliance is an important issue right now for the U.S. during 
ICCAT negotiations. However, ICCAT would be the lead in imposing trade 
sanctions or other appropriate penalties on a particular country if 
found to be violating ICCAT agreements. Such actions have been taken by 
ICCAT in the past. Also, NMFS agrees that overharvests of ICCAT quotas 
affect the entire swordfish fishery and not just the U.S. allocation, 
and it is important to manage the fishery as a whole and not to become 
too focused on just the U.S. quota. NMFS is currently working on 
different ways to revitalize the U.S. swordfish fishery. An SCRS stock 
assessment is scheduled for 2006, and the results from this stock 
assessment will help determine domestic measures for this species.
    Comment 21: NMFS received comments regarding the need to revitalize 
the PLL and/or swordfish fishery including: in the face of our 
consistently rolled-over quota and fully-rebuilt swordfish stock, why 
are there no provisions to allow for U.S. fishermen to get newer, more 
efficient, and safer vessels?; NMFS should eliminate the vessel 
upgrading restrictions to help revitalize the PLL fishery; what is 
there in the Draft Consolidated HMS FMP that would allow the U.S. ICCAT 
Delegation to convince foreign ICCAT Delegations that the U.S. is 
serious about revitalizing its swordfish fishery in order to utilize 
the full U.S. ICCAT swordfish quota?; NMFS should make reasonable 
adjustments to the offshore borders of existing closed areas; eliminate 
the limited access upgrading criteria; re-evaluate the use of ``live 
bait'' for circle hooks only; provide a more reasonable trip limit for 
incidental PLL to eliminate wasteful and unnecessary regulatory 
discarding; re-open the swordfish handgear fisheries, especially in 
light of the inability of the U.S. to land its current ICCAT quota; the 
U.S. is looking at a stockpile for swordfish and BFT; if the U.S. does 
not have any quota it will be difficult to have a voice in 
international negotiations; $86 million of swordfish was not caught; 
this domestic fleet is so over restricted that it cannot harvest the 
quota; count recreational swordfish live and dead releases as well as 
commercial catches when negotiating the U.S. quota at ICCAT; eliminate 
the recreational bag limit to be replaced with a higher minimum size of 
47 inches LJFL and authorize anyone holding a general category tuna 
permit to land swordfish; increase the number of swordfish that may be 
kept by swordfish incidental permit holders in the Gulf of Mexico or 
convert all Gulf of Mexico incidental permits to directed permits; 
adjust the existing PLL time/area closures within the U.S. EEZ in 
consideration of a fully rebuilt North Atlantic swordfish stock and the 
U.S. swordfish fishery's ability to harvest its ICCAT quota share; 
longline fishermen made great sacrifices to rebuild this fish stock and 
have been the world's leading innovators of ``bycatch friendlier'' 
pelagic hook and line fishing -- NMFS must take action to revitalize 
this fishery.
    Response: For the past several years, the swordfish fishery has 
been unable to catch the full quota. This is a change from the fishery 
in the 1990s where the quota was usually taken. In 1997, the quota was 
overharvested and the fishery was closed. There are a number of 
possible explanations for the inability of the fleet to harvest the 
quota including time/area closures to PLL (the primary gear used to 
harvest swordfish), the reduction in permit holders through limited 
access, the restrictions on vessel upgrading, the incidental take 
limits, and the paucity of reporting from the recreational sector. 
Given the anticipated rebuilt status of swordfish (the next stock 
assessment is scheduled for September 2006), a number of fishermen and 
others have asked NMFS to revitalize this fishery. Many people are 
concerned that without a plan to revitalize the fishery, the quota will 
be taken from the U.S. and given to other countries, many of which do 
not view conservation as the U.S. does. NMFS is also concerned about 
the status of this fishery and its quota. While this rulemaking was not 
intended to revitalize the swordfish fishery, many of the actions will 
allow for actions to be taken in the future. For example, NMFS did not 
choose to modify any existing closures at this time but the selected 
criteria will allow for modifications to the closed areas and/or 
experiments to test gears or other fishing methods in the closed areas. 
Additionally, NMFS is defining buoy gear and clarifying the difference 
between this commercial gear and the primarily recreational gear of 
handline. Depending on the stock assessment and the upcoming ICCAT 
recommendations, NMFS expects to engage in rulemaking in the near 
future that could help revitalize the swordfish fishery. Any effort to 
revitalize the fishery must take care not to increase sea turtle takes 
(the PLL fishery has a jeopardy conclusion under ESA for leatherback 
sea turtles), marine mammal interactions (there is a PLL Take Reduction 
Team that is considering methods of reducing interactions under the 
Marine Mammal Protection Act), and catches of marlin, BFT, and other 
overfished species. Over time, consistent with the objectives of this 
FMP, the Magnuson-Stevens Act, Marine Mammal Protection Act, and the 
ESA, NMFS intends to revitalize the fishery so that swordfish are 
harvested in a sustainable and economically viable manner and bycatch 
is minimized to the extent practicable.
    Comment 22: NMFS received comments regarding the trip limit for 
swordfish incidental limited access permit holders. These comments 
included: NMFS must reevaluate the incidental swordfish trip limits in 
order to reduce or eliminate unnecessary discards by valid permit 
holders; there was an allowance of five swordfish in the squid fishery. 
If a swordfish comes aboard in a trawl, it is dead. Mid-water trawls 
are not directing or targeting swordfish. So, can there be an allowance 
for 15 swordfish in a mid-water trawl? It seems to be a waste to throw 
dead swordfish overboard.
    Response: The current trip limits for incidental permit holders and 
permit holders using mid-water trawls were implemented in 1999 as part 
of the limited access program for swordfish. At that time, swordfish 
were overfished, there were a number of latent permit holders, and the 
quota was being landed. Thus, the limited number of swordfish that 
could be landed by incidental permit holders or permit holders using 
mid-water trawls (an unauthorized gear) was appropriate and was aimed 
at reducing swordfish mortality by fishermen not targeting swordfish, 
to the extent practicable. The situation has now changed and, depending 
on the results of the upcoming 2006 stock assessment, NMFS may 
reconsider these limits in a future rulemaking.
    Comment 23: U.S. recreational fishermen should be allowed to sell 
their swordfish.
    Response: Under current HMS regulations, recreational fishermen are 
not allowed to sell HMS. If fishermen wish to sell their swordfish, 
they must possess a commercial swordfish limited access permit or 
obtain one from commercial fishermen who are leaving the fishery. 
Anecdotal information indicates there are a number of commercial 
swordfish permits available. However, depending on the type of 
swordfish permit obtained (directed, handgear, or incidental) these 
permits could restrict fishermen to the commercial suite of permits and 
they would not be able to obtain either an

[[Page 58141]]

HMS Angling or HMS Charter/Headboat permit. All recreational landings 
are counted against the domestic quota for swordfish (300 mt dw of the 
quota are allocated for recreational landings). Comments in the past 
have indicated concern to the public health regarding the quality of 
recreationally-caught swordfish. These commenters have noted that while 
commercial fishermen are trained and have the facilities to maintain 
fresh swordfish, recreational fishermen generally keep the swordfish in 
a cooler. Nevertheless, as discussed in Comment 22 above, fishermen 
have requested that NMFS revitalize the swordfish fishery. The 
suggestion in this comment may be one potential option for such a goal.
v. Tunas
    Comment 24: The Draft Consolidated HMS FMP does not consider the 
uncertainty associated with estimates of recent BFT recruitment in 
recent years, the probable outcomes for BFT under different estimates, 
or the impact on rebuilding of the current high mortality in the Gulf 
of Mexico. The Draft Consolidated HMS FMP needs to consider this while 
also keeping in mind the feasibility of changing ICCAT management 
measures and quotas at the upcoming ICCAT meeting.
    Response: The ecological impacts of this final action on BFT are at 
most, minimal. The overall quotas for each domestic fishing category 
are not changed, nor are the size classes of BFT that each domestic 
category targets. The selected alternatives for BFT comply with the 
ICCAT BFT rebuilding plan, which considers the uncertainty associated 
with BFT stock assessment analyses and reviews the efficacy of 
additional management options to reduce BFT bycatch in the Gulf of 
Mexico. The selected alternatives also continues the prohibition on 
directed fishing for BFT in the Gulf of Mexico. ICCAT is scheduled to 
reassess the West Atlantic BFT stock in June 2006, and the assessment 
will be evaluated at the upcoming annual ICCAT meeting in November 
2006. NMFS will implement any changes to the rebuilding plan as 
required under ATCA.
    Comment 25: Filleting tunas at-sea should be acceptable on HMS CHB 
vessels. By allowing filleting at-sea, the catch can be prepared and 
put on ice much sooner than if cleaning occurs upon returning to the 
dock; it will be better for public safety because tuna deteriorate 
quickly in warm summer and fall months; and preparing tuna sooner also 
improves the quality of the meat, and ultimately, angler satisfaction. 
The season is relatively short, so filleting at-sea allows for a 
quicker turn around time between trips. It will not compromise 
enforcement of size limits, retention limits, and species 
identification. Retaining the racks can facilitate enforcement.
    Response: Under current regulations at 50 CFR 635.30(a), ``persons 
who own or operate a fishing vessel that possesses an Atlantic tuna in 
the Atlantic Ocean or that lands an Atlantic tuna in an Atlantic 
coastal port must maintain such Atlantic tuna through offloading either 
in round form or eviscerated with the head and fins removed, provided 
that one pectoral fin and the tail remain attached.'' ``Eviscerated'' 
is defined as a fish that has only the alimentary organs removed. The 
regulations are intended to aid in enforcing the minimum size limit, 
retention limits, and species identification. Over the past several 
years, the HMS CHB industry, more specifically the headboat sector, has 
requested that it be exempt from the current regulations and allowed to 
fillet Atlantic tunas at sea. While authorizing filleting at-sea may 
have social and economic benefits for the industry as the commenter 
suggests, waiving the current regulations could render enforcement of 
size limits, retention limits, and species identification difficult, 
thus NMFS is not able to authorize such actions at this time.
vi. Sharks
    Comment 26: NMFS has placed sharks as the lowest priority. NMFS has 
not adequately addressed persistent overfishing, population depletion, 
and the need for a precautionary approach with regard to a number of 
exceptionally vulnerable coastal and pelagic shark species. The Draft 
Consolidated HMS FMP lacks goals, timetables, and milestones toward 
conserving sharks and their habitats.
    Response: The implementing regulations for Amendment 1 to the 1999 
FMP for Atlantic Tunas, Swordfish, and Sharks (December 24, 2003; 68 FR 
74746) included management measures to address overfishing and 
population depletion of sharks. These management measures included, but 
were not limited to: aggregating the LCS shark complex, using MSY as a 
basis for setting commercial quotas, implementing a 4,000 lb trip limit 
in the commercial LCS fishery, establishing regional commercial quotas 
and trimester seasons, establishing gear restrictions to reduce 
bycatch, and establishment of a time area closure in the mid Atlantic 
region from January to July each year to reduce interactions with 
sandbar and prohibited dusky sharks. There are also several shark 
management measures in this final rule that will address overfishing of 
finetooth sharks, improve shark dealer identification of commercially 
harvested shark species, and require fishermen to leave the second 
dorsal and anal fin on all commercially landed sharks to facilitate 
improved identification, among others. Furthermore, the HMS Management 
Division is currently engaged in a proposed rulemaking (March, 29, 
2006; 71 FR 15680) that may facilitate improved handling, release, and 
disentanglement of non-target bycatch, including sharks, sea turtles, 
and smalltooth sawfish. NMFS recently released a dusky shark assessment 
(May 25, 2006; 71 FR 30123), and is considering the results of the 
Canadian porbeagle assessment. The final LCS stock assessment review 
workshop was held in June of this year, and the SCS stock assessment 
workshops will begin in 2007. Additional management measures for shark 
fisheries in the Atlantic Ocean may be implemented in the future, as 
necessary.
    Comment 27: NMFS should release and begin work to address the 
findings of LCS assessment as soon as possible.
    Response: The LCS stock assessment is following the SEDAR process, 
which emphasizes constituent and stakeholder participation in 
assessment development and transparency in the assessment process. As 
documents related to the LCS assessment are completed they have been 
placed on the SEDAR webpage at: http://www.sefsc.noaa.gov/sedar/. The 
final LCS review workshop was held on June 5-9, 2006. NMFS will review 
the final determinations from the workshop and proceed with regulatory 
or management actions as necessary, consistent with Magnuson-Stevens 
Act, the HMS FMP, and other federal laws.
    Comment 28: NMFS has relaxed the conservation framework for 
exceptionally vulnerable deepwater sharks by removing this special 
grouping from the management unit. Contrary to NFMS assertions, the 
finning prohibition alone is not sufficient to conserve these species. 
NMFS should add deepwater sharks to the list of prohibited shark 
species in subsequent rulemaking.
    Response: The deepwater sharks were added to the management unit in 
1999 because the Agency wanted to ensure that finning was prohibited 
for all sharks, including deepwater sharks. When deepwater sharks were 
included in the management unit, there were no other management 
regulations in place (i.e., permitting, reporting, trip limits, minimum 
size). NMFS believes that

[[Page 58142]]

maintaining data collection only on the deepwater sharks is sufficient 
because they are not targeted in the shark fishery. Prohibiting 
landings of these species would not likely reduce mortality, as most of 
these sharks are dead at haulback and take of these species is a rare 
occurrence. Furthermore, NMFS does not want to further jeopardize the 
collection of data on these species, which is a rare event, by 
including them in the prohibited species management unit. Currently, on 
the rare occasions when fishermen catch a deepwater shark, they can 
give it to a scientist. If the species were prohibited, every fisherman 
and scientist who might catch a deepwater shark and who would want to 
retain any part of it for research would need to have an EFP on the off 
chance that such a shark would be caught. Nonetheless, if directed 
fisheries for deepwater sharks are developed and/or extensive landings 
of these species begins to occur as bycatch in other fisheries, the 
Agency may implement additional measures.
    Comment 29: NMFS needs to review and release the long-awaited 
population assessment for dusky sharks, as a matter of priority. We are 
concerned about the more than 23,000 dusky sharks landed in 2003, 
despite their prohibited species status. NMFS should investigate and 
address this problem immediately.
    Response: The Southeast Fishery Science Center recently released 
the dusky shark assessment (May 25, 2006; 71 FR 30123). This document 
is available on the internet (http://www.sefscpanamalab.noaa.gov/shark/pdf/Dusky_Shark_Assessment.zip). NMFS is also concerned about the 
status of dusky sharks; hence, this species has been on the prohibited 
species list since 1999. In 2003, 23,288 lb dw of dusky sharks were 
reported landed in commercial shark fisheries. In 2004, only 1,025 lb 
dw of dusky sharks were landed. Effective January 1, 2005, the mid-
Atlantic time/area closure closed commercial shark fishing with bottom 
longline gear from January 1 through July 31 of every year. This area 
was closed in part to reduce commercial fishery interactions with dusky 
sharks. NMFS may also implement additional management measures as a 
result of the recently released dusky shark assessment.
    Comment 30: NMFS received comments regarding management of 
porbeagle sharks including: The porbeagle population is 11 percent of 
its size in 1961 which is too low; Canada has already listed porbeagle 
sharks as endangered - the U.S. needs to prohibit all landing 
immediately and eliminate the directed quota for porbeagle sharks; we 
are concerned about the continuation of the directed quota for 
Northwest Atlantic porbeagles, given that this population has been 
proposed as ``Endangered'' by the IUCN SSG and Canada; NMFS should end 
the directed fishery for porbeagles by eliminating the directed 
commercial quota and allowing only incidental landings; we support NMFS 
stated interest in working with Canada to address porbeagle 
conservation - such negotiations will be more successful if the U.S. 
takes action to end directed porbeagle fisheries in U.S. waters; the 
U.S. should aggressively pursue no directed porbeagle shark fisheries 
with Canada and within ICCAT.
    Response: The U.S. has, on average, landed less than 1 mt of 
porbeagle sharks in the last four years, most of which was incidental, 
not directed catch. NMFS, however recognizes the ecological 
significance of the historical decline in porbeagle sharks, and is 
currently considering the stock assessment report recently completed by 
Canada in the fall of 2005. Management alternatives and regulations to 
prevent further declines in the porbeagle stocks will likely be 
considered in upcoming rulemaking actions, if necessary.
    Comment 31: NMFS needs to make permits available to Puerto Rican 
shark fishermen or allow them to retain sharks since they are retaining 
sharks anyway.
    Response: All fishermen fishing for HMS are already required 
through state regulations to have the appropriate HMS permits when 
fishing in state waters. Additionally, shark fishermen fishing in 
Federal waters are required to have the appropriate Federal HMS permit 
consistent with Federal regulations. Fishermen from all states and 
territories, including Puerto Rico and the Virgin Islands, may face 
enforcement action if they do not comply with Federal regulations.
    Comment 32: NMFS received two comments regarding the need to 
propose options for adding sharks to the prohibited species list 
including: NMFS has offered no alternatives in the Draft Consolidated 
HMS FMP to address depletion of these species (oceanic whitetip, silky 
sharks, and hammerheads); these species are not targeted but measures 
to avoid and reduce bycatch of these species are urgently needed. To 
reduce regulatory discards within the directed and incidental shark 
fishing fleets, NMFS should consider removing certain species of sharks 
from the prohibited species list, such as bignose, Caribbean reef, 
dusky, Galapagos, night, sand tiger, and Caribbean sharpnose.
    Response: NMFS did not consider changes to the prohibited species 
management unit in this rulemaking. Amendment 1 to the 1999 FMP for 
Atlantic Tunas, Swordfish, and Sharks established criteria for addition 
or removal of species to/from the prohibited species group. These four 
criteria include: there is sufficient biological information to 
indicate that stock warrants protection, the species is rarely 
encountered or observed caught in HMS fisheries, the species is not 
commonly encountered or caught as bycatch in fishing operations, and 
the species is difficult to distinguish from other prohibited species. 
NMFS may consider changes to the prohibited species management unit in 
a future rulemaking, if necessary.
    Comment 33: Because smooth dogfish is the only U.S. Atlantic shark 
that is subject to a directed fishery and not covered by management 
measures, NMFS should evaluate this fishery and assess the population. 
NMFS should begin this work immediately, present the findings to the 
Mid-Atlantic Fisheries Management Council (MAFMC), and suggest a way 
forward as soon as possible.
    Response: During the summer of 2005, NMFS received a request from 
the MAFMC to transfer management of smooth dogfish to the council. NMFS 
asked for more information regarding why the MAFMC should have sole 
jurisdiction over the stock. NMFS continues to wait for a response and 
will work with the Regional Fishery Management Council(s) to determine 
the appropriate management body for this species.
    Comment 34: EPA noted that bycatch of SCS in the Gulf shrimp 
fishery fell approximately 46 percent following the introduction of 
turtle excluder devices in 1999. If this trend continues, this 
represents an encouraging level of success for the use of turtle 
excluder devices. EPA also noted that data entries for Table 3.90 in 
the Draft Consolidated HMS FMP for the year 1999 and 2000 were the same 
and assumed that 2000 data were estimated.
    Response: NMFS agrees that turtle excluder devices should reduce 
the amount of bycatch. Regarding 1999 and 2000 data, 1999 data were 
calculated as the average of the value of 1992 to 1997 divided by two 
in order to account for the effect of the turtle excluder devices. Data 
from 2000 were assumed to be the same as the 1999 data.
    Comment 35: EPA notes that Table 3.90 indicates that the dressed 
weights of SCS are approximately one pound per shark. This suggests 
that these are small

[[Page 58143]]

sharks that would have little commercial value.
    Response: SCS are generally the small sharks, and they have the 
lowest commercial value of all Atlantic sharks, generally less than 
$0.50 per pound. Many fishermen use these species as bait. In 2004, not 
including shark fin values, the SCS fishery was worth approximately 
$340,000 compared to $2.7M for LCS and just over $500,000 for pelagic 
sharks.
vii. Fishing Mortality and Bycatch Reduction
    Comment 36: Table 3.24 contains an error that has been repeated in 
several documents. The Technical Memorandum -- SEFSC-515 cited as 
Garrison 2003 contains an error in addition concerning the total number 
of observed sets (both Total and non-NED) for 2001. The correct Total 
is 584 and non-NED is 398, which would change the correct percentages 
to 5.4 percent and 3.7 percent, respectively. Also the 2002 Non-NED 
percentage should be 3.9 percent. Lance Garrison confirms these 
inadvertent errors in his published errata affixed to the document.
    Response: NMFS has made the requested corrections.
    Comment 37: Has NMFS considered the fact that the Gulf of Mexico is 
a special region with special needs? Could there be regulations on a 
regional basis (i.e., regulations different for the Gulf of Mexico from 
that of other regions)?
    Response: It is possible to implement regulations on an area-
specific basis to fit the special needs of a fishery whenever possible. 
NMFS has implemented different regulations for the pelagic longline 
fishery on an area-specific basis in the past. For instance, a live 
bait prohibition for this fishery has been implemented in the Gulf of 
Mexico in an attempt to reduce the bycatch of billfish. NMFS has also 
implemented regional allocations and seasons for LCS and SCS including 
ones for the Gulf of Mexico, and BFT regulations in the Gulf of Mexico 
are different than those along the east coast. Another example of 
regionally-specific regulations is the requirement to use only 18/0 or 
larger circle hooks in the NED for the pelagic longline fishery while 
requiring 16/0 or larger circle hooks elsewhere. NMFS will continue to 
evaluate alternative management measures in light of the specific needs 
of a fishery when possible.
    Comment 38: NMFS should request that the Gulf of Mexico Fishery 
Management Council and the Gulf states cooperate with NMFS to minimize 
shark bycatch associated with fisheries under their purview (i.e., Gulf 
of Mexico shrimp and menhaden fisheries).
    Response: NMFS agrees that cooperation amongst the States, Regional 
Fishery Management Councils, and the Agency can help to address bycatch 
issues, particularly in those fisheries that cross jurisdictional 
boundaries. NMFS has contacted the Gulf and South Atlantic States and 
Regional Fishery Management Councils in an attempt to identify 
fisheries where finetooth shark bycatch may be occurring. NMFS also 
consulted with all Regional Fishery Management Councils and both the 
Atlantic and Gulf States Marine Fisheries Commissions regarding the 
Draft Consolidated HMS FMP and its proposed measures.
    Comment 39: NMFS has failed to meaningfully reduce longline bycatch 
since 1997. While time/area closures give the appearance that something 
is being done, this is not the only answer.
    Response: NMFS disagrees that longline bycatch has not been 
meaningfully reduced. NMFS analyzed the reported landings and bycatch 
in the pelagic longline fishery from 1997-99 versus 2001-03 to measure 
the effectiveness of the time/area closures implemented in 2000-01. The 
analyses showed that the existing closures have been effective at 
reducing bycatch of protected species and non-target HMS and have 
provided positive ecological benefits. For example, the overall number 
of reported discards of swordfish, bluefin and bigeye tunas, pelagic 
sharks, blue and white marlin, sailfish, and spearfish have all 
declined by more than 30 percent. The reported discards of blue and 
white marlin declined by about 50 percent and sailfish discards 
declined by almost 75 percent. The reported number of sea turtles 
caught and released declined by almost 28 percent.
    It appears that bluefin tuna discards in the MAB and NEC have been 
reduced considerably since the implementation of the June closure in 
1999. Reported discards of BFT prior to implementation of the closure 
ranged from 558 to over 2,700 per year. Since 1999, the number of 
bluefin tuna reported discarded has remained below 500 per year. The 
number of swordfish kept in the MAB and NEC has increased since the 
closure was implemented while the number of billfish discarded has 
declined.
    NMFS agrees that time/area closures are not the only management 
tool that can be utilized to reduce bycatch. NMFS has also implemented 
circle hook and bait requirements for the pelagic longline fishery and 
a live bait prohibition for that fishery in the Gulf of Mexico as well. 
These measures are intended to reduce the bycatch of non-target species 
and protected resources in the pelagic longline fishery.
    Comment 40: NMFS should allow longline fishermen to sell their 
bycatch for charity.
    Response: Commercial fishermen are already allowed to sell their 
catch for whatever purpose unless it is a prohibited species or 
specific regulations prohibit its retention such as the season is 
closed, quota has been met, the fish is undersized, or the animal is a 
protected resource.
    Comment 41: NMFS received several comments regarding the need for 
additional research including: NMFS should research live baiting using 
circle hooks as a technique to increase catch of YFT and reduce 
bycatch; NMFS should conduct and/or continue experiments on non-offset 
circle hooks, circle hooks 20/0 and larger, bait options, and post-
hooking effects.
    Response: NMFS agrees that additional research can be conducted on 
a number of topics, including those in this comment and other comments 
throughout this final rule, to evaluate their effectiveness in reducing 
bycatch of non-target species and protected resources. NMFS intends to 
continue to evaluate research proposals in many of these areas. New 
research is dependent on funding availability.
    Comment 42: In our scoping comments, we set forth a proposal for 
NMFS to consider regarding bycatch. NMFS left that proposal out of the 
draft FMP even though it is required under international and domestic 
laws to develop fully and analyze that proposal.
    Response: While every comment is considered, NMFS disagrees that 
all comments offered during the scoping process need to be developed 
fully and analyzed. The Agency considered a broad range of alternatives 
to address bycatch in the Draft FMP, however, not all of these were 
fully developed and analyzed for a variety of reasons. There may have 
been more effective alternatives considered for further analysis or a 
proposed measure was found to not meet the needs or objectives of the 
FMP, and therefore was not considered further.
    Comment 43: NMFS received comments about the need to implement a 
cap or quota on bycatch. These comments include: to reduce bycatch, 
NMFS should implement a hard cap system. Such a system would, among 
other things, set limits on fishing mortality of marine life, provide 
accountability by dividing limits between fishing sectors, set limits 
that would stop fishing for that sector, reward clean fishing, prevent 
a race to

[[Page 58144]]

fish, and reduce bycatch. Such caps should be set for commercially 
targeted species, spawning species, recreationally targeted species, 
endangered species, marine mammals, and other species, such as sea 
birds, that are needed to promote the health of the marine ecosystem; 
NMFS should implement a hard cap on the takes of protected species 
similar to the one successfully implemented in the Western Pacific. 
This would remedy the historic failure of the pelagic longline fleet to 
maintain up-to-date records of turtle bycatch, allow for timely 
corrective action to reinitiate under the ESA, and help the fleet stay 
within take levels intended to protect against the jeopardy to the 
species. Such a system would require real time observer reporting and a 
``yellow light'' system to warn fishermen when takes are approaching 
the limit.
    Response: Additional measures designed to reduce bycatch could be 
examined in the future, possibly on a sector by sector basis as 
suggested by the commenter. However, a hard cap system may not be 
appropriate or feasible in every sector due to logistical constraints 
such as placing observers on every recreational and commercial vessel, 
limited resources, and other management measures that are already in 
place for the fishery such as mandatory circle hook use for the PLL 
fishery. There are also international concerns related to rebuilding 
plans and the ATCA, fishing effort and mortality rates, and bycatch 
that would need to be considered prior to establishing hard caps. A 
hard cap on the number of protected species interactions (e.g., sea 
turtles) in all HMS fisheries already exists through the incidental 
take statement. Each fishery is operating under an incidental take 
statement that once reached can close that fishery and/or result in a 
re-initiation of consultation under Section 7 of the ESA.
    Comment 44: NMFS has a study that indicates a default standardized 
bycatch reporting methodology (SBRM) must include observer coverage of 
at least 20 percent (or 50 percent when endangered species are at 
risk). Rather than analyzing its needs to meet the conservation and 
management goals of the fishery, NMFS claims the study was simplistic 
and failed to account for ``limited resources.'' This arbitrary failure 
to analyze alternatives for establishing a reporting methodology 
violates NEPA and the Magnuson-Stevens Act. NEPA requires NMFS to 
undertake an analysis to determine the level of observer coverage 
necessary to provide accurate and precise data for each conservation 
and management need addressed in the draft FMP. Congress and the 
Magnuson-Stevens Act do not give NMFS the ability to ignore the 
reporting methodology based on ``limited resources.'' Nevertheless, a 
NEPA analysis could consider them.
    Response: The effectiveness of any SBRM depends on its ability to 
estimate the type and quantity of bycatch precisely and accurately 
enough to meet the conservation and management needs of a fishery. The 
National Bycatch Report contains an in-depth examination of the issues 
of precision and accuracy in estimating bycatch and how precision 
relates to sampling and to assessments. The precision of an estimate is 
often expressed in terms of the coefficient of variation (CV) defined 
as the standard error of the estimator divided by the estimate. The 
lower the CV, the more precise the estimate is considered to be. A 
precise estimate is not necessarily an accurate estimate.
    The National Working Group on Bycatch recommended that at-sea 
sampling designs should be formulated to achieve precision goals for 
the least amount of observation effort, while also striving to increase 
accuracy. This can be accomplished through random sample selection, 
developing appropriate sampling strata and sampling allocation 
procedures, and by implementing appropriate tests for bias. Sampling 
programs should be driven by the precision and accuracy required by 
managers to address management needs for estimating management 
quantities such as allowable catches through a stock assessment, for 
evaluating bycatch relative to a management standard such as allowable 
take, and for developing mitigation mechanisms. The recommended 
precision goals for estimates of bycatch are defined in terms of the 
coefficient of variation (CV) of each estimate. For marine mammals and 
other protected species, including seabirds and sea turtles, the 
recommended precision goal is a 20-30 percent CV for estimates of 
interactions for each species/stock taken by a fishery. For fishery 
resources, excluding protected species, caught as bycatch in a fishery, 
the recommended precision goal is a 20-30 percent CV for estimates of 
total discards (aggregated over all species) for the fishery; or if 
total catch cannot be divided into discards and retained catch, then 
the goal is a 20-30 percent CV for estimates of total catch (NMFS, 
2004a). The report also states that attainment of these goals may not 
be possible or practical in all fisheries and should be evaluated on a 
case-by-case basis.
    Rago et al., (2005) examined potential sources of bias in 
commercial fisheries of the Northeast Atlantic by comparing measures of 
performance for vessels with and without observers. Bias can arise if 
the vessels with observers onboard consistently catch more or less than 
other vessels, if trip durations change, or if vessels fish in 
different areas. Average catches (pounds landed) for observed and total 
trips compared favorably and the expected differences of the stratum 
specific means and standard deviations for both kept weight and trip 
duration was near zero (Rago et al., 2005).
    The report cited by this commenter suggests that relatively high 
percentages of observer coverage are necessary to adequately address 
potential bias in bycatch estimates from observer programs. However, 
the examples cited in that report as successful in reducing bias 
through high observer coverage levels are fisheries comprised of 
relatively few vessels compared to many other fisheries, including the 
Atlantic HMS fishery. Their examples are not representative of the 
issues facing most observer programs and fishery managers, who must 
work with limited resources to cover large and diverse fisheries. The 
commenter appears to suggest that simply increasing observer coverage 
ensures accuracy of the estimates. However, bias due to 
unrepresentative sampling may not be reduced by increasing sample size 
through increased observer coverage due to logistical constraints, such 
as if certain fishermen refuse to take observers, or if certain classes 
of vessels cannot accommodate observers. Increasing sample size through 
increased observer coverage may only result in a larger, but still 
biased, sample due to non-representative sampling. Observer programs 
strive to achieve samples that are representative of both fishing 
effort and catches. Representative samples are critical not only for 
obtaining accurate (i.e., unbiased) estimates of bycatch, but also for 
collecting information about factors that may be important for 
mitigating bycatch. Bias may be introduced at several levels such as 
when vessels are selected for coverage or when only a portion of the 
haul can be sampled due to weather or other concerns.
    NMFS has conducted analyses to determine the level of observer 
coverage needed for the pelagic longline, bottom longline and shark 
gillnet fisheries to produce estimates for protected resource 
interactions with a CV of 0.3 (30 percent) or less. The current target 
levels of observer coverage are eight percent of total sets for the PLL 
fishery,

[[Page 58145]]

3.9 percent of total effort for the BLL fishery, and 33.8 percent for 
the shark gillnet fishery outside of the right whale calving season 
(April 1 through November 14) and 100 percent during right whale 
calving season (November 15 through March 31). NMFS will continue to 
provide observer coverage at these levels, subject to available 
resources.
    Comment 45: NEPA requires that the EIS analyze the cumulative 
effect of all takes on sea turtles, not just the effects of takes in 
the HMS fisheries. While the pelagic longline fishery is one of the 
most damaging fisheries to sea turtle populations, a true determination 
of environmental impacts of this fishery cannot be made without 
examining the effects of all U.S. fisheries cumulatively.
    Response: NMFS agrees that impacts to sea turtles and other 
protected resources are not limited to takes in HMS fisheries. The 
environmental impacts of the pelagic longline fishery and a description 
of the fishery are covered in Chapters 3 and 4 of the Draft HMS FMP. 
All fisheries and non-fisheries impacts on the status of each protected 
resource were already analyzed as part of the environmental baseline in 
the BiOp for the PLL fishery. Because the final actions within this 
final rule are not outside the scope of the BiOp for the PLL fishery, 
or the BiOps for other HMS fisheries, NMFS does not consider the 
actions detrimental to sea turtle populations.
    Comment 46: The EIS provides only a cursory analysis of the impacts 
of HMS fisheries on marine mammals. The current bycatch monitoring 
methodology is not adequate for the conservation and management needs 
of marine mammals. Collecting the information is necessary to allow 
NMFS to devise specific bycatch reduction measures based on the actual 
behavior of marine mammals in HMS fisheries. NMFS should require 
fishermen to report in real-time where they place gear and where gear 
is lost, and to mark gear with colors to indicate the type and location 
of fishing gear. NMFS must also prioritize the granting of scientific 
research permits.
    Response: The MMPA requires commercial fishermen to report all 
marine mammal interactions within 48 hours after the end of a fishing 
trip. Marine mammal interactions have been documented in the pelagic 
longline fishery and the shark gillnet fishery. Both fisheries are 
subject to observer coverage at levels that produce estimates of marine 
mammal interactions with a CV less than 30 percent. For marine mammals 
and other protected species, including seabirds and sea turtles, the 
recommended precision goal in the National Bycatch Report is a 20-30 
percent CV for estimates of interactions for each species/stock taken 
by a fishery. In June 2005, NMFS convened the Pelagic Longline Take 
Reduction Team to assess and reduce the takes of marine mammals, 
specifically pilot whales and Risso's dolphins, by the pelagic longline 
fishery. NMFS will take action based on the results of the Pelagic 
Longline Take Reduction Plan, as necessary.
    Comment 47: NMFS must implement comparable bycatch and sea turtle 
safe conservation certification program on all HMS product imports.
    Response: NMFS appreciates this comment. As such a program would be 
most effective as part of an international program, NMFS may evaluate 
the efficacy and feasibility of requiring this type of certification 
program as part of a future action.
    Comment 48: While NMFS received a number of comments on ways to 
better monitor recreational landings including logbook data that is 
tied to renewing permits, catch cards, and Vessel Trip Reports (VTR), 
the issue was relegated to one paragraph in the ``Issues for Future 
Consideration and Outlook'' section. The AP wants to move from survey 
methods to census methods and that idea is lost in this draft. NMFS 
should work with ACCSP to implement a mandatory VTR program that 
provides timely, accurate catch and effort data for the for-hire 
fleets. NMFS should state that it supports a comparison of existing 
for-hire VTR catch data with LPS data for the same time periods.
    Response: NMFS recognizes the desire to improve the collection of 
recreational landings data. At the request of NMFS, the National 
Academy of Science (NAS) recently reviewed both state and federal 
marine recreational fishery surveys. The review committee's report has 
been published and the Agency is evaluating the recommendations.
    Comment 49: The Agency has a lack of attention to recreational 
fisheries data collection resulting in negative impacts to the 
recreational fishery.
    Response: NMFS spends considerable time and money collecting data 
from recreational fisheries, including recreational fisheries for HMS. 
NMFS staff also spend considerable time and effort monitoring data 
collection and reviewing recreational fishery data for HMS fisheries. 
The Agency is evaluating the recommendations of the recent NAS review 
of marine fishery surveys to identify where improvements may be made.
    Comment 50: Maryland catch card data should be used to determine 
total BFT catch instead of using LPS catch data for Maryland.
    Response: NMFS has reviewed the Maryland BFT catch card data from 
2002-2005 to evaluate its utility for management purposes. Although 
current reporting appears to be high, there is a measured level of non-
compliance with the program. This non-compliance was determined by 
comparing directly observed BFT in the intercept portion of the LPS 
with catch card records. Non-compliance with the Maryland catch card 
program is currently estimated to be 15 percent. NMFS will continue to 
work with the Maryland DNR to improve compliance with the catch card 
program so that NMFS can integrate the data it generates into the 
monitoring and management program for BFT.
viii. Permitting, Reporting, and Monitoring
    Comment 51: NMFS received a number of comments regarding HMS 
permitting in general. These comments consisted of: NMFS should 
provided updated HMS regulations to permit holders when they are issued 
a permit; permits should be renewed on a calendar year basis so fishing 
groups can notify their memberships and thereby improve renewal 
compliance; and, NMFS should implement a salt water fishing license for 
all fishermen in order to develop a database for data collection and 
observer coverage.
    Response: NMFS agrees that the idea of providing copies of relevant 
regulations when an HMS permit is applied for and sent has merit. 
However, due to the ever changing dynamics of HMS fisheries, the rules 
and regulations may change throughout the season. Providing permit 
holders with a snapshot of the rules and regulations that exist early 
in the season may lead to a false sense of security that these 
regulations would remain consistent for the entire season. In an 
attempt to strike a balance, NMFS includes information on the Atlantic 
tunas and HMS permits that allow the permit holder to access the most 
recent information. For instance, NMFS includes a web address and toll-
free telephone number where permit holders can locate the most up to 
date regulations. For those permits that authorize the user to 
participate in recreational HMS fisheries, NMFS has included the 
appropriate telephone numbers to report their catch. NMFS is adjusting 
the annual management timeframe of HMS fisheries to a calendar year, 
versus a wrap around

[[Page 58146]]

fishing year, i.e., June through May of the following year. NMFS will 
realign the HMS permitting to coincide with the calendar year. For 
consistency purposes the shark and swordfish commercial permits, both 
vessel and dealers, will still be issued according to birth month, 
under the business rules of the Southeast Permitting Office.
    Comment 52: NMFS received a comment stating that NMFS should 
redesign vessel permits based on fishing methods and geographic area. 
NMFS should combine vessel permitting for coastal pelagics and HMS for 
the charter boats, headboats, and commercial handgear vessels.
    Response: Since the inception of the 1999 FMP, constituents, 
advisory panel members, NMFS staff, and others have identified a number 
of issues pertaining to the permitting program. These have included, 
but are not limited to, further rationalizing some segments of the HMS 
fisheries, streamlining or simplifying the permitting process, 
restructuring the permit process to a gear-based permit system from the 
current species-based permit system, and reopening some segments of the 
limited access system to allow for the issuance of additional permits. 
Addressing these issues in the future may be important to the 
successful long-term stewardship of HMS fisheries, and therefore NMFS 
may consider restructuring these elements in future rulemakings.
    Comment 53: A mandatory HMS tournament permit (alternative E9) 
would help to provide an exact count of the number of marlin landed in 
tournaments.
    Response: In the Draft Consolidated HMS FMP, a mandatory HMS 
tournament permit (alternative E9) was considered, but not further 
analyzed, because improvements to tournament registration, data 
collection, and enforceability may be achieved with considerably less 
burden to the public and the government by issuing a confirmation 
number, rather than a permit, to tournament operators that have 
registered their tournaments with NMFS. Because HMS tournaments 
frequently change operators, names, and dates, a tournament permit 
would be very burdensome to administer and enforce. Therefore, the 
regulations are being clarified to specify that HMS tournament 
registration is not considered complete unless the operator has 
received a confirmation number from the HMS Management Division of 
NMFS. Requiring a tournament confirmation number, issued by the HMS 
Management Division, will achieve the same objective (i.e., increased 
compliance) as a tournament permit. Since all tournaments awarding 
points or prizes for HMS are currently required to be registered with 
NMFS, and because all billfish tournaments are currently selected for 
reporting, the Agency is already obtaining an exact count of the number 
of marlin landed in registered tournaments.
    Comment 54: NMFS received general comments regarding the 
recreational reporting requirements including: Non-compliance with 
recreational swordfish and billfish reporting occurs because it takes 
too much time to report fish to NMFS using the telephone. NMFS needs to 
simplify the telephone reporting system and increase Customer Service; 
to increase compliance with recreational reporting requirements, NMFS 
should provide a bumper sticker, or token reward, to those fishermen 
that have reported their catch. This technique has been successful in 
other fisheries.
    Response: The recreational billfish and swordfish telephone 
reporting system has recently been modified to provide quicker and more 
convenient access. HMS Angling category permit holders (or their 
designees) must report landings of these species within 24 hours of 
landing by calling 800-894-5528, and then pushing the numbers ``21'' to 
provide information regarding the catch. A representative from NMFS 
will later contact the permit holder (or designee) to verify the 
landing and provide a confirmation number. The initial telephone call 
should only take a few minutes. Since the system has been modified to 
provide quicker access, the number of first-time callers has increased. 
Additionally, NMFS is working on implementing an Internet reporting 
system for these species. The Agency appreciates suggestions to 
increase compliance with the mandatory recreational reporting 
requirement and will consider these in the future, if necessary.
    Comment 55: Until NMFS seriously invests in comparable permitting, 
reporting, monitoring, and enforcement across all HMS fisheries, 
commercial and recreational, it will not be able to appropriately 
manage Atlantic HMS fisheries. Currently, NMFS has adequate data for 
only a couple of commercial fisheries.
    Response: NMFS realizes the importance of permitting, reporting, 
monitoring, and enforcement in maintaining viable management of 
Atlantic HMS. There are several measures included in this rulemaking 
that address these issues. Quality stock assessments, accurate quota 
monitoring, fishing effort control, and complying with current HMS 
regulations are paramount to the HMS management program and the Agency 
agrees that these programs are worth serious investments of personnel 
and financial resources. The Agency currently maintains a comprehensive 
permitting system for both commercial and recreational fisheries, 
including both limited and open access regimes. Reporting is required 
of all shark and swordfish commercial fisheries participants, and some 
commercial tuna fishery participants, including costs and earnings 
reports from selected commercial fisheries participants. Landings are 
monitored consistently to ensure that landings are within their 
allotted quotas. Recreational reporting is currently required for all 
non-tournament landings of bluefin tuna, swordfish, and billfish. 
Tournaments are also required to register and report any landings of 
HMS. NMFS is dependant on several entities for dockside and at-sea 
enforcement, including NMFS Office of Law Enforcement, the United 
States Coast Guard, and individual states that maintain a Joint 
Enforcement Agreement with NMFS. NMFS is involved in activities to 
enhance, update, and/or modify the permitting, reporting, monitoring, 
and enforcement systems currently in place.
    Comment 56: NMFS received comments pertaining to the longline 
sector of the HMS fishery. The comments consisted of: NMFS must monitor 
and account for all sources of fishing mortality, not just mortality 
from the PLL fleet; and, is the VMS requirement meeting its intended 
purpose and who needs to possess one?; and, NMFS should put 100 percent 
observer coverage on commercial vessels around Puerto Rico for a few 
years due to gear conflicts between PLL vessels and other commercial 
vessels. These conflicts are attributed to PLL vessels operating closer 
to shore and thus interfering with traditional trolling practices.
    Response: NMFS accounts for recreational landings in stock 
assessments and uses the best available science regarding post-release 
mortality of billfish in the recreational sector to consider impacts on 
billfish and other HMS taken in fisheries other than commercial 
longlining. VMS is required on all vessels fishing for HMS with pelagic 
longline gear onboard, on all directed shark bottom longline vessels 
between 33[deg] North and 36[deg]30' North from January through July, 
and on all gillnet vessels with a directed shark permit during the 
Right Whale Calving Season from November 15 to March 31. VMS is meeting 
its intended purpose by

[[Page 58147]]

assisting in the monitoring and enforcement of closed areas. It is one 
of several tools including logbooks, observer programs, gear 
requirements, quotas, and limited access permits that NMFS uses to 
manage HMS fisheries. Resources for observer programs are limited, and 
having 100 percent observer coverage on commercial vessels around 
Puerto Rico would likely not be possible due to funding constraints. 
Currently, vessels are randomly selected for observer coverage 
throughout the fishery based on having a permit and reporting in 
logbooks. Furthermore, observers are not trained as enforcement 
personnel, and would not be in a position to reduce conflicts between 
different gear sectors in and around Puerto Rico. These types of issues 
are more appropriately handled by enforcement personnel.
    Comment 57: NMFS received a number of comments regarding the 
deployment of observers in HMS fisheries. These comments consisted of: 
Observer coverage on the pelagic longline fishery must be significantly 
increased from current levels, especially in areas with high levels of 
sea turtle take (e.g., the Northeast Distant and the Gulf of Mexico). 
More coverage is essential to provide data on the effectiveness of the 
gear and bait modifications and the rate and location of sea turtle 
capture. The 2004 BiOp required 8 percent coverage but this increase 
was established by ICCAT for the purpose of assessing the bycatch of 
tuna species and will not be effective at assessing the bycatch of 
rarely encountered species such as sea turtles; proper measurement for 
observer coverage levels should be based on the number of observed 
hooks out of the number of hooks reported to have been fished, rather 
than number of observed sets; a voluntary HMS CHB observer program 
should be tested; and, NMFS should implement electronic reporting and 
mandatory observer coverage for all HMS fisheries.
    Response: NMFS increased observer coverage in the pelagic longline 
fishery to 8 percent in 2004 in order to effectively monitor bycatch 
after implementation of new gear requirements. The pelagic longline 
observer program coverage level was raised to 8 percent not just to 
meet ICCAT targets, but also to improve the precision of catch and 
bycatch estimates specified in NMFS' guidelines for fisheries observer 
coverage levels. The number of sets is the standard effort used by 
other NMFS-managed fisheries in calculating the level of observer 
coverage required. Additionally, the set location is more easily 
tracked to the statistical reporting areas in the Atlantic than logbook 
or fishing effort based on the number of hooks would be. NMFS agrees 
that voluntary observer coverage would be helpful in a number of 
different fisheries, as would electronic reporting if it were 
technologically feasible and not cost prohibitive. NMFS will continue 
to explore these options in the future.
    Comment 58: An operator's permit should be required for all HMS 
fisheries.
    Response: The HMS Management Division is aware of several other 
federally managed fisheries that have imposed this requirement (e.g., 
the commercial and charter/headboat Atlantic dolphin and wahoo 
fisheries and the commercial South Atlantic rock shrimp fishery), 
however, NMFS has not proposed similar measures for HMS at this time. 
NMFS is looking at the permitting requirements for all HMS fisheries 
and may be consider this requirement in the future, as necessary and 
appropriate.
ix. Enforcement
    Comment 59: NMFS received several comments related to the lack of 
enforcement of HMS regulations, including: the Agency needs to enforce 
the HMS regulations for all people fishing for HMS, there is virtually 
no fisheries enforcement in the U.S. Virgin Islands, lack of 
enforcement is a big problem in Puerto Rico, law enforcement should 
increase effort around places where marlin are sold illegally and there 
are many issues with billfish landings in Puerto Rico and there should 
be continued focused efforts to better understand how many billfish are 
being landed in the Caribbean.
    Response: NMFS Office for Law Enforcement (NMFS OLE) has Special 
Agents stationed in Puerto Rico to enforce all federal fisheries laws, 
including those involving HMS. In addition, the United States Coast 
Guard (USCG) conducts fisheries enforcement in all federal waters, 
including the waters off the coast of Puerto Rico. With regard to the 
specific concerns that the commenter raised about billfish, NMFS has 
very little hard data on the extent of illegal sales of billfish in 
Puerto Rico, and as such cannot verify the veracity of the commenter's 
claims or assess their impact. NMFS has received a number of anecdotal 
reports of sales of Atlantic marlin in Puerto Rico. The number of these 
anecdotal reports suggests that a sizable number of Atlantic marlin may 
be illegally sold and implies that more than just those fish that come 
to the boat dead are illegally entered into commerce. NMFS acknowledges 
that there is some uncertainty associated with marlin landings 
statistics from the U.S. Caribbean, and the Agency is working to 
improve these statistics by increasing enforcement of existing 
permitting and reporting requirements, including those for tournaments.
    Comment 60: One commenter was confused by the 3 and 12 mile limits, 
other confusing rules, and whom they should call to complain and ask 
for patrols.
    Response: Most states on the Atlantic Ocean, with the exception of 
Texas and the west coast of Florida, have a 3 mile limit which 
delineates their states' waters. Individual states (or commonwealths) 
have jurisdiction over fisheries management and enforcement in their 
waters. The west (Gulf of Mexico) coast of Florida and Texas have 
jurisdiction out to nine miles. Puerto Rico, a U.S. Territory, has 
jurisdiction out to nine miles. The 2005 Guide for Complying With the 
Regulations for Atlantic Tunas, Swordfish, Sharks, and Billfish 
provides detailed information and responses to frequently asked 
questions concerning HMS regulations. The contact numbers for NMFS 
Office of Law Enforcement are also provided in this document which can 
be downloaded from the HMS website or by contacting NMFS.
    Comment 61: NMFS must do a better job in protecting and preserving 
our marine resources in general. Possible strategies that NMFS should 
consider include: discouraging overfishing by increasing fees, 
implementing stricter regulations, and improving enforcement.
    Response: NMFS has implemented numerous regulations that are 
intended to prevent overfishing, rebuild overfished stocks, reduce 
bycatch, and limit fishing capacity in efforts to ensure that viable 
stocks of HMS are enjoyed by future generations of stakeholders. 
Enforcement of HMS regulations is one of several priorities shared by 
the NMFS OLE, USCG, and states that have a Joint Enforcement Agreement 
with the Federal government. NMFS OLE, USCG, and individual states are 
constantly striving to improve enforcement of not just HMS regulations, 
but regulations pertaining to all fisheries. This rulemaking includes 
regulations aimed at rebuilding overfished stocks of billfish, 
preventing overfishing of finetooth sharks, reducing post release 
mortality of sea turtles and other protected resources, simplifying 
management of bluefin tuna, authorizing additional fishing gears for 
HMS, and improving identification of

[[Page 58148]]

sharks by dealers, among other measures. Increasing fees was not 
analyzed in this rulemaking, however, NMFS has implemented a suite of 
other regulations, in this rulemaking and otherwise, that prevent or 
discourage overfishing.
    Comment 62: Possession of HMS angling permits in South Florida is 
still an issue. Many anglers do not possess the appropriate permit. 
Could the Sun Sentinel or Miami Herald be involved in reporting cases 
where anglers are caught for fishing without the proper permits?
    Response: NMFS agrees that it is important for all participants in 
HMS fisheries to possess the appropriate permit and is interested in 
exploring options to improve outreach in all areas of the Atlantic with 
the objective of increased compliance with HMS permitting requirements. 
Advertising the requirements in newspapers or other media may be a 
viable option to improve compliance. However, individuals have the 
primary responsibility for knowing the laws surrounding their 
participation in all activities, including the pursuit of HMS. Many 
freshwater, estuarine, and/or marine fisheries require compliance with 
regulations that include, but are not limited to: permitting, size and 
bag limits, and seasons. HMS fisheries are no exception.
    Comment 63: NMFS OLE needs to prioritize which violations are the 
most significant and pursue these cases first.
    Response: NMFS OLE, in conjunction with the NMFS Regional 
Administrator, sets regional enforcement priorities. These priorities 
are based on the threat that a certain violation or category of 
violations presents to marine resources, identified trends in 
noncompliance, as well as other factors. In addition, the Magnuson-
Stevens Act, as well as the Agency's own civil monetary penalty 
schedule, provides that the egregiousness of the offense and the 
violator's history of prior violations is considered, along with other 
factors, in determining the appropriate civil monetary penalty.
x. ICCAT
    Comment 64: NMFS received a number of comments pertaining to ICCAT, 
the 250 recreationally caught marlin landing limit, U.S. participation 
at ICCAT, and U.S. negotiating positions at ICCAT, including: ICCAT 
should look at a longer billfish time series so they can see the 
increase in biomass overtime; the bargaining power of the U.S. may be 
reduced at ICCAT if the full quota is not being utilized; the U.S. 
impact on Atlantic blue and white marlin is probably considerably less 
than 5 percent. The White Marlin Status Review Team noted that if the 
United States were to stop all commercial and recreational fishing 
mortality for white marlin, the impact on the stock trajectory would be 
minimal. The U.S. cannot have a meaningful impact acting alone. ICCAT 
does not give credit for unilateral conservation measures. If the U.S. 
implements the selected alternatives measures now, we will greatly 
reduce our ability to negotiate with other nations to further reduce 
their impacts on these overfished stocks; we do not favor additional 
domestic regulations on catches of marlin until after further 
development of a rebuilding plan by ICCAT; we would be better off if 
NMFS waited until the other countries reduced their commercial landing 
by 50 percent before we agree to the 250. We would like to see 
verification of the 50 percent and 66 percent landing reductions that 
other countries have agreed to; United States ICCAT representatives 
should demand the unjustified 250 marlin limit be remanded. 
Particularly, when across the ocean, foreign longliners harvest these 
species for sale, with no thought of conservation; if NMFS wants angler 
support of recreational limits, they need to prove to recreational 
anglers that the U.S. will take a tougher stand at ICCAT; ICCAT may not 
be enough to deal with global conservation concerns relating to 
billfish; more pressure needs to be applied on countries that are not 
complying with ICCAT recommendations; the U.S. should reconsider how we 
participate in the ICCAT process due to its effectiveness and the 
inability to get other member nations to comply with recommendations; 
and, NMFS must strengthen its ability to establish responsible fishing 
practices in other countries and protect this global resource.
    Response: Contrary to the assertion that an examination of data 
over a longer time series would reveal an increase in billfish biomass 
over time, an examination of Atlantic billfish biomass, catch, CPUE, 
and fishing mortality rate data back to the late 1950s shows an even 
more extreme decline in biomass than an examination of more recent time 
series. To use Atlantic blue marlin as an example, biomass of Atlantic 
blue marlin was an estimated 200 percent of MSY in the late 1950s and 
declined to just 40 percent of MSY by 2000. CPUE during the same period 
fell by more than 80 percent and total Atlantic catches of blue marlin 
fell from approximately 9,000 mt to just over 2,000 mt. These dramatic 
declines were accompanied by similarly large increases in the fishing 
mortality rate, which rose from less than 0.3 to approximately 4.0.
    Based on SCRS data, catches of U.S. flagged vessels represent 4.5 
percent of catches reported to ICCAT. U.S. action alone is not 
sufficient to fully recover stocks of Atlantic billfish, and reductions 
in catches, landings, and post-release mortalities from the pelagic 
longline and recreational fisheries, at both the international and 
domestic levels, are essential to the recovery of the Atlantic 
billfish. Appropriate domestic management measures, including 
implementation of circle hook requirements and ICCAT recommendations, 
as contained in this final rule, among others, can and should be 
implemented at this time.
    The 250 marlin landing limit was contained in an ICCAT 
recommendation (00-13) championed by the U.S., supported by the U.S. 
recreational, commercial, and government ICCAT commissioners, and 
adopted by ICCAT. Recommendation 00-13 established a number of 
additional stringent conservation measures on other nations to improve 
the stock status of Atlantic marlin, including mandatory reductions in 
landings of blue and white marlin by 50 percent and 67 percent, 
respectively, among others. For the period 2001 through 2004, the U.S. 
has averaged 189 recreationally landed marlins, or approximately 75 
percent of the landing limit each year. In two of those four years, the 
U.S. was more than 100 marlin, or the equivalent of more than 40 
percent, below the U.S. landing limit, and U.S. fishermen are free to 
practice catch and release fishing, which is the dominant practice in 
the fishery by choice. The U.S. has championed, and will continue to 
champion, billfish conservation internationally.
    Comment 65: The biggest threat to Atlantic billfish is illegal, 
unregulated, and unreported (IUU) fishing activities by foreign 
longline vessels. ICCAT nations must agree to eliminate these 
activities. No further restrictions should be placed upon U.S. 
recreational billfish fishermen until the problems associated with IUU 
fishing are addressed, and a further reduction in bycatch by legitimate 
longline vessels is achieved.
    Response: IUU fishing represents a threat to the health of Atlantic 
billfish populations, and as such, the U.S. continues to work through 
ICCAT to address this issue as rapidly and efficiently as possible. 
Reductions in bycatch and bycatch mortality from the pelagic longline 
and recreational fisheries, at both the international and domestic 
levels, are essential to the

[[Page 58149]]

recovery of the Atlantic billfish. Further, there are appropriate 
domestic management measures, including implementation of circle hook 
requirements and ICCAT recommendations, as per the selected 
alternatives in this final rule, among others, that can and should be 
implemented while concurrently working to end IUU fishing at the 
international level.
    Comment 66: To reduce billfish mortality, commenters suggested 
consideration or adoption of a number of international positions and 
trade restrictive actions by the U.S. including: imposition of trade 
penalties and tariffs on other countries that do not adhere to ICCAT 
billfish recommendations; initiating action at ICCAT to stop longlining 
worldwide; prohibition of all longlining in the U.S. immediately; and, 
prohibiting the importation of any fish from other countries whose 
vessels deploy longlines, do not adhere to ICCAT quotas, and do not 
require circle hooks on longlines.
    Response: NMFS has imposed import restrictions on swordfish below 
the ICCAT minimum size, and may consider imposing future trade 
restrictions on any ICCAT species, in accordance with adopted ICCAT 
recommendations to impose trade restrictions. Multilateral trade 
restrictions, such as ICCAT recommendations, are an effective tool for 
addressing nations whose vessels fish in a manner that undermines the 
effectiveness of ICCAT conservation and management measures. Pelagic 
longline gear is the predominant gear type for harvesting highly 
migratory species and, with application of appropriate management 
measures, can provide for the sustainable harvest of fisheries 
resources in many instances. As described in the response to comments 
related to alternative B7, NMFS is not convinced that an international 
or domestic prohibition on pelagic longline fishing is necessary at 
this time.
    Comment 67: NMFS should not implement any additional management 
measures on billfish until after the ICCAT meeting following the next 
assessments of blue and white marlin; I support alternative E1 (no 
action) because I disagree that we need to put more regulations on US 
fishermen. Our State Department needs to be listening to the U.S., but 
they do not care that they are putting U.S. fishermen out of business. 
What the U.S. cares about is leading by example without compliance. The 
U.S. still does not take international compliance at ICCAT seriously. 
The U.S. should say that it would not do anything to domestic fishermen 
unless we see better international compliance through ICCAT. Why is 
NMFS in such a hurry to put more regulations on U.S. fishermen?
    Response: Reductions in bycatch and bycatch mortality from the 
pelagic longline and recreational fisheries, at both the international 
and domestic levels, are essential to the recovery of the Atlantic 
billfish. There are appropriate domestic management measures, including 
implementation of circle hook requirements and ICCAT recommendations, 
as contained in this final rule, among others, that can and should be 
implemented while concurrently working with the international community 
to improve management and compliance with existing ICCAT 
recommendations. The U.S. takes compliance issues at ICCAT very 
seriously and has led efforts at ICCAT to improve compliance at every 
available opportunity. The U.S. has been the driving force behind most 
measures at ICCAT that have resulted in improved compliance with 
management recommendations and data collection requirements.

Changes from the Proposed Rule (August 19, 2005; 70 FR 48804)

    In addition to the correct of minor edits throughout, NMFS has made 
several changes to the proposed rule for management measures related to 
the workshops, the directed billfish fishery, the BFT fishery, 
authorized fishing gears, and regulatory housekeeping issues. These 
changes are outlined below.
    1. In Sec.  635.2, the definition of ``Atlantic HMS identification 
workshop certificate'' was added to the regulatory text in the proposed 
rule. The final rule changes the certificate name to ``Atlantic shark 
identification workshop certificate'' to better reflect the curriculum 
for these workshops. The name of the protected species workshop 
certificate was also modified to protected species safe handling, 
release, and identification workshop certificate in order to more 
accurately reflect the workshop objectives.
    2. At Sec.  635.4(l)(1), the final rule was modified to include 
language regarding the requirement to obtain the appropriate workshop 
certificate before transferring permits from one entity to another. The 
change was made because the applicant must submit proof of workshop 
certification with the application for a shark or swordfish limited 
access permit. This modification will ensure that the owner is familiar 
with the proper safe handling, release, and identification techniques 
upon entering into and prior to actively participating the fishery.
    3. In Sec.  635.8(a)(1), the January 1, 2007, deadline for owners 
and operators of vessels that fish with pelagic and bottom longline and 
gillnet gear was changed to require the owners and operators of such 
vessels to possess a workshop certificate prior to renewing their 
commercial shark or swordfish Federal limited access permits in 2007. 
The rolling deadline distributes workshop attendance throughout the 
year, facilitating the implementation and administration of these 
workshops. With attendance likely to be more evenly distributed, owners 
and operators are expected to get more hands on practice with the tools 
and techniques for safe handling and release of protected species. The 
delayed deadline gives participants the opportunity to attend the 
workshop most convenient for them.
    4. The final rule was modified to allow NMFS to issue a certificate 
to any person who has completed the workshop. The reference to 
permitted entity in Sec.  635.8(a)(2) and permitted entity and proxy in 
Sec.  635.8(b)(2) were removed. Removing the term ``permitted'' allows 
individuals, who are not permitted to participate in any of the HMS 
fisheries, to receive the workshop certification (i.e., law 
enforcement, port agents, anglers, etc.). Some permit holders are 
corporations or companies; therefore the term ``person'' refers to 
individuals as well as corporations or companies. Section 3 of the 
Magnuson-Stevens Act defines a ``person'' as: ``any individual (whether 
or not a citizen or national of the United States), any corporation, 
partnership, association, or other entity (whether or not organized or 
existing under the laws of any State), and any Federal, State, local, 
or foreign government or any entity of any such government.''
    5. In Sec.  635.8(b)(1), the deadline for shark dealers to obtain 
an Atlantic shark identification workshop certificate changed from 
January 1, 2007, to December 31, 2007, to provide NMFS with more time 
to develop the workshop curriculum and materials, as well as certify 
all of the shark dealers or their proxies. The delayed deadline gives 
participants the opportunity to attend the workshop most convenient for 
them.
    6. The final rule clarifies that if a shark dealer sends a proxy 
rather than personally attending an Atlantic shark identification 
workshop, a workshop certificate for each proxy representing each place 
of business listed under the shark dealer permit must be submitted

[[Page 58150]]

with the shark dealer permit renewal application pursuant to Sec.  
635.8(b)(5) and (c)(4). Copies of each proxy's workshop certificate is 
proof that an individual from each place of business, authorized to 
receive, purchase, trade, or barter for Atlantic shark under the 
dealer's permit, has attended an Atlantic shark identification workshop 
and is certified in the techniques for identifying sharks to the 
species level in whole and log form.
    7. In Sec.  635.8(c)(1), NMFS requires workshop certificates to be 
renewed three years from the expiration date printed on the 
certificate, rather than prior to the date of issuance as proposed. The 
certificate will be used as the individual's proof of attending a 
workshop and obtaining certification; therefore the expiration date 
printed on the certificate will facilitate monitoring and compliance as 
the deadline for permit renewal will coincide with the workshop 
certification renewal. Individuals, who are grandfathered into the 
workshop requirements, will also be held to the same three year renewal 
requirement as those attending a workshop for the first time in 2007.
    8. The final rule at Sec.  635.8(c)(7) includes a new requirement 
for anyone required to attend the protected species safe handling, 
release, and identification workshop or the Atlantic shark 
identification workshop. The requirement calls for mandatory workshop 
attendees to show a copy of their HMS permit as well as proof of 
identification. This additional requirement ensures that the permit 
holder and the individual attending the workshop are the same person. 
In the case where the permit holder is a company, corporation, 
partnership, or some other type of entity, the individual attending on 
behalf of the permit holder must show proof that the permit holder 
acknowledges the individual as their agent, and they must show a copy 
of the HMS permit. For proxies attending on behalf of a shark dealer 
permit holder, the proxy must have documentation from the dealer 
acknowledging that the proxy is attending on behalf of the Atlantic 
shark dealer permit holder.
    9. In the final rule, at Sec.  Sec.  635.5(c)(2); 635.20(d)(2) and 
(d)(4); 635.21(e)(i); 635.22(b); 635.30(b); and, 635.71(c)(9) text 
prohibiting the take, retention, and possession of Atlantic white 
marlin from January 1, 2007, through December 31, 2011, inclusive, was 
deleted. Elimination of this text reflects the Agency's decision not to 
adopt this alternative, at this time, based on public comment in 
opposition to the proposal, limited ecological gains relative to 
potential economic costs, the upcoming stock assessments for Atlantic 
white marlin, and upcoming international negotiations on the current 
ICCAT rebuilding plan.
    10. In the final rule at Sec.  635.20(d)(4) and Sec.  635.27(d)(3), 
the minimum delay in effective date for in-season minimum size 
increases and/or an in-season shift to catch and release only fishing 
for Atlantic blue and white marlin was modified from 5 days to 14 
calendar-days based on public comment asking for additional time and 
reconsideration of the estimated time necessary to collect and analyze 
landings information and project the date at which regulatory action 
may become necessary.
    11. In the final rule, an effective date of January 1, 2007, was 
added to Sec.  635.21(e)(2)(iii) to clarify when billfish tournament 
anglers would be subject to circle hook requirements.
    12. Text was added to Sec.  635.21 (e)(2)(iii) and Sec.  635.71 
(c)(7) to clarify which tournament anglers would be subject to circle 
hook requirements. This change was made to better inform the public and 
facilitate enforcement.
    13. In the final rule at Sec.  635.27(d)(1), reasons and mechanisms 
for potential adjustment of the annual U.S. Atlantic marlin landings 
limit were identified to provide the public a clearer understanding of 
circumstances and processes under and by which the annual U.S. marlin 
landings limit may be altered.
    14. In the final rule Sec.  635.27(d)(1) and (2) were amended to 
clarify that NMFS will not produce or publish annual marlin landings 
limit specifications at the start of each season. The final rule 
clarifies that NMFS will only produce and publish annual marlin landing 
limit specifications when carryover of underharvest or overharvest, or 
a subsequent ICCAT recommendation, alters the U.S. Atlantic marlin 
landings limit from 250 fish. This change was made to streamline the 
management process, similar to the process used for other HMS.
    15. In the final rule at Sec.  635.27(d)(2), variables identified 
as those which would be considered when determining potential 
adjustments to the annual landing limit of 250 recreationally caught 
Atlantic marlin were modified. The proposed rule mistakenly contained 
variables appropriate for consideration of in-season adjustments to 
marlin minimum sizes and/or a shift to catch and release only fishing 
for Atlantic marlin, but not for adjustment of the annual 250 Atlantic 
marlin landing limit. The inappropriate variables were removed.
    16. In the final rule, text at Sec.  635.27(d)(3) was added to 
clarify the variables that will be considered when the Agency is making 
a determination of whether or not to implement an in-season shift to 
catch and release only fishing for Atlantic blue and white marlin.
    17. In the final rule, text at Sec.  635.71(c)(8) was amended to 
clearly articulate when it is illegal to take, retain, or possess 
Atlantic blue or white marlin.
    18. The proposed alternative in the Draft Consolidated HMS FMP 
regarding the retention of the North/South Angling category dividing 
line was changed in the Final Consolidated HMS FMP. As a result, the 
regulatory text contained in Sec.  635.27(a)(2) has been modified to 
maintain the North/South Angling category dividing line located at 
39[deg]18' N. latitude (Great Egg Inlet, NJ). This dividing line is 
intended to provide a more equitable geographic and temporal 
distribution of recreational fishing opportunities by separating each 
BFT size-class subquota into two geographical regions, the northern 
area (allocated 47.2 percent of the size-class subquotas) and the 
southern area (52.8 percent of the size-class subquotas). This 
management tool was originally intended to ensure reasonable 
recreational fishing opportunities in all geographic areas without 
risking overharvest of the Angling category quota. While this line 
allows NMFS to allocate different retention limits based on the 
migratory pattern of BFT, the effectiveness of this management tool 
depends on NMFS gathering recreational BFT landings information in a 
timely fashion to support real-time management decisions.
    19. A typographical error in Sec.  635.27(a)(7)(ii) is also 
corrected in this final action. The total amount of school BFT that is 
held in reserve for inseason or annual adjustments and fishery-
independent research is equal to 18.5 percent of the total school BFT 
quota for the Angling category. In the proposed rule, the metric ton 
equivalent to this calculation was published as 36.6 mt, this was in 
error and is corrected to the actual amount of 22.0 mt.
    20. In the List of Fisheries (LOF) at Sec.  600.725(v), under IX, 
Secretary of Commerce (H), has been modified to combine the Atlantic 
Tunas, Swordfish, and Shark FMP with the Atlantic Billfish FMP, 
consistent with the consolidation of those FMPs in this final rule. The 
LOF was also modified to limit the use of speargun fishing gear to BAYS 
tunas only. The modification to exclude BFT from the allowed list of

[[Page 58151]]

target species for this new gear type was made because of the declining 
performance of the existing BFT fishery, recent quota limited 
situations within the recreational angling sector, and ongoing concerns 
over the status of the stock. The LOF was further modified to clarify, 
consistent with existing regulations at Sec.  635.21(e)(4)(iv), the 
authorized gears for the recreational swordfish fishery. Finally, in 
the final rule, green-stick was removed from the tuna handgear fishery 
in the LOF, as further described in item 25 below.
    21. In Sec.  635.21(e)(1)(i) and (ii), the authorized gear section 
for Atlantic tunas Angling and Charter/Headboat categories, the use of 
speargun fishing gear for Atlantic tunas has been restricted to the 
recreational BAYS tuna fishery only. The proposed rule was modified to 
exclude BFT from the list of allowable tuna species due to declining 
performance of the existing BFT fishery, recent quota limited 
situations within the recreational angling sector, and ongoing concerns 
over the status of the stock.
    22. In Sec.  635.21(f), the gear operation and deployment 
restrictions section for speargun fishing gear, the proposed rule has 
been amended to include, consistent with the changes in item 21 above, 
a restriction which limits the use of speargun fishing gear to the 
recreational BAYS tuna fishery only. Additionally, the regulatory text 
has been clarified to state that persons authorized to fish for 
Atlantic BAYS tunas with speargun gear must be physically in the water 
when the speargun is fired or discharged, given that the speargun does 
not use an explosive device.
    23. In the final rule, at Sec.  635.31(a)(1), the ability to sell 
tunas harvested with speargun gear has been modified. The proposed rule 
would have allowed the sale of speared BAYS tunas from HMS Charter/
Headboat category vessels, subject to applicable limits, and would not 
have allowed the sale of large medium or giant BFT taken with speargun 
fishing gear at Sec.  635.31(a)(1). In the final rule, Sec.  
635.31(a)(1) has been modified to state specifically that persons may 
not sell or purchase Atlantic tunas, BAYS or BFT, harvested with 
speargun fishing gear. This modification clarifies that authorizing 
this gear type for recreational speargun fishermen allows them the 
opportunity to use speargun fishing gear to target BAYS tunas only, 
recreationally.
    24. To reinforce speargun fishing gear operation and deployment 
restrictions at Sec.  635.21(f) and restrictions on sale and purchase 
at Sec.  635.31(a)(1), additional prohibitions have been added at Sec.  
635.71(b). Under this section, it is unlawful for any person or vessel 
subject to the jurisdiction of the United States to: fish for any HMS, 
other than Atlantic BAYS tunas, with speargun fishing gear; sell, 
purchase, barter for, or trade for an Atlantic BAYS tuna harvested with 
speargun fishing gear; fire or discharge speargun gear without being 
physically in the water; use speargun gear to harvest a BAYS tuna 
restricted by fishing lines or other means; or, use speargun gear to 
fish for BAYS tunas from a vessel that does not possess a valid HMS 
Angling or Charter/Headboat permit.
    25. Based on public comments, as described in the Response to 
Comments section of the preamble, NMFS has determined to clarify the 
currently allowed use of the green-stick gear rather than proceed with 
authorization and definition of the gear-type in a manner that may 
further add to confusion and have unintended negative consequences to 
fishery resources and participants. Accordingly, all references to 
green-stick gear that were contained in the proposed rule have been 
removed. These references were contained in the LOF at Sec.  
600.725(v), and in the HMS regulations at Sec.  635.2, Sec.  
635.21(e)(1), Sec.  635.21(e)(1)(ii) and (iii), and Sec.  635.31(a)(1).
    26. In Sec.  635.2, the definition of buoy gear has been modified. 
In the proposed rule, this definition contained language restricting 
the gear operation and deployment. This regulatory text has been 
removed from the definition of buoy gear and has been moved to the gear 
operation and deployment restrictions at Sec.  635.21(e)(4)(iii). 
Additionally, NMFS has altered the definition of buoy gear in the final 
rule in response to public comment. The proposed rule limited fishermen 
utilizing buoy gear to deploying only one buoy per individual buoy 
gear. The final rule allows the use of more than one floatation device 
per gear and allows fishermen to configure the gear differently 
depending on vessel and crew capabilities, or weather and sea 
conditions. In the final rule, buoy gear is defined as a fishing gear 
consisting of one or more floatation devices supporting a single 
mainline to which no more than two hooks or gangions are attached.
    27. In Sec.  635.2, a definition of ``floatation device'' has been 
added to clarify the intent of the buoy gear definition at Sec.  635.2 
and the gear operation and deployment restrictions at Sec.  
635.21(e)(4)(iii). Further, this definition is responsive to public 
comment and better reflects the operational reality of this fishery. 
The inclusion of this definition rectifies potential problems in 
enforcing the float restriction in the proposed rule.
    28. In Sec.  635.6(c)(1) and (2), buoy gear has been added to the 
list of gears for which there are specific gear marking requirements.
    29. In Sec.  635.21(e)(4)(iii), the gear operation and deployment 
restrictions for buoy gear have been modified to require that vessels 
utilizing buoy gear may not possess or deploy more than 35 floatation 
devices and to clarify the original intent of the proposed rule. The 
proposed rule stated that vessels may not possess or deploy more than 
35 individual buoys per vessel. This modification was made to allow for 
additional flexibility in constructing and deploying this gear type, as 
discussed in item 26 above. The additional restrictions added to 
clarify the intent of the rule include: buoy gear must be constructed 
and deployed so that the hooks and/or gangions are attached to the 
vertical portion of the mainline; floatation devices may be attached to 
one, but not both ends of the mainline, and no hooks or gangions may be 
attached to any floatation device or horizontal portion of the 
mainline; if more than one floatation device is attached to a buoy 
gear, no hook or gangion may be attached to the mainline between them; 
individual buoy gears may not be linked, clipped, or connected together 
in any way; and, if a gear monitoring device is positively buoyant and 
rigged to be attached to a fishing gear, it is included in the 35 
floatation device vessel limit and must be marked appropriately.
    30. To reinforce buoy gear operation and deployment restrictions at 
Sec.  635.21(e)(4)(iii), prohibitions have been added at Sec.  
635.71(e). Under this section, it is unlawful for any person or vessel 
subject to the jurisdiction of the U.S. to: fish for, catch, possess, 
retain, or land an Atlantic swordfish using, or captured on, buoy gear 
as defined at Sec.  635.2, unless the vessel owner has been issued a 
swordfish directed LAP or a swordfish handgear LAP in accordance with 
Sec.  635.4(f); as the owner of a vessel permitted, or required to be 
permitted, in the swordfish directed or a swordfish handgear LAP 
category, and utilizing buoy gear, to possess or deploy more than 35 
individual floatation devices, to deploy more than 35 individual buoy 
gears per vessel, or to deploy buoy gear without affixed monitoring 
equipment, as specified at Sec.  635.21(e)(4)(iii); fail to mark each 
buoy gear as required at Sec.  635.6(c); possess any HMS, other than 
Atlantic swordfish, harvested with buoy gear; or, fail to

[[Page 58152]]

construct, deploy, or retrieve buoy gear as specified at Sec.  
635.21(e)(4)(iii).
    31. In addition to the restrictions set forth in the proposed rule 
at Sec.  635.21(b), the regulatory text has been modified to state that 
no person may use secondary gears to capture, or attempt to capture, 
free-swimming or undersized HMS. This language was modified to 
differentiate between primary and secondary gears.
    32. In Sec.  635.71(a), the general prohibitions section, a 
prohibition has been added to reinforce the general gear operation and 
deployment restrictions at Sec.  635.21(b). The prohibition in the 
final rule states that, it is unlawful for any person or vessel subject 
to the jurisdiction of the U.S. to utilize secondary gears to capture, 
or attempt to capture, any undersized or free-swimming HMS, or fail to 
release a captured HMS as specified at Sec.  635.21(a).
    33. In the proposed rule, NMFS added regulatory text at Sec.  
635.5(a)(1) specifying that the annual ``cost-earnings'' reporting form 
from selected vessels was to be submitted by January 31 of the 
following year. In the final rule, the regulatory text has been 
clarified and changed to specify that the ``Annual Expenditures'' 
reporting form from selected vessels is required to be submitted by the 
date specified on the form. The date currently specified on the form is 
January 31 of the following year, but this modification will allow NMFS 
to change the date on the form through a revision to the Paperwork 
Reduction Act submission without conducting a separate rulemaking to 
change the regulatory text. NMFS is considering, based on public 
comment, modifying the date to April 15 of the following year to 
coincide with Federal tax return submission deadlines. NMFS has 
clarified the title of the form to more accurately reflect its actual 
title.
    34. In the proposed rule, the regulatory text at Sec.  635.5(c)(2) 
would be modified to indicate that vessel owners, rather than anglers, 
are required to report all non-tournament recreational landings of 
Atlantic billfish and North Atlantic swordfish to NMFS. Based upon 
public comment indicating that some vessel owners may be absent while 
having another captain operate the vessel, the regulation in the final 
rule has been modified to indicate that vessel owners, or their 
designee, are required to report non-tournament recreational landings 
of these species to NMFS. The vessel owner would still be responsible 
for reporting, but the owner's designee could fulfill the requirement.
    35. The proposed rule at Sec.  635.21(c)(1)(i) and (d)(4)(i) stated 
that the percent of pelagic species that bottom longline vessels could 
possess in PLL closed areas was to be measured relative to the weight 
of demersal species possessed or landed, and that the percent of 
demersal species that pelagic longline vessels could possess in BLL 
closed areas was to be measured relative to the weight of pelagic 
species possessed or landed, respectively. In the final rule, at Sec.  
635.21(c)(1) and (d)(4), this procedure is corrected and clarified to 
indicate that the percent of either type of species is to be measured 
relative to the total weight of all indicator species that are listed 
in Tables 2 and 3 of Appendix A to part 635.
    36. The proposed rule at Sec.  635.21(c)(1)(ii) and (d)(4)(ii) 
would have established an upper and lower limit on the number of 
commercial fishing floats that bottom and pelagic longline vessels, 
respectively, could possess or deploy if fishing in an HMS closed area. 
Based upon public comment indicating that this measure could severely 
reduce the operational flexibility of longline vessels, and 
consultations with NMFS Office of Law Enforcement indicating that the 
proposed regulation was impractical, NMFS has decided to remove this 
measure from the final regulations.
    37. In the Draft Consolidated HMS FMP, NMFS preferred alternative 
I10(b), which would have amended the regulatory text to clarify that 
carry-over provisions would apply to the NED set-aside. However, after 
subsequent analysis of the ICCAT recommendation and in response to 
comments seeking clarification, the Agency determined that the ICCAT 
recommendation provides the flexibility to avoid any potential negative 
environmental impacts associated with this alternative. Therefore, 
alternative I10(c) is the final alternative in the Final Consolidated 
HMS FMP. Under this alternative, NMFS will conduct additional 
discussions at ICCAT regarding the long-term implications of allowing 
unused BFT quota from the previous year to be added to the subsequent 
year's allocation. Depending upon the results of these discussions, the 
regulations and operational procedures may need to be further amended 
in the future. In the interim, NMFS will maintain the proposed 
regulatory text at Sec.  635.27(a)(3) and Sec.  635.23(f)(3), as it 
meets the objectives being addressed regarding this issue, but will 
amend the practice of allowing under/overharvest of this set-aside 
allocation to be rolled into, or deducted from, the subsequent fishing 
year's set-aside allocation.
    38. NMFS has modified the proposed list of demersal ``indicator'' 
species in Table 3 of Appendix A to part 635 by removing silky sharks 
and three species of hammerhead sharks from the final list, because 
these species could potentially be caught on both pelagic and bottom 
longlines. Also, three species of tilefish are added to the final list 
of demersal ``indicator'' species, because these species are indicative 
of bottom longline fishing activity and based upon public comment.
    39. In the final rule, NMFS modified the name of the FMP in Sec.  
635.34(b) to reflect the consolidation of the two previous FMPs into 
one.

Agency Decision on the Blue Ocean Institute's Petition for Rulemaking 
to Close an Area of the Gulf of Mexico from April through June

    One of the Gulf of Mexico time/area closure alternatives that NMFS 
considered was suggested in a petition for rulemaking from Blue Ocean 
Institute et al. This alternative was suggested 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 a putative BFT spawning area from April through 
June (101,670 nm\2\; 3 months). Assuming no redistribution of effort 
(i.e., all affected vessels no longer fish with pelagic longline), the 
logbook data indicated that this alternative would potentially reduce 
bycatch of all of the species being considered from a minimum of 0.8 
percent for pelagic sharks to a maximum 21.5 percent for BFT. However, 
assuming that effort is redistributed to open areas (i.e., all affected 
vessels fish with pelagic longline in open areas), bycatch was 
predicted to increase for all species except leatherback and other sea 
turtles. Even BFT discards, which showed a fairly dramatic decline 
without redistribution of effort, were predicted to increase by 9.8 
percent with redistribution of effort. The apparent increase in 
predicted BFT discards with redistribution of effort was likely due to 
the fact that BFT are caught in months other than April through June in 
the Gulf of Mexico, as well as the high number of BFT discards in other 
areas. This was reflected in some of the other alternatives analyzed as 
described in the HMS FMP. When effort was redistributed to only the 
open areas of the Gulf of Mexico and in an area in the Atlantic where 
many Gulf of Mexico vessels have reported fishing, there was a 
predicted decrease in bycatch of white

[[Page 58153]]

marlin, leatherback and other sea turtles, and pelagic shark discards, 
BFT discards, yellowfin tuna discards, and BAYS tuna discards. However, 
the analysis also predicted an increase in bycatch of blue marlin, 
sailfish, spearfish, and large coastal sharks.
    This alternative based on the petition 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 9.9 percent for incidentally-caught BFT 
(kept) to a maximum 27.0 percent for bigeye tuna. 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 was 
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 have been a net gain in revenues for this alternative with 
redistribution of effort of approximately $1,651,023 annually, or 
$25,797 per vessel annually. The actual ecological and economic impacts 
of the alternative would likely be in between no redistribution of 
effort and the full redistribution of effort model. As described in the 
Final HMS FMP and in the response to Comment 26 of the time/area 
section, NMFS also evaluated additional scenarios between these base 
scenarios when some movement is expected into a particular area (i.e., 
instead of being uniformly distributed to all open areas), depending on 
the spatial and temporal duration of the closure. For this particular 
alternative for the petition, in addition to the base scenarios, NMFS 
also evaluated the movement of fishing effort to other open areas in 
the Gulf of Mexico and to a specific area in the Atlantic Ocean. Due to 
the potential negative ecological impacts, negative economic impacts, 
and the increase in bycatch and discards based on the different 
redistribution of effort scenarios, NMFS is not selecting this 
alternative at this time.
    In addition to the variability of impacts across species, all of 
the analyses, including those for the petition for rulemaking, were 
conducted using J-hook data. New circle hook management measures were 
put into place in 2004, and NMFS is still assessing the effects of 
circle hooks on bycatch rates for HMS. Until NMFS can better evaluate 
the effects of circle hooks on bycatch reduction, especially with 
regard to sea turtle interactions and bycatch of other non-target HMS, 
NMFS chooses, at this time, not to modify the current time/area 
closures. NMFS intends to reconsider modifications to existing closures 
once further analyses of circle hook data and the results of the stock 
assessments for blue marlin, white marlin, north and south swordfish, 
and eastern and western BFT become available. Pending the results of 
the marlin, swordfish, and BFT stock assessments, the criteria could 
allow for additional closures or modifications of existing closures to 
be considered for all HMS fisheries, including those to reduce the 
incidental takes of BFT.
    Although NMFS is not selecting this alternative based on the 
petition at this time, NMFS will pursue alternatives to reduce bycatch 
in the Gulf of Mexico, especially for spawning BFT. NMFS has currently 
adopted all of the ICCAT recommendations regarding BFT, a rebuilding 
plan is in place domestically for this species, and NMFS has 
implemented measures to rebuild this overfished stock. NMFS is 
currently assessing different protections for different ages of BFT and 
how such protection will affect the BFT stock as a whole. For instance, 
how will protecting spawning BFT in the Gulf of Mexico help rebuild the 
stock if it results in increased discards of juvenile and sub-adult BFT 
along the U.S. east coast? NMFS needs more information to further 
understand how to manage this species given its complex migratory 
patterns, life history, and age structure. NMFS is also considering 
developing incentives that would dissuade fishermen from keeping 
incidentally caught BFT, particularly spawning BFT, in the Gulf of 
Mexico. This may involve research on how changes in fishing practices 
may help reduce bycatch of non-target species as well as the tracking 
of discards (dead and alive) by all gear types. In addition, NMFS is 
also considering the effects of sea surface temperatures in the Gulf of 
Mexico and its association with congregations of BFT and putative BFT 
spawning grounds in the Gulf of Mexico (Block, pers. comm.). NMFS 
intends to investigate the variability associated with sea surface 
temperatures as well as the temporal and spatial consistency of the 
association with these temperature regimes. By better understanding 
what influences the distribution and timing of BFT in the Gulf of 
Mexico, NMFS can work on developing tailored management measures over 
space and time to maximize ecological benefits while minimizing 
economic impacts, to the extent practicable.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq. NMFS has determined that the final 
rule and related Final Consolidated HMS FMP are consistent with the 
national standards of the Magnuson-Stevens Act, other provisions of the 
Act, and other applicable laws.
    NMFS prepared an FEIS for the Final Consolidated HMS FMP. The FEIS 
was filed with the EPA on July 7, 2006. A notice of availability was 
published on July 14, 2006 (71 FR 40096). In approving this final rule 
and the Final Consolidated HMS FMP, NMFS issued a ROD identifying the 
selected alternatives. A copy of the ROD is available from NMFS (see 
ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule contains no new collection-of-information 
requirements subject to review and approval by OMB under the PRA.
    An informal consultation under the ESA was concluded for the Final 
Consolidated HMS FMP on January 25, 2006. As a result of the informal 
consultation, the Regional Administrator determined that fishing 
activities conducted under this rule are not likely to affect adversely 
endangered or threatened species or critical habitat. As described in 
the Final Consolidated HMS FMP, the final management measures are not 
expected to cause significant changes in fishing practices, 
distribution of fishing, or fishing effort. As such, reinitiation of 
consultation with respect to the previously concluded HMS biological 
opinions is not required under 50 CFR 402.16.
    In addition to the impacts of the final alternatives in this 
document, NMFS continues to monitor impacts to protected species from 
the ongoing operation of HMS fisheries through various logbook and 
observer programs. NMFS monitors observed interactions with marine 
mammals and sea turtles in the pelagic longline fishery on a quarterly 
basis and reviews the data in conjunction with extrapolated annual take 
estimates for appropriate action, if any, as necessary. Should 
additional management measures be deemed necessary to reduce bycatch or 
bycatch mortality of protected species in the pelagic longline or other 
HMS fisheries, NMFS would take appropriate action in a separate 
rulemaking.
    The AA has determined that this rule is consistent to the maximum 
extent practicable with the enforceable policies of the coastal states 
in the Atlantic, Gulf

[[Page 58154]]

of Mexico, and Caribbean that have federally approved coastal zone 
management programs under the Coastal Zone Management Act (CZMA). In 
August 2005, NMFS provided all states, Puerto Rico, and the U.S. Virgin 
Islands copies of the proposed rule and Draft Consolidated HMS FMP. 
Under 15 CFR 930.41, states have 60 days to respond after receipt of 
the consistency determination and supporting materials. States can 
request an extension of 15 days. If a response is not received within 
those time limits, NMFS can presume concurrence (15 CFR 930.41(a)). 
Eleven states replied, within the 60-day response period, that the 
proposed regulations were consistent, to the extent practicable, with 
the enforceable policies of their coastal zone management programs. The 
State of Georgia replied on March 1, 2006, that the proposed rule was 
not consistent with the enforceable policies of Georgia's coastal zone 
management program. NMFS notified the State of Georgia that because 
their response was after the 60-day response period, NMFS presumed 
concurrence after the end of the CZMA review period and would consider 
their comment as part of the public comments received on the proposed 
rule and Draft Consolidated HMS FMP. NMFS has presumed concurrence with 
the states that did not respond. NMFS will continue to work with the 
states to ensure consistency between state and Federal regulations.

A Summary of the Final Regulatory Flexibility Analysis

    As required under the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) 
for the Draft Consolidated HMS FMP and its proposed rule (70 FR 48804, 
August 19, 2005) and prepared an FRFA for the Final Consolidated HMS 
FMP and this final rule. The FRFA examines the economic impacts of the 
management alternatives on small entities in order to determine ways to 
minimize economic impacts. The FRFA incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, NMFS responses to those comments, and a summary of the analyses 
completed to support the action. A summary of the information presented 
in the FRFA follows. Where applicable, within each section of the FRFA, 
the issues are addressed in the same order they were in the FEIS and in 
the Response to Comment section of this final rule, starting with 
Workshops and ending with Regulatory Housekeeping Measures. The Final 
Consolidated HMS FMP provides further discussion of the economic 
impacts of all the alternatives considered. Copies are available (see 
ADDRESSES).

Statement of the Need for and Objectives of the Final Rule

    The need for and objective of the final rule are fully described in 
the preamble of the proposed rule (70 FR 48804, August 19, 2005) and in 
the Final Consolidated HMS FMP and are not repeated here (5 U.S.C. 
604(a)(1)). In summary, the selected actions in this final rule will: 
establish mandatory workshops for commercial fishermen and shark 
dealers; implement complementary time/area closures in the Gulf of 
Mexico (GOM); implement criteria for adding new or modifying existing 
time/area closures; address rebuilding and overfishing of northern 
albacore tuna and finetooth sharks; implement recreational management 
measures for 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 to a 
calendar year; authorize speargun fishing gear in the recreational 
fishery for bigeye, albacore, yellowfin, and skipjack (BAYS) tunas; 
authorize buoy gear in the commercial swordfish handgear fishery; 
clarify the allowance of secondary gears (also known as cockpit gears); 
and clarify existing regulations.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA

    A FRFA is also required to include a summary of the significant 
issues raised by the public comments in response to the IRFA, a summary 
of the assessment of the issues raised, and a statement of any changes 
made in the rule as a result of the comments (5 U.S.C. 604(a)(2)). NMFS 
did not receive any comments specific to the IRFA but did receive many 
comments on the Draft Consolidated HMS FMP as a whole and the general 
economic impacts of the proposed regulations. All the comments received 
and NMFS' responses to those comments are summarized above under 
Response to Comments. Additionally, NMFS describes the changes to the 
proposed rule (some of these changes were a result of public comment) 
above, under Changes from the Proposed Rule. The paragraphs below 
summarize some of the specific economic concerns that were raised and 
NMFS' response.
A. Workshops
    NMFS received many public comments both in support of and opposed 
to the protected species workshops. Some commenters were concerned 
about potential lost revenue on longline trips if bycatch were to be 
handled correctly, and recommended not limiting these workshops to 
longline fishermen. Some comments supported extending the workshop 
requirements to include all HMS fishermen, as well as expanding the 
release techniques to include additional species. NMFS received many 
comments suggesting that various combinations of owners, operators, and 
crew members be required to participate in the workshops. Commenters 
noted that if the crew members are not required to attend, then the 
operators should be responsible for training the crew. Several 
commenters opposed requiring the crew to be certified because of their 
transient nature and the fact that some crew members are not U.S. 
citizens and may not be available to attend workshops. A few commenters 
supported grandfathering in the industry certified individuals, so that 
they do not need to attend the first round of mandatory workshops (they 
would still need to be recertified).
    This rule will require that vessel owners and operators attend the 
workshops. This requirement for vessel owners and operators balances 
the ecological need to ensure that fishermen on the vessel can use the 
handling and release gear appropriately and the economic costs to the 
fishermen to attend the workshops. While the final rule will not 
require crew members to attend the workshops, it is likely that 
operators and owners would disseminate this information to the crew in 
a cost effective manner. NMFS encourages all workshop participants to 
disseminate this information to all crew members involved with haul-
back or fishing activities. This rule will also grandfather in the 
industry-certified individuals. While NMFS realizes that many vessel 
owners may not operate or be present on the vessels during fishing 
trips, certifying vessel owners ensures that they are aware of the 
certification requirements and protocols. The owners are, then, 
accountable for preventing their vessel from engaging in fishing 
activities without a certified operator on board. NMFS did not change 
the proposed rule as a result of these comments, but did clarify 
portions of the regulatory text to ensure the implementation is clear.
    NMFS received several comments in support of time periods for 
renewal of certification that were different than the proposed 
alternative. NMFS is maintaining the original preferred alternative of 
recertification generally

[[Page 58155]]

every three years in order to balance the ecological benefits of 
maintaining familiarity with the protocols and species identification, 
and the economic impacts of workshop attendance due to travel costs and 
lost fishing opportunities.
    NMFS received comments regarding the need for proxies for dealers 
attending shark identification workshops under alternative A9, the 
flexibility required in certifying newly hired proxies, and the need 
for multiple proxies. Alternative A9 was modified to address these 
comments and allow for dealer proxies. Because not all shark dealer 
permit holders may be onsite where vessels unload their catches, this 
rule will permit a local proxy to attend the workshop to obtain the 
proper training in species-specific shark identification, while 
allowing the permit holder to meet the certification requirements. 
Furthermore, since the actual permit holders may not be involved in 
fish house activities, the workshops would more effectively decrease 
the reporting of unknown sharks if a proxy who is directly involved 
with fish house activities attends and obtains the training in lieu of 
the permit holder. If a dealer opts to send a proxy, then the dealer 
would be required to designate a proxy from each place of business 
covered by the dealer's permit. A proxy would be a person who is 
employed by a place of business, covered by a dealer's permit, a 
primary participant in identification, weighing, or first receipt of 
fish as they are offloaded from a vessel, and involved in filling out 
dealer reports.
    According to public comment, NMFS should anticipate turnover in 
dealer proxies. To address this, the Agency is allowing one-on-one 
training sessions that would accommodate the replacement of a proxy 
whose employment was terminated on short notice. These sessions would 
be at the expense of the permit holder.
    Public comments were supportive of mandatory HMS identification 
workshops for federally permitted shark dealers, but also suggested 
that these workshops be available to others, such as the recreational 
and commercial fishery, law enforcement, port agents, and state shark 
dealers. While these workshops would be mandatory for federally 
permitted shark dealers, NMFS would try to accommodate other interested 
individuals when it is feasible. At well-attended workshops, those 
persons for whom the workshops are mandatory would be given priority in 
terms of hands-on instruction.
B. Time/Area Closures
    NMFS also received comments on the time/area closure alternatives. 
A number of commenters expressed concern over the effort redistribution 
model used to analyze these alternatives. These commenters felt that 
pelagic longline vessels were not mobile enough to redistribute effort 
uniformly and that vessels in a certain area would move to adjacent 
areas (e.g., vessels homeported in the Gulf of Mexico would stay in the 
Gulf of Mexico and would not move into the mid-Atlantic bight). NMFS 
received comments that different approaches to effort redistribution 
should be considered, particularly for closures of bluefin tuna in 
spawning areas in the Gulf of Mexico. As a result, NMFS considered 
redistribution of effort based on an analysis of the mobility of the 
PLL fleet and known effort displacement currently taking place out of 
the Gulf of Mexico. Based on this revised approach, NMFS determined 
that the closures in the Gulf of Mexico could increase bycatch for some 
of the species being considered. Therefore, NMFS decided not to 
implement any new time/area closures, other than complementary closures 
for Madison-Swanson and Steamboat Lumps.
    During the comment period, NMFS also received comments regarding a 
``decision matrix'' that could help to guide the choices that NMFS 
would have to make between different time/area closures and different 
species, that NMFS should set bycatch reduction goals, and that the 
bycatch reduction goals of the existing closures have already been met 
and, therefore, the Agency should reopen portions of the current 
closures. As discussed in the response to Comment 20 in the Time/Area 
Closures section, NMFS agrees that decision matrices and bycatch 
reduction goals could be useful, but does not believe that NMFS could 
use these concepts to appropriately balance the needs of the different 
species involved at this time. NMFS did not change the proposed rule as 
a result of these comments.
C. Northern Albacore Tuna
    NMFS did not receive many comments in regard to the alternatives 
considered for northern albacore tuna. None of the comments received 
were in regard to the economic impacts. NMFS did not change the 
preferred alternative as a result of public comment.
D. Finetooth Sharks
    NMFS received a range of public comments regarding finetooth shark 
alternatives indicating support and opposition to Alternatives D2-D4, 
and additional comments, including, but not limited to: comments on 
gillnet fisheries in general, the use of VMS, the results of the 2002 
SCS stock assessment, reporting of HMS by dealers, identification of 
finetooth sharks, and the accuracy of data attained from MRFSS. All of 
these comments were considered prior to selection of the final 
alternative for preventing overfishing of finetooth sharks. NMFS did 
not change the proposed alternative as a result of these comments. 
Additional measures may be necessary to prevent overfishing of 
finetooth sharks in the future.
E. Atlantic Billfish
    NMFS received many comments regarding Atlantic billfish 
alternatives. NMFS received substantial public comment opposing and 
supporting circle hook requirements proposed under draft alternatives 
E2 and E3. A prevalent theme of the comments opposing mandatory circle 
hook use, in all or portions of the HMS and billfish recreational 
fisheries, was that the recreational sector has a minor impact on 
Atlantic billfish populations relative to the commercial pelagic 
longline fleet. Given the relatively small size of the U.S. domestic 
pelagic longline fleet and the considerable size of the recreational 
fishing fleet, NMFS determined that it was appropriate to examine 
billfish mortality from the domestic perspective in addition to working 
internationally through ICCAT. NMFS did not change the proposed action, 
alternative E3, as a result of public comment. The final action will 
require non-offset circle hooks at all billfish tournaments if natural 
or natural/artificial baits are used.
    A second important theme in comments opposing mandatory circle hook 
use under alternatives E2 and E3 was the need for NMFS to promulgate 
more detailed specifications for circle hooks. NMFS is continuing to 
work on various definitions of circle hooks that may lead to a more 
refined hook definition in the future. However, NMFS finds that it is 
appropriate to require the use of circle hooks in portions of the 
recreational billfish fishery, at this time, to reduce post-release 
mortalities in the recreational billfish fishery.
    NMFS also received comments that billfish tournament operators 
would need advance notice of impending circle hook regulations to allow 
for production of rules, advertising, and informing tournament 
participants of potential circle hook requirements. In response, NMFS 
spoke to a number of tournament

[[Page 58156]]

operators in the Atlantic, Gulf of Mexico and Caribbean to better 
understand various aspects of tournament operations, and determined 
that a delayed date of effectiveness of no less than six months would 
be necessary to minimize adverse impacts to tournament operators and 
participants. Significant outreach efforts have been undertaken by NMFS 
since the release of the FEIS in July 2006 to address the need for 
advanced notice. Therefore, the effective date of the requirement will 
be January 1, 2007. This effective date in combination with continued 
outreach effort by NMFS will provide billfish tournament anglers 
additional time to familiarize themselves and become proficient in the 
use of circle hooks, while allowing tournament operators to adjust 
tournament rules, formats, and informational materials, as appropriate, 
thereby minimizing any potential adverse socio-economic impacts. 
Additionally, given the concerns expressed from fishermen in the mid-
Atlantic region since the release of the FEIS regarding this 
requirement, NMFS intends to work cooperatively with tournaments and 
anglers to research other bait and/or hook and bait combinations that 
would achieve the same ecological benefits.
    NMFS also received public comments regarding the perceived limited 
ecological impact of the 250 marlin landings limit. These comments 
could be categorized into two opposing views that suggest two different 
courses of action. Some commenters suggested that the limited 
ecological impact was not worth any potential adverse economic impact, 
even a very limited one, while other commenters suggested that the U.S. 
must implement the 250 marlin landings limit to comply with U.S. 
international obligations and as part of a strategy to implement 
appropriate measures to help limit billfish mortality. Related to these 
comments, NMFS received suggestions recommending that the Agency 
automatically carry forward any underharvest to the following 
management period. Given that the known level of U.S. recreational 
marlin landings has been within the 250 fish limit for three of the 
four reported years, and that the 2002 overharvest was offset by the 
2001 underharvest, the ecological benefits of this alternative are 
likely limited. As noted above, in the response to Comments 3 and 5 of 
the Atlantic Billfish section, this rule allows underharvests to be 
carried forward. However the U.S. has made a commitment to ICCAT not to 
carry forward underharvest, given the uncertainty surrounding landings 
of Atlantic marlin in the Commonwealth of Puerto Rico and the U.S. 
Caribbean, until such time as this is resolved. Thus, NMFS is not 
changing the proposed alternative. This rule is anticipated to allow 
the U.S. to continue to successfully pursue international marlin 
conservation measures by fully implementing U.S. international 
obligations and potentially provide a minor ecological impact with, at 
most, minor adverse economic impacts.
    NMFS received public comment opposed to, and in support of, the 
Atlantic white marlin catch and release alternative. The commenters 
opposed to the alternative expressed concerns over potential adverse 
economic impacts to the fishery if catch and release only fishing for 
Atlantic white marlin were required. The commenters supporting the 
landings prohibition stated concerns over white marlin stock status, 
the ESA listing review, and maintaining leadership at the international 
level. Based on these comments as well as a number of other factors, 
including but not limited to, the impending receipt of a new stock 
assessment for Atlantic white marlin and upcoming international 
negotiations on Atlantic marlin, NMFS changed its preferred alternative 
and chose not to prohibit landings of Atlantic white marlin in this 
final rule. The implementation of circle hook requirements (alternative 
E3) is an important first step in reducing mortality in the directed 
billfish fishery. NMFS will consider, as necessary and appropriate, 
catch and release only fishing options for Atlantic white marlin as 
well as other billfish conservation measures in future rulemakings.
F. BFT Quota Management
    NMFS received public comment in the past regarding the publication 
and timing of annual BFT specifications. Administrative or other delays 
in publishing the annual BFT specifications can have adverse social and 
economic impacts due to constituents' inability to make informed 
business decisions. NMFS did not change the proposed alternative as a 
result of public comment on the proposed rule. Under this rule, the 
annual BFT quota specifications would establish baseline domestic quota 
category allocations, and adjust those allocations based on the 
previous years under- and/or overharvest. Any delay in publishing the 
annual BFT quota specifications would prolong the establishment of a 
baseline quota in any of the domestic categories.
    Fishermen have commented that knowing the exact schedule of BFT 
RFDs prior to the season facilitates planning and scheduling of trips. 
The preferred alternative F6 should help facilitate the development of 
timely schedules. NMFS did not change the proposed alternative as a 
result of public comment on the proposed rule.
G. Timeframe for Annual Management of HMS Fisheries
    Preferred Alternative G2, which would change the timeframe for 
annual management of HMS fisheries, was modified because the comment 
period on the proposed rule was extended. The fishing year in 2007, 
rather than 2006 as described in the Draft Consolidated HMS FMP, would 
be compressed. During the public comment period, several commenters 
expressed concern about the effect of a calendar year management cycle 
on the availability of quota rollover from the previous calendar year 
during the January portion of the south Atlantic fishery. Under changes 
to the BFT management program included in this rule, the January 
subperiod would receive a quota of 5.3 percent of the annual ICCAT 
allocation.
H. Authorized Fishing Gears
    With regard to authorized gears, there were public comments in 
support of preferred alternative H2 to authorize speargun fishing as a 
permissible gear type for recreational Altantic BAYS tuna. NMFS 
received comments indicating that recreational spearfishermen place a 
high value on spearfishing for tunas, and are currently traveling 
outside of the United States for the opportunity to participate in 
tunas speargun fisheries. The final rule will allow recreational BAYS 
fishing. This is a modification from the proposed rule that would have 
also allowed recreational fishing for BFT. Due to concern over the 
status of BFT, NMFS decided not to allow spearfishing for BFT at this 
time.
    During the public comment period, NMFS received comments expressing 
confusion over the current regulatory regime regarding green-stick 
gear, unease over the potential impacts and intent of the preferred 
alternative in the Draft Consolidated HMS FMP, and concern over 
potential negative impacts of the green-stick gear. Therefore, NMFS is 
not finalizing alternative H4, which would have authorized green-stick 
gear. Rather, NMFS will work with the industry to ensure participants 
are familiar with current regulations.
    In regard to buoy gear, NMFS received public comments requesting 
that commercial vessels be limited to deploying fewer than 35 
individual buoy gears. Additionally, commercial

[[Page 58157]]

fishermen familiar with this gear type requested that they be allowed 
to attach multiple floatation devices to buoy gears to aid in 
monitoring and retrieval, as well as allow them to use ``bite 
indicator'' floats that will alert them to gears with fish attached. In 
response to public comment, NMFS modified the preferred alternative to 
allow fishermen to use more than one floatation device per gear and 
configure the gear differently depending on vessel and crew 
capabilities, or weather and sea conditions. This increased flexibility 
may result in positive social impacts and increased safety at sea.
I. Regulatory Housekeeping Measures
    The public also provided comments on the proposed regulatory 
housekeeping alternatives. NMFS requested public comment regarding 
whether or not to define ``fishing floats'' in the regulations, and on 
potential language for a ``float'' definition. Several commenters 
indicated that the number of floats is not an appropriate gauge to 
determine the type of fishing gear that is being deployed, and that the 
presence of ``bullet floats,'' anchors, or the type of mainline would 
be better indicators. Other commenters stated a float requirement would 
be an unnecessary burden that could diminish the flexibility of vessel 
operators to participate in different fishing activities, depending 
upon the circumstances. Finally, consultations with NMFS Office of Law 
Enforcement indicated that the float requirement in alternative I1(b) 
would not be practical. Based on these comments, NMFS chose not to 
prefer alternative I1(b) in the FEIS. Although alternative I1(b) was 
preferred in conjunction with alternative I1(c) in the Draft 
Consolidated HMS FMP, NMFS believes that the objective of this 
alternative can be effectively achieved by implementing alternative 
I1(c) (species composition of catch) alone.
    On the basis of public comment, NMFS modified the list of demersal 
``indicator'' species associated with alternative I1(c) from the list 
in the Draft Consolidated HMS FMP by removing silky, great hammerhead, 
scalloped hammerhead, and smooth hammerhead sharks from the list, and 
by adding tilefish, blueline tilefish, and sand tilefish to the list. 
NMFS believes these changes are appropriate because these shark species 
can be caught on both pelagic and bottom longlines, and because the 
tilefish species are representative of demersal fishing activity.
    NMFS received comments indicating that alternative I1(c) could 
adversely affect longline vessels that fish, at least part of a trip, 
in HMS closed areas and that catch both demersal and pelagic species on 
those trips. Similar to the comments received regarding alternative 
I1(b), there were concerns that, by establishing a species threshold 
when fishing in HMS closed areas, this alternative would restrict the 
flexibility of longline vessel operators to participate in different 
fishing activities depending upon the circumstances. Also, adverse 
economic impacts could result if vessel operators are unable to retain 
a portion of their catch that otherwise would have been retained on 
mixed fishing trips in the closed areas, or if they must choose to fish 
outside of the closed areas. NMFS received other comments indicating 
that there could be additional costs on vessels if they are boarded at 
sea by enforcement, and it was necessary to retrieve or observe fish in 
the hold in order to calculate the percentages of demersal and pelagic 
species possessed onboard. The Agency, however, still finds that this 
preferred alternative is important in maintaining existing time/area 
closures.
    NMFS received comments supporting and opposing preferred 
alternative I2(b), which will require that the second dorsal fin and 
anal fin remain on all sharks through landing. Some comments confirmed 
that retention of the second dorsal and anal fins through landing could 
improve shark identification and species-specific landing data. Other 
comments indicated that this alternative would do little to improve 
shark identification. NMFS received comments that, although these fins 
are valuable, retaining them until landing was acceptable. The Agency 
received a comment opposing this alternative due to the additional time 
and revenue losses that may result from removing the smaller/secondary 
fins after docking. NMFS is finalizing this proposed alternative. While 
offloading and processing procedures may initially have to be adjusted, 
in the long-term this alternative will facilitate improved quota 
monitoring and stock assessment data which could result in a larger 
quota and larger net revenues for both the fishermen and dealers.
    Public comment suggests that, among active fishery participants, a 
requirement for handlines to remain attached to all vessels could 
potentially reduce the number of handlines that could be fished or 
deployed. Operationally, it may be less efficient to fish with several 
attached handlines, as they may be more prone to entanglement. Because 
this alternative could restrict or limit fishing effort and because 
NMFS does not know the number of handline users that already attach the 
handline to the vessel, it is projected to produce unquantifiable 
positive ecological impacts, including a reduction in the bycatch of 
undersized swordfish, other undersized species, protected species, and 
target species catches. Based upon public comment the practice of 
detaching handlines does not appear to be widespread, but it may be 
growing among a small number of vessel operators, primarily targeting 
swordfish in the East Florida Coast closed area. According to public 
comment, recreational swordfish catches would most likely be affected, 
as that is the primary target species. If few recreational vessels are 
currently fishing with unattached handlines, then any social or 
economic impacts associated with this alternative would be minimal. 
NMFS did not change this alternative between proposed and final rules.
    NMFS received comments indicating that the proposed alternative 
(I9(b)), which would require vessel owners to report non-tournament 
recreational landing of North Atlantic swordfish and Atlantic billfish, 
could potentially disadvantage absentee vessel owners. Based upon this 
public comment, NMFS modified this alternative slightly from the 
proposed rule by specifying that a vessel owner's designee may also 
report landings in lieu of the owner, but the owner would be 
responsible for the requirement.
    Finally, NMFS received several general comments regarding the 
information presented regarding the HMS recreational sector. Section 
3.5.2 of the FEIS provides detailed information regarding the data 
available and past research concerning HMS recreational fisheries. 
Economic data on recreational fishing is difficult to collect and 
challenging to interpret. Nevertheless, NMFS has undertaken efforts to 
improve, update, and expand upon the economic information regarding HMS 
recreational fisheries.

A Description and an Estimate of the Number of Small Entities to which 
the Rule will Apply

    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. 604(a)(3)), and the SBA size standards for defining 
a small versus large business entity in this industry. 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. A full description of the

[[Page 58158]]

fisheries affected, the categories and number of permit holders, and 
registered tournaments can be found in the Final Consolidated HMS FMP.
    The management measures in this final rule will apply to all HMS 
permit holders. These currently include the approximately 576 permitted 
pelagic and bottom longline vessels, 240 directed shark and 312 
incidental shark permitted vessels, 4,824 General category permit 
holders, 621 permitted shark and swordfish dealers, 416 permitted 
Atlantic tuna dealers, 4,173 CHB permit holders, 25,238 Angling permit 
holders, and 256 registered HMS tournaments. 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 final measures, particularly time/area 
closures, Atlantic billfish, and authorized gear alternatives. However, 
the rule does not apply directly to them, unless otherwise noted above. 
As such, economic impacts on these other sectors (dealers, processors, 
bait houses, and gear manufacturers) are discussed in Final 
Consolidated HMS FMP.

A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Final Rule

    This final rule will not result in additional reporting, 
recordkeeping, and compliance requirements that will require new 
Paperwork Reduction Act filings (5 U.S.C. 604(a)(4)). However, some of 
the final measures will modify existing reporting and recordkeeping 
requirements. These include mandatory one day workshops for vessel 
owners, vessel operators, and shark dealers; coordination efforts 
directed at government efforts to gather additional information about 
finetooth shark mortality; and BFT dealer electronic reporting option. 
In addition to the reporting and recordkeeping requirements of this 
rule, this rule includes compliance requirements (5 U.S.C. 604(a)(4)). 
These compliance requirements include requiring anglers aboard HMS 
permitted vessels that are participating in an Atlantic billfish 
tournament to use only non-offset circle hooks when deploying 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. Other measures will change quota 
allocations, timeframes, authorized gear types, definitions, and other 
management measures, but will not likely change reporting or compliance 
in the fishery.

A Description of the Steps Taken to Minimize the Significant Economic 
Impact on Small Entities

    One of the requirements of a FRFA is to describe the steps the 
agency has taken to minimize the significant economic impact on small 
entities consistent with the stated objectives of applicable statutes 
and to describe why each of the other significant alternatives to the 
rule considered by the agency was rejected (5 U.S.C. 604(a)(5)).
    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, the final FMP will 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.
    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, BFT quota management, 
timeframe for annual management, authorized fishing gears, and 
regulatory housekeeping measures.
A. Workshops
    The final measures for the protected species safe handling, 
release, and identification workshops require mandatory workshops and 
certification on a three year renewal timeline for all HMS pelagic and 
bottom longline vessel owners and operators and shark gillnet vessel 
owners and operators. They were designed to minimize the economic 
impacts on fishermen, while complying with the 2003 BiOp and the post-
release mortality targets for protected resources established in the 
June 2004 BiOp. The protected species safe handling, release, and 
identification workshops measure is estimated to cost each bottom and 
pelagic longline vessel owner up to $281 and $448, respectively, in 
potentially lost revenue share as well as unquantifiable travel costs 
to attend a workshop. The aggregate economic impact is estimated to be 
between $154,269 and $258,048 in the first year. Longline vessel 
operators will also be affected by this rule, but this rule might not 
affect the economic well-being of the small businesses for which they 
work. In addition, the estimated twenty shark gillnet owners that will 
be participating in required workshops will each lose up to $424 in 
revenue share based on 2004 logbook data, as well as unquantified 
travel costs to attend a workshop.
    NMFS will 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, NMFS does not anticipate any additional 
costs for workshop participants. NMFS will 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, this rule limits mandatory participation in these 
workshops to owners and operators. NMFS has also selected a 
recertification period of 3 years that will 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. Two, three, and five year recertification periods were 
considered. 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, and would allow allow private certified trainers to 
provide training at tailored times and locations to minimize any costs.
    The measures requiring mandatory workshops for all federally 
permitted shark dealers was selected 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 will 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. Dealers may also specify proxies to attend workshops in order 
to increase flexibility, minimize costs, and increase the probability 
of having a trained individual at each authorized dealer location. 
Similar measures as those being considered for the protected species 
safe handling, release, and identification recertification are being 
considered for the Atlantic shark identification workshops for shark 
dealers in order to minimize the economic impacts caused by this 
measure.

[[Page 58159]]

    Several alternatives were considered for the workshop measures. The 
economic impacts of these alternatives are detailed in Final 
Consolidated HMS FMP. The No Action and voluntary HMS identification 
workshop alternatives would have less onerous economic impacts relative 
to the measures in this final rule. However, these alternatives would 
not address the persistent problems associated with species-specific 
shark identification in dealer reports, nor satisfy the requirements 
and goals of the Final Consolidated HMS FMP, nor aid in rebuilding the 
shark fishery.
    NMFS also considered two additional renewal timetables of two and 
five years. A renewal timetable of five years for protected species 
safe handling, release, and identification 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 shark 
species identification.
B. Time/Area Closures
    The final measures to implement complementary measures in the 
Madison-Swanson and Steamboat Lumps marine reserves, and to establish 
criteria to be considered when implementing new time/area closures or 
modifying existing time/area closures, were designed to minimize 
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. The establishment of complementary 
HMS regulations in the Madison-Swanson and Steamboat Lumps marine 
reserves will result in minimal economic impacts (e.g., only three 
commercial sets were reported in these areas between 1996 - 2004). 
Creating these complementary HMS regulations will consolidate and 
simplify requirements for fishermen, and therefore simplify compliance. 
This measure will allow surface trolling from May through October to 
partially alleviate any negative economic impacts associated with the 
closures for the HMS recreational and charter/headboat sector.
    Other time/area 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 BFT 
spawning areas 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 closures 
alternatives were not selected due to large economic impacts (ranging 
from an estimated decrease in annual revenues as high as $10.9 million 
for a closure west of 86[deg] W longitude year-round closure in the 
Gulf of Mexico under the no-redistribution of effort model) with 
variable ecological benefits between species when considering the 
redistribution of effort. The details of the economic impacts 
associated with these other alternatives are provided in Final 
Consolidated 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, which would 
provide some economic relief but would not meet ecological needs, and 
may result in increased interactions with protected resources.
    The final measure will establish criteria that will guide future 
decision-making regarding implementation or modification of time/area 
closures. This will provide enhanced transparency, predictability, and 
understanding of HMS management decisions. The time/area closure 
criteria will 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.
C. Northern Albacore Tuna
    The selected alternative for northern albacore management, which 
will 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 measure will have minimal economic impacts, 
because it will not implement any additional restrictions 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 
U.S. would likely not be effective in rebuilding the stock because the 
U.S. is a small participant in this fishery, and would have larger 
economic impacts than the selected alternative. The No Action 
alternative was rejected, because it would not include a rebuilding 
strategy in the FMP.
D. Finetooth Sharks
    The final measure selected for finetooth shark management was 
designed to implement a plan that prevents overfishing while minimizing 
economic impacts incurred by fishermen and potential negative 
ecological impacts. This alternative is expected to have minimal to no 
economic impacts, because no new restrictions are being proposed at 
this time. Long-term, the alternative will have positive ecological and 
economic impacts by implementing a plan to address finetooth mortality 
in HMS and other fisheries.
    Other alternatives considered were No Action, commercial management 
measures (e.g., gear restrictions, quota reduction), and recreational 
management measures (e.g., gear restrictions, minimum size increase). 
Only the No Action alternative would have less economic impact relative 
to the preferred alternative. However, this alternative was not 
preferred because it would not implement a plan to prevent overfishing 
of finetooth sharks.
E. Atlantic Billfish
    The final measures for Atlantic billfish management require the use 
of non-offset circle hooks by anglers fishing from HMS permitted 
vessels participating in Atlantic billfish tournaments when deploying 
natural baits or natural bait/artificial lure combinations and 
implementing the ICCAT marlin landings limits. This requirement is 
designed to minimize economic impacts incurred by the recreational 
fishing sector, while enhancing the management of the directed Atlantic 
billfish fishery. Requiring the use of non-offset circle hooks by 
anglers fishing from HMS permitted vessels participating in Atlantic 
billfish tournaments when deploying natural baits or natural bait/
artificial lure combinations will likely have a minimal economic 
impact, since it will not affect all billfish recreational anglers, but 
only tournament participants. Therefore, the impacts on hook 
manufacturers, retailers, and anglers will likely be limited given that 
J-hooks would continue to be permitted outside of tournaments and 
within tournaments with artificial lures. Impacts on tournaments will 
likely be minimal, given the increase in the

[[Page 58160]]

number of tournaments that provide special award categories or 
additional points for billfish captured and released on circle hooks. 
This measure will 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 the ICCAT marlin landings limits. These include the use of 
three separate levels of management measures based upon marlin landing 
thresholds: (1) no in-season management action if marlin landings do 
not approach action thresholds; (2)in-season minimum size increases to 
slow the pace of marlin landings for the remainder of the fishing year, 
if projections show the 250 marlin landing limit is being approached; 
and, (3) a shift to catch and release only fishing for Atlantic marlin 
for the remainder of a fishing year, if the 250 marlin landing limit is 
achieved or projected to be achieved. Under the calendar year 
management cycle, this three tiered approach also will 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 fishing year. The ICCAT landing limit measures 
may potentially result in $1.3 to $2.7 million in economic impacts 
annually, if in-season management actions become necessary. However, 
barring substantial increases in effort and/or a change in angler 
behavior, this is considered unlikely based on historical landings 
trends.
    Other alternatives considered for the directed billfish fishery 
were No Action, limiting all participants in the Atlantic HMS 
recreational fishery to using only non-offset circle hooks when 
deploying 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, allowing only catch and release 
fishing for Atlantic white marlin, 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 measures in this 
rule. However, the No Action alternative would not satisfy the 
requirements and goals of implementing the ICCAT recommendations under 
ATCA, rebuilding the Atlantic blue and white marlin fishery under the 
Magnuson-Stevens Act, or the objectives of the HMS FMP. While the other 
alternatives may have additional ecological benefits for billfish, the 
other alternatives would have larger economic impacts than the selected 
alternatives and could affect all HMS anglers, not only those who are 
fishing for billfish.
F. BFT Quota Management
    The final measures for BFT 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 BFT 
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 measures were designed to minimize economic 
impacts incurred by fishermen, while enhancing and clarifying BFT quota 
management and inseason actions.
    Revised General category time-periods and subquotas to allow for a 
formalized winter fishery will likely balance consistent quota 
allocations and the flexibility to amend them in a timely fashion. This 
measure will slightly reduce General category quota from early time 
periods, thereby allowing for a winter General category BFT fishery 
during the months of December and January, and increasing 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 will be mitigated by the increased revenue 
generated in the later time-period.
    The revised procedures for calculating the Angling category school 
size-class subquota allocation will clarify the procedures NMFS uses in 
calculating the ICCAT recommendation regarding the 8 percent tolerance 
for BFT under 115 cm. It would also maintain the north/south dividing 
line that separates the Angling category. This alternative is not 
likely to have an economic impact.
    The modification of the BFT specification process and streamlining 
annual under/overharvest procedures will simplify quota allocations by 
eliminating the need to allocate each domestic quota category's 
baseline allocation each year, as the allocation percentages and the 
actual quota equivalents (measured in metric tons) will be codified in 
the regulations implementing the consolidated HMS FMP at least until 
ICCAT alters its BFT TAC recommendation. This measure will 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.
    Establishing an individual quota category carryover limit for BFT 
and authorization of the transfer of quota exceeding the limit will 
have some economic impacts as a result of limiting the amount of 
underharvest of the BFT quota that could be rolled over from one year 
to the next within a category. However, this measure 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.
    Revised and consolidated criteria that would be considered prior to 
performing a BFT inseason action will result in slightly more positive 
economic impacts as the criteria NMFS must consider when making an 
inseason action determination will be consolidated and consistent 
regardless of what type of inseason action is being considered. This 
will minimize confusion and provide additional transparency to the 
management process.
    Other alternatives considered regarding bluefin tuna quota 
management 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 relative to the selected final measures.
G. Timeframe for Annual Management of HMS Fisheries
    The final measure that would shift the time frame to a calendar 
year (January 1 to December 31) management cycle was designed to 
minimize economic impacts on HMS fisheries and simplify HMS fishery 
management and reporting to ICCAT. This measure will not affect the 
shark fishery, since that fishery is already operating under a calendar 
year.

[[Page 58161]]

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 BFT 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 billfish measures 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 BFT and 
swordfish, the 2007 fishing year would be abbreviated from June 1, 
2007, through December 31, 2007, which could provide slightly higher 
quotas during that time period and slight positive impacts for 
fishermen.
    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 this final rule. However, they 
would not meet the objectives of this action because these alternatives 
would not simplify the management program for HMS fisheries and improve 
the U.S. basis for negotiations at international forums that use 
calendar year reporting data.
H. Authorized Fishing Gears
    The final measures to authorize speargun fishing gear for BAYS 
tunas in the recreational Atlantic tuna fishery, authorize buoy gear in 
the commercial swordfish handgear fishery, and allow secondary gears 
(also known as cockpit gears), were designed to reduce the economic 
impacts to fishermen and even enhance economic opportunities in 
recreational and commercial fishing. Specifically, the measure 
authorizing speargun fishing will enhance economic opportunities in the 
tuna recreational fishery by including a new authorized class of 
recreational fishing, speargun fishing.
    The swordfish handgear fishery may currently utilize individual 
handlines attached to free-floating buoys; however, the final measure 
will require that handlines used in HMS fisheries be attached to a 
vessel. Changing the definition of individual free-floating buoyed 
lines, that are currently considered to be handlines, to ``buoy gear,'' 
will allow the commercial swordfish handgear fishery to continue 
utilizing this gear type. This measure will explicitly authorize this 
gear type but limit vessels to possessing and deploying no more than 35 
individual floatation devices with each gear having no more than two 
hooks or gangions attached. The economic impact of this measure will 
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. Furthermore, few current permit holders 
reporting fishing with this gear (only seven vessels in 2004) and the 
use of this gear appears limited to the East Coast of Florida.
    Finally, the measure clarifying the allowance of secondary gears 
(also known as cockpit gears) will likely reduce confusion over the 
allowable use of secondary gears to subdue HMS captured on primary 
authorized 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 fishing gear in both the commercial tuna handgear 
and recreational tuna fisheries, authorizing green-stick fishing gear, 
and authorizing buoy gear in the commercial swordfish handgear fishery 
with 50 floatation devices with no more than 15 hooks or gangions 
attached to each gear. None of the non-preferred alternatives would 
have fewer economic impacts than the preferred alternatives. The 
alternative to authorize speargun fishing gear in both the commercial 
tuna handgear and recreational tuna fisheries was not selected because 
it could result in some additional effort from commercial handgear tuna 
fishing and potentially impact BFT stocks. Green-stick gear was not 
preferred because of a lack of data from established monitoring 
programs to determine the ecological impacts of formally introducing 
this gear and the potential for increases in fishing effort and 
landings on YFT and other HMS. Finally, the alternative authorizing 
buoy gear in the commercial swordfish handgear fishery with 50 
floatation devices and no more than 15 hooks or gangions attached was 
expected to have additional negative ecological impacts compared to the 
preferred alternative.
I. Regulatory Housekeeping Measures
    The final measures 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 final measure that will 
differentiate between BLL and PLL gear by using the species composition 
of catch landed will more clearly define the difference between BLL and 
PLL gear using performance standards based on the composition of catch 
landed. This will help to 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 BLL and PLL 
performance standards. This performance based standard could adversely 
impact those longline vessels that regularly target both demersal and 
pelagic species on the same trip, and that fish in PLL or BLL closed 
areas.
    Other alternatives considered in addition to the No Action 
alternative were to specify maximum and minimum number of floats for 
BLL and PLL gear, 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 alternative. However, the No Action alternative would not 
address the Agency's concerns with differentiating between bottom and 
pelagic longline gear. The Agency did not prefer the alternative that 
would specify a maximum and minimum allowable number of commercial 
fishing floats to distinguish between BLL and PLL fishing gear because 
floats are not easily defined and the alternative may be impracticable 
to enforce. The float requirement could also result in unnecessary 
burden that could diminish the flexibility of vessel operators to 
participate in different fishing activities, depending on the 
circumstances. Requiring the use of time/depth recorders was not 
preferred because they could cost vessels between $1,400 and $6,600 to 
acquire and the reduced efficiencies associated with their use could 
cause increases in the mortality of discarded fish. The Agency did not 
select the alternative that based HMS time/area closures on all 
longline vessels since it would have significant economic impacts.
    The final measure for shark identification, which will require that 
the second dorsal fin and anal fin remain attached on all sharks, 
addresses issues associated with shark species identification, but will 
be flexible enough to allow fishermen to remove the most valuable fins 
in order to minimize the economic impacts of this

[[Page 58162]]

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 that all fins on all sharks be retained. The No Action 
alternative and the alternative requiring the dorsal and anal fin on 
all sharks except lemon and nurse sharks could have fewer economic 
impacts relative to the preferred alternative. These alternatives, 
however, would not satisfy enforcement and species identification 
needs, such as improving the accuracy of dealer reporting of sharks 
landed by species needed for accurate stock assessments and quota 
monitoring, and enabling enforcement officers to identify when 
fishermen illegally keep fins from species that are different from 
those they land or species that cannot be landed. Furthermore, 
requiring all fins to remain on all sharks through landing would result 
in the largest economic burden of any of the alternatives since the 
current offloading process and the transition of fish between dealers 
and fishermen is dependent on fins being removed from the shark before 
the sharks are offloaded.
    The final measures that will prohibit the purchase or sale of HMS 
from vessels in excess of retention limits will enhance compliance with 
current regulations by consolidating the requirement for both vessels 
and dealers. These measures will 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 of eliminating the potential 
for the sale of illegally harvested HMS in excess of commercial 
retention limits.
    The final measure to clarify the regulations for the East Florida 
Coast closed area will make its outer boundary consistent with the 
outer boundary of the EEZ. This measure is not expected to have any 
economic impact since fishing activity is likely to be limited in this 
small area. The alternative is to retain the current technical error 
under the No Action alternative, which results in confusion.
    The measure to clarify the definition of ``handline gear'' by 
requiring that they remained attached to, or in contact with, a vessel 
is expected to have only minimal economic impacts, since unattached 
handline gear would be defined as ``buoy gear'' and authorized 
exclusively for use in the directed commercial swordfish fishery. Other 
alternatives considered were No Action and to require handlines be 
attached to recreational vessels only. These two alternatives could 
have fewer economic impacts relative to the selected alternative, but 
they would not meet the ecological objectives of the final Consolidated 
HMS FMP of limiting the potential future expansion of the handline 
sector and possibly reducing the amount of gear lost.
    The final measure prohibiting commercial vessels from retaining 
billfish will not have any economic impacts because current regulations 
do not allow these vessels to sell billfish that are landed. This 
alternative will clarify and consolidate the requirements for 
commercial vessels to make them consistent with the regulations 
prohibiting vessels with pelagic longline gear from retaining billfish. 
The only other alternative considered was No Action, which could have 
less social impacts than the selected alternative but it would not 
satisfy ecological needs of rebuilding billfish stocks because there is 
potential that commercial fishermen could retain billfish for their own 
personal use under the No Action alternative.
    The final measure that will allow Atlantic tuna dealers the 
flexibility to submit reports using the Internet, once this option is 
available, will potentially simplify reporting and reduce costs. The 
other alternatives considered were No Action and requiring BFT dealers 
to report online (with specific exceptions). These alternatives would 
not result in less economic burden than the final rule because it would 
provide dealers with the option of a more efficient data reporting 
option that might better fit with their operations.
    The final measures requiring and specifying submission dates of no 
fishing, cost-earnings, and annual expenditures reporting forms will 
clarify current regulations and potentially enhance compliance. The 
other alternative considered was No Action; that alternative would not 
meet the NMFS' objectives to collect quality data to manage the fishery 
because fishermen were not providing complete and accurate data. 
Neither alternative is expected to have any economic impacts.
    The final measure that will require vessel owners, or their 
designee, to report non-tournament recreational landings will 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 
Consolidated HMS FMP because NMFS suspects that individual recreational 
fishermen may not properly report landings.
    The final measures will include a provision to conduct additional 
discussions at ICCAT regarding the long-term implications of allowing 
unused BFT quota from the previous year being added to the subsequent 
year's allocation. Depending on the results of these discussions, the 
regulations and operational procedures may need to be further amended 
in the future. In the interim, NMFS would maintain the current 
regulatory text, but would amend the practice of allowing under/
overharvest of the set-aside allocation to be rolled into, or deducted 
from, the subsequent fishing year's set-aside allocation. Other 
alternatives considered include No Action and amending the regulatory 
text to clarify that rollover provisions would apply to this set-aside 
quota. Accumulation of incidental quota under a rollover provision 
could possibly provide an incentive to target BFT with longline gear, 
and thus this alternative would not fully reflect the intent of the 
2002 ICCAT BFT quota recommendation.
    Finally, the final measure that will require recreational vessels 
with a Federal permit to comply with Federal regulations regardless of 
where they are fishing, would standardize compliance with HMS 
regulations for vessels possessing a Federal HMS permit. This will 
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 simplify and 
enhance compliance with HMS recreational fishing regulations.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. Copies of the

[[Page 58163]]

compliance guide for this final rule is available (see ADDRESSES).

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: September 22, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR chapters 
III and VI as follows:

CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES

PART 300--INTERNATIONAL FISHERIES REGULATIONS

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

0
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.

0
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.
* * * * *

0
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 U.S. 
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 U.S. Once a system is available, permit 
holders will also be able to submit the forms electronically via the 
Internet.
* * * * *

CHAPTER VI--FISHERY CONSERVATION AND MANAGEMENT, NATIONAL OCEANIC AND 
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
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.

0
5. Section 600.725, paragraph (v), heading ``IX. Secretary of 
Commerce'', is amended by:
    A. Redesignating entries 1.B. through 1.J. as entries 1.C. through 
1.K., respectively.
    B. Redesignating entry 2. as entry 1.L. and entry 3. as entry 2., 
respectively.
    C. Adding entry 1.B.
    D. Revising entry 1. introductory paragraph, entry 1.A, and newly 
redesignated entries 1.I. and 1.L.
    The additions and revisions read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

------------------------------------------------------------------------
                  Fishery                       Authorized gear types
------------------------------------------------------------------------
* * * * *
IX. Secretary of Commerce
1. Atlantic Highly Migratory Species         ...........................
 Fisheries (FMP):
  A. Swordfish handgear fishery............  A. Rod and reel, harpoon,
                                              handline, bandit gear,
                                              buoy gear.
  B. Swordfish recreational fishery........  B. Rod and reel, handline.
* * * * *
  I. Tuna recreational fishery.............  I. Speargun gear (for
                                              bigeye, albacore,
                                              yellowfin, and skipjack
                                              tunas only); Rod and reel,
                                              handline (all tunas).
* * * * *
  L. Atlantic billfish recreational fishery  L. Rod and reel.
* * * * *
------------------------------------------------------------------------

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
6. The authority citation for part 635 continues to read as follows:

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


PART 635  [AMENDED]

0
7. In part 635, remove the phrase ``Northeast Distant closed area'' 
wherever it appears and add in its place ``Northeast Distant gear 
restricted area''.

0
8. Section 635.2 is amended by:
    A. Revising the definitions of ``East Florida Coast closed area'', 
``Fishing year'', ``Handgear'', ``Handline'', and ``Shark''.
    B. Revising paragraph (5) under the definition of ``Management 
unit''.
    C. Removing the definition of ``ILAP''.
    D. Adding definitions, in alphabetical order, for ``Atlantic shark 
identification workshop certificate'', ``BAYS'', ``Buoy gear'', 
``Floatation device'', ``Madison-Swanson closed area'', ``Protected 
species safe handling, release, and identification workshop 
certificate'', ``Speargun fishing gear'', and ``Steamboat Lumps closed 
area''.
    The additions and revisions read as follows:


Sec.  635.2  Definitions.

* * * * *
    Atlantic shark identification workshop certificate means the 
document issued by NMFS, or its designee, indicating that the person 
named on the certificate has successfully completed the Atlantic shark 
identification workshop.
* * * * *
    BAYS means Atlantic bigeye, albacore, yellowfin, and skipjack tunas 
as defined in Sec.  600.10 of this part.
* * * * *
    Buoy gear means a fishing gear consisting of one or more floatation 
devices supporting a single mainline to which no more than two hooks or 
gangions are attached.
* * * * *

[[Page 58164]]

    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--
    (1) For Atlantic tunas and swordfish, before January 1, 2008 -- 
June 1 through May 31. On or after January 1, 2008 -- January 1 through 
December 31.
    (2) For Atlantic billfish, On or after January 1, 2007 -- January 1 
through December 31.
    (3) For sharks -- January 1 through December 31.
* * * * *
    Floatation device means any positively buoyant object rigged to be 
attached to a fishing gear.
* * * * *
    Handgear means handline, harpoon, rod and reel, bandit gear, buoy 
gear, or speargun 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.; and 
29[deg]17' N. lat., 85[deg]50' W. long.
    Management unit * * *
* * * * *
    (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 safe handling, release, and identification 
workshop certificate means the document issued by NMFS, or its 
designee, indicating that the person named on the certificate has 
successfully completed the Atlantic HMS protected species safe 
handling, release, 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 fishing 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 speargun'' for the purposes of this part means a speargun that 
stores potential energy provided from the operator's muscles, and that 
releases 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.; and 
28[deg]14' N. lat., 84[deg]48' W. long.
* * * * *

0
9. In Sec.  635.4, paragraphs (a)(10), (c)(2), (d)(4), (e)(1), (e)(2), 
(f)(1), (f)(2), (h)(2), (l)(1), (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 of a vessel with a valid swordfish, 
shark, HMS Angling, or HMS Charter/Headboat permit issued 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 U.S. EEZ, or outside the U.S. 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 pertaining to HMS, persons aboard the 
vessel must abide by the state's more restrictive regulations.
* * * * *
    (c) * * *
    (2) A vessel with a valid Atlantic Tunas General category permit 
issued 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 a valid Atlantic Tunas General category 
permit is fishing in such a tournament, such vessel must comply with 
HMS Angling category regulations, except as provided in paragraph 
(c)(3) of this section.
* * * * *
    (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 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

[[Page 58165]]

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) * * *
    (1) General. A permit issued under this section is not transferable 
or assignable to another vessel or owner or dealer; it is valid only 
for the vessel or owner or dealer to whom it is issued. If a person 
acquires a vessel or dealership and wants to conduct activities for 
which a permit is required, that person must apply for a permit in 
accordance with the provisions of paragraph (h) of this section or, if 
the acquired vessel is permitted in either the shark, swordfish, or 
tuna longline fishery, in accordance with paragraph (1)(2) of this 
section. If the acquired vessel or dealership is currently permitted, 
an application must be accompanied by the original permit, by a copy of 
a signed bill of sale or equivalent acquisition papers, and the 
appropriate workshop certificates as specified in Sec.  635.8.
    (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 initially issued the LAP, whether 
through refitting, replacement, or transfer. Such an increase may not 
exceed 20 percent of the baseline specifications of the vessel 
initially issued the LAP.
    (C) Subsequent to the issuance of a limited access permit, the 
vessel's length overall, gross registered tonnage, and net tonnage may 
be increased only once, relative to the baseline specifications of the 
vessel initially issued the LAP, whether through refitting, 
replacement, or transfer. An increase in any of these three 
specifications of vessel size may not exceed 10 percent of the baseline 
specifications of the vessel initially issued the LAP. 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 for commercial purposes. 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, persons must 
submit a renewal application to NMFS, along with a copy of the 
applicable valid workshop certificate or certificates, 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 if 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 and Sec.  
300.185 of this title, 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 U.S. that fishes for, possesses, lands or sells shark or 
swordfish from the management unit, 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 to renew a limited access permit(s). 
Transferors may not renew limited access permits that have been 
transferred according to the procedures of paragraph (l) of this 
section.

0
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) Logbooks. If an owner of an HMS charter/headboat vessel, an 
Atlantic tunas vessel, a shark vessel, 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 owner of an HMS charter/headboat vessel, Atlantic tunas 
vessel, shark vessel, or swordfish vessel, permitted 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-

[[Page 58166]]

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 Atlantic Highly Migratory Species 
Annual Expenditures form(s) postmarked no later than the date specified 
on the form of the following year.
* * * * *
    (b) * * *
    (2) * * *
    (i) * * *
    (A) Landing reports. Each dealer with a valid Atlantic tunas permit 
issued 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 with a valid Atlantic tunas 
permit issued 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, or the 
owner's designee, 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 of North Atlantic swordfish to NMFS by 
calling a number designated by NMFS within 24 hours of the landing. For 
telephone reports, the owner, or the owners designee, must provide a 
contact phone number so that a NMFS designee can call the vessel owner, 
or the owner's designee, for follow up questions and to confirm the 
reported landing. The telephone landing report has not been completed 
unless the vessel owner, or the owner's designee, has received a 
confirmation number from a NMFS designee.
* * * * *
    (d) Tournament operators. For all tournaments that are conducted 
from a port in an Atlantic coastal state, including the U.S. Virgin 
Islands and Puerto Rico, a tournament operator must register with the 
NMFS' HMS Management Division, at least 4 weeks prior to commencement 
of the tournament by submitting information on the purpose, dates, and 
location of the tournament to NMFS. A tournament is not registered 
unless the tournament operator has received a confirmation number from 
the NMFS' HMS Management Division. NMFS will notify the tournament 
operator in writing when a 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.
* * * * *

0
11. In Sec.  635.6, paragraphs (c)(1) and (c)(2) are revised to read as 
follows:


Sec.  635.6  Vessel and gear identification.

* * * * *
    (c) * * *
    (1) The owner or operator of a vessel for which a permit has been 
issued under Sec.  635.4 and that uses handline, buoy gear, harpoon, 
longline, or gillnet, must display the vessel's name, registration 
number or Atlantic Tunas, HMS Angling, or HMS Charter/Headboat permit 
number on each float attached to a handline, buoy gear, or harpoon, and 
on the terminal floats and high-flyers (if applicable) on a longline or 
gillnet used by the vessel. The vessel's name or number must be at 
least 1 inch (2.5 cm) in height in block letters or arabic numerals in 
a color that contrasts with the background color of the float or high-
flyer.
    (2) An unmarked handline, buoy gear, harpoon, longline, or gillnet, 
is illegal and may be disposed of in an appropriate manner by NMFS or 
an authorized officer.
* * * * *

0
12. Add Sec.  635.8 under subpart A to read as follows:


Sec.  635.8  Workshops.

    (a) Protected species release, disentanglement, and identification 
workshops. (1) Both the owner and operator of a vessel that fishes with 
longline or gillnet gear must be certified by NMFS, or its designee, as 
having completed a workshop on the safe handling, release, and 
identification of protected species before a shark or swordfish limited 
access vessel permit, pursuant to Sec.  635.4(e) and (f), is renewed in 
2007. For the purposes of this section, it is a rebuttable presumption 
that a vessel fishes 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, or its designee, will issue a protected species safe 
handling, release, and identification workshop certificate to any 
person who completes a protected species safe handling, release, and 
identification workshop. If an owner owns multiple vessels, NMFS will 
issue a certificate for each vessel that the owner owns upon successful 
completion of one workshop. An owner who is also an operator will be 
issued multiple certificates, one as the owner of the vessel and one as 
the operator.
    (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 
possess on board the vessel a valid protected species safe handling, 
release, and identification workshop certificate issued to that vessel 
owner. A copy of a valid protected species safe handling, release, and 
identification 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 a shark or swordfish limited 
access permit.
    (4) An operator that fishes with longline or gillnet gear as 
specified in paragraph (a)(1) of this section must

[[Page 58167]]

possess on board the vessel a valid protected species safe handling, 
release, and identification workshop certificate issued to that 
operator, in addition to a certificate issued to the vessel owner.
    (5) All owners and operators that attended and successfully 
completed industry certification workshops, held on April 8, 2005, in 
Orlando, FL, and on June 27, 2005, in New Orleans, LA, as documented by 
workshop facilitators, will automatically receive valid protected 
species safe handling, release, and identification workshop 
certificates issued by NMFS no later than December 31, 2006.
    (b) Atlantic shark identification workshops. (1) As of December 31, 
2007, all Federal Atlantic shark dealers permitted or required to be 
permitted pursuant to Sec.  635.4(g)(2), or a proxy for each place of 
business as specified in paragraph (b)(4) of this section, must be 
certified by NMFS, or its designee, as having completed an Atlantic 
shark identification workshop.
    (2) NMFS, or its designee, will issue an Atlantic shark 
identification workshop certificate to any person who completes an 
Atlantic shark identification workshop.
    (3) Dealers who own multiple businesses and who attend and 
successfully complete the workshop will be issued a certificate for 
each place of business that is permitted to receive sharks pursuant to 
Sec.  635.4(g)(2).
    (4) Dealers may send a proxy to the Atlantic shark identification 
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, and/
or first receipt of fish as they are offloaded from a vessel; and fills 
out dealer reports as required under Sec.  635.5. Only one certificate 
will be issued to each proxy. If a proxy is no longer employed by 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. At least one individual from each place of business covered by 
the shark dealer permit must possess a valid Atlantic shark 
identification workshop certificate.
    (5) A Federal Atlantic shark dealer issued or required to be issued 
a shark dealer permit pursuant to Sec.  635.4(g)(2) must possess and 
make available for inspection a valid Atlantic shark identification 
workshop certificate at each place of business. 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. 
If multiple businesses are authorized to receive sharks under the 
dealer's permit, a copy of the workshop certificate for each business 
must be included in the shark dealer permit renewal application 
package.
    (c) Terms and conditions. (1) Certificates, as described in 
paragraphs (a) and (b) of this section, are valid for three calendar 
years. All certificates must be renewed prior to the expiration date on 
the certificate.
    (2) If a vessel fishes with longline or gillnet gear as described 
in paragraph (a) of this section, the vessel owner may not renew a 
shark or swordfish limited access permit, issued pursuant to Sec.  
635.4(e) or (f), without submitting a valid protected species workshop 
certificate with the permit renewal application.
    (3) A vessel that fishes with longline or gillnet gear as described 
in paragraph (a) of this section and that has been, or should be, 
issued a valid limited access permit pursuant to Sec.  635.4(e) or (f), 
may not fish unless a valid protected species safe handling, release, 
and identification workshop certificate has been issued to both the 
owner and operator of that vessel.
    (4) An Atlantic shark dealer may not receive, purchase, trade, or 
barter for Atlantic shark unless a valid Atlantic shark identification 
workshop certificate is on the premises of each business listed under 
the shark dealer permit. An Atlantic shark dealer may not renew a 
Federal dealer permit issued pursuant to Sec.  635.4(g)(2) unless a 
valid Atlantic shark identification workshop certificate has been 
submitted with permit renewal application. If the dealer is not 
certified, the dealer must submit a copy of a proxy certificate for 
each place of business listed on the shark dealer permit.
    (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 may not transfer 
that certificate to another person.
    (6) Vessel owners issued a valid protected species safe handling, 
release, and identification workshop certificate may request, in the 
application for permit transfer per Sec.  635.4(l)(2), additional 
protected species safe handling, release, and identification workshop 
certificates for additional vessels that they own. Shark dealers may 
request from NMFS additional Atlantic shark identification workshop 
certificates for additional places of business authorized to receive 
sharks that they own as long as they, and not a proxy, were issued the 
certificate. All certificates must be renewed prior to the date of 
expiration on the certificate.
    (7) To receive either the protected species safe handling, release, 
and identification workshop certificate or Atlantic shark 
identification workshop certificate, persons required to attend the 
workshop must show a copy of their HMS permit, as well as proof of 
identification to NMFS or NMFS' designee at the workshop. If a permit 
holder is a corporation, partnership, association, or any other entity, 
the individual attending on behalf of the permit holder must show proof 
that he or she is the permit holder's agent and a copy of the HMS 
permit to NMFS or NMFS' designee at the workshop. For proxies attending 
on behalf of a shark dealer, the proxy must have documentation from the 
shark dealer acknowledging that the proxy is attending the workshop on 
behalf of the Atlantic shark dealer and must show a copy of the 
Atlantic shark dealer permit to NMFS or NMFS' designee at the workshop.

0
13. In Sec.  635.20, paragraph (d)(4) is added to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (d) * * *
    (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 (297.2 and 350.5 cm) and 
70 and 79 inches (177.8 and 200.7 cm), respectively, to achieve, but 
not exceed, the annual Atlantic marlin landing limit specified in Sec.  
635.27(d). Minimum size limit increases will be based upon a review of 
landings, the period of time remaining in 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 14 
calendar 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.
* * * * *

0
14. 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),

[[Page 58168]]

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, as specified 
below under paragraph (a)(4)(iv) of this section.
    (iv) For the purposes of paragraph (a)(4)(iii) of this section, 
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 with gears other than the primary gears specifically 
authorized in this part. Consistent with paragraphs (a)(1) and (a)(2) 
of this section, secondary gears may be used at boat side 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, secondary gears include, but are not limited to, dart 
harpoons, gaffs, flying gaffs, tail ropes, etc. Secondary gears may not 
be used to capture, or attempt to capture, free-swimming or undersized 
HMS. Except as specified in this paragraph (b), a vessel using or 
having onboard in the Atlantic Ocean any unauthorized gear may not 
possess 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 bottom longline gear onboard, the vessel may not, at 
any time, 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 total 
weight of pelagic and demersal species possessed or landed, that are 
listed in Tables 2 and 3 of Appendix A to this part.
    (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 pelagic longline gear onboard, the vessel may not, at 
any time, 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 total 
weight of pelagic and demersal species possessed or landed, that are 
listed in Tables 2 and 3 of Appendix A to this part.
    (e) * * *
    (1) Atlantic tunas. A person that fishes for, retains, or possesses 
an Atlantic bluefin tuna may not have on board a vessel or use on board 
a vessel 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 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. Speargun (for BAYS tunas only), and rod and reel 
(including downriggers)and handline (for all tunas).
    (ii) Charter/Headboat. Speargun (for recreational BAYS tuna fishery 
only), and rod and reel (including downriggers), bandit gear, and 
handline (for all tunas).
    (iii) General. Rod and reel (including downriggers), handline, 
harpoon, and bandit gear.
* * * * *
    (2) * * *
    (i) Only persons who have been issued a valid HMS Angling or valid 
Charter/Headboat permit, or who have been issued a valid 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.
    (ii) Only persons who have been issued a valid HMS Angling or valid 
Charter/Headboat permit, or who have been issued a valid 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) After December 31, 2006, 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, that 
bestows points, prizes, or awards 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 
valid directed handgear LAP for Atlantic swordfish may not fish for 
swordfish with any gear other than handgear. 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. Vessels 
that have been issued or that are required to have been issued a valid 
directed or handgear swordfish LAP under this part and that are 
utilizing buoy gear may not possess or deploy more than 35 floatation 
devices, and may not deploy more than 35 individual buoys gears per 
vessel. Buoy gear must be constructed and deployed so that the hooks 
and/or gangions are attached to the vertical portion of the mainline. 
Floatation devices may be attached to one but not both ends of the 
mainline, and no hooks

[[Page 58169]]

or gangions may be attached to any floatation device or horizontal 
portion of the mainline. If more than one floatation device is attached 
to a buoy gear, no hook or gangion may be attached to the mainline 
between them. Individual buoy gears may not be linked, clipped, or 
connected together in any way. Buoy gears must be released and 
retrieved by hand. All deployed buoy gear must have some type of 
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 
floatation devices. If a gear monitoring device is positively buoyant 
and rigged to be attached to a fishing gear, it is included in the 35 
floatation device vessel limit and must be marked appropriately.
* * * * *
    (f) Speargun fishing gear. Speargun fishing gear may only be 
utilized when recreational fishing for Atlantic BAYS tunas and only 
from vessels issued either a valid HMS Angling or valid HMS Charter/
Headboat permit. Persons fishing for Atlantic BAYS tunas using speargun 
gear, as specified in paragraph (e)(1) of this section, must be 
physically in the water when the speargun is fired or discharged, and 
may freedive, use SCUBA, or other underwater breathing devices. Only 
free-swimming BAYS tunas, not those restricted by fishing lines or 
other means, may be taken by speargun fishing gear. ``Powerheads'', as 
defined at Sec.  600.10 of this chapter, or any other explosive 
devices, may not be used to harvest or fish for BAYS tunas with 
speargun fishing gear.

0
15. 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.
    (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). 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 persons aboard a vessel that 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/Headboat permit issued under Sec.  635.4 and is engaged 
in a for-hire fishing trip.
* * * * *

0
16. 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.  635.27(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 of 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.  635.27 (a)(8). The retention limits may be adjusted 
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) Pelagic longline vessels fishing in the Northeast Distant gear 
restricted area, under the exemption specified at Sec.  
635.21(c)(2)(v), may retain all BFT taken incidental to fishing for 
other species while in that area 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.
* * * * *

0
17. 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) A person who owns or operates 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) A person who owns or operates 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) A person who owns or operates 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. * * *

0
18. In Sec.  635.27, paragraphs (a) introductory text, (a)(1) 
introductory text, (a)(1)(i), (a)(1)(iii), (a)(2), (a)(2)(i), 
(a)(2)(ii), (a)(2)(iii), (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),

[[Page 58170]]

(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 including 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) of 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. 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);
    (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. In accordance with the 
framework procedures of the HMS FMP, prior to each fishing year or as 
early as feasible, NMFS will establish 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. In addition, 
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 under paragraph 
(a)(7)(ii) of this section. The size class subquotas for BFT are 
further subdivided as follows:
    (i) Under paragraph (a)(7)(ii) of this section, 52.8 percent (51.3 
mt) of the school BFT Angling category landings quota, after adjustment 
for the school BFT quota held in reserve, may be caught, retained, 
possessed, or landed south of 39[deg]18' N. lat. The remaining quota 
(45.9 mt) may be caught, retained, possessed or landed north of 
39[deg]18' N. lat.
    (ii) An amount equal to 52.8 percent (86.0 mt) of the large school/
small medium BFT Angling category quota may be caught, retained, 
possessed, or landed south of 39[deg]18' N. lat. The remaining quota 
(76.8 mt) may be caught, retained, possessed or landed north of 
39[deg]18' N. lat.
    (iii) An amount equal to 66.7 percent (4.4 mt) of the large medium 
and giant BFT Angling category quota may be caught, retained, 
possessed, or landed south of 39[deg]18' N. lat. The remaining quota 
(2.2 mt) may be caught, retained, possessed or landed north of 
39[deg]18' N. lat.
    (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 that possess Longline category Atlantic Tunas permits 
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 that possess Purse 
Seine category Atlantic Tunas permits 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

[[Page 58171]]

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 affected 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 that possess Harpoon category Atlantic Tunas permits 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 that 
possess Trap category Atlantic Tunas permits 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 (22.0 mt) of the total school BFT quota for the Angling 
category as described under paragraph (a)(2) of this section. This 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 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 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 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 unharvested quota amounts 
being carried forward, as described in this paragraph, 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 under heading D of Table 1 of Appendix A to 
this part, may be

[[Page 58172]]

retained except as authorized under Sec.  635.32.
* * * * *
    (c) * * *
    (1) * * *
    (i) * * *
    (A) A swordfish from the North Atlantic stock caught prior to the 
directed fishery closure by a vessel that possesses a directed or 
handgear swordfish limited access permit will be counted against the 
directed fishery quota. The annual fishery quota, not adjusted for 
over- or underharvests, is 2,937.6 mt dw for each fishing year 
beginning June 1, 2004. The annual quota is subdivided into two equal 
semiannual quotas of 1,468.8 mt dw: one for June 1 through November 30, 
and the other for December 1 through May 31 of the following year. 
After December 31, 2007, 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 that possess a directed 
fishery permit for swordfish. No person may retain swordfish caught 
incidental to other fishing activities or with other fishing gear 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. 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 will 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 will 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 landings 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, unless adjusted under paragraph (d)(2) of this section or 
by ICCAT recommendation, this annual landings limit is 250 Atlantic 
blue and white marlin, combined. Should the U.S. recreational Atlantic 
marlin landing limit be adjusted by an ICCAT recommendation, NMFS will 
file a notice identifying the new landing limit with the Office of the 
Federal Register for publication prior to the start of the next fishing 
year or as early as possible.
    (2) Consistent with ICCAT recommendations and domestic management 
objectives, and based on landings statistics and other information as 
appropriate, if NMFS determines that aggregate landings of Atlantic 
blue and white marlin exceeded the annual landings limit for a given 
fishing year, as established in paragraph (d)(1) of this section, NMFS 
will subtract any overharvest from the landings limit for the following 
fishing year. Additionally, if NMFS determines that aggregate landings 
of Atlantic blue and white marlin were below the annual landings limit 
for a given fishing year, as established in paragraph (d)(1) of this 
section, NMFS may add any underharvest, or portion thereof, to the 
landings limit for the following fishing year. Such adjustments to the 
annual recreational marlin landings limit, as specified in paragraph 
(d)(1) of this section, if necessary, will be filed with the Office of 
the Federal Register for publication prior to the start of the next 
fishing year or as early as possible.
    (3) When the annual marlin landings limit specified in paragraph 
(d)(1) or, if adjusted, as specified in paragraph (d)(2) of this 
section is reached or projected to be reached, based upon a review of 
landings, the period of time remaining in the current fishing year, 
current and historical landings trends, and any other relevant factors, 
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 14 calendar 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.

0
19. 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 notice 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 notice, 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 notice.
* * * * *
    (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 the fishery at a later date if NMFS 
determines that reasonable fishing opportunities are

[[Page 58173]]

available, e.g., BFT have migrated into the area or weather is 
conducive for fishing. 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).
* * * * *

0
20. In Sec.  635.30, paragraph (c)(2) is revised to read as follows:


Sec.  635.30  Possession at sea and landing.

* * * * *
    (c) * * *
    (2) A person who owns or operates a vessel that has a valid 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. Wet shark fins may not exceed 5 
percent of the dressed weight of the carcasses on board a vessel or 
landed, in accordance with the regulations at part 600, subpart N, of 
this chapter.
* * * * *

0
21. In Sec.  635.31, paragraph (a)(1) is revised to read as follows:


Sec.  635.31  Restrictions on sale and purchase.

    (a) * * *
    (1) A persons that owns or operates 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 valid General, 
Harpoon, Longline, Purse Seine, or Trap category permit for Atlantic 
tunas issued under this part. However, no person may sell a BFT smaller 
than the large medium size class. 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, may be sold (see Sec.  635.23(c)). A persons may sell Atlantic 
tunas only to a dealer that has a valid permit for purchasing Atlantic 
tunas issued under this part. A person may not sell or purchase 
Atlantic tunas harvested with speargun fishing gear.
* * * * *

0
22. 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 Highly 
Migratory Species Fishery Management Plan, NMFS may establish or modify 
for species or species groups of Atlantic HMS the following management 
measures: maximum sustainable yield or optimum yield 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, but is not limited 
to, the following criteria: any Endangered Species Act related issues, 
concerns, or requirements, including applicable BiOps; 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, bycatch, 
and fishing effort data; evidence or research indicating that changes 
to fishing gear and/or fishing practices can significantly reduce 
bycatch; 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 U.S.'s catch on that 
species before implementing time/area closures.

0
23. In Sec.  635.71, paragraphs (a)(7), (a)(8), (a)(19), (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)(10), (e)(11), (e)(12), and (e)(15) are 
revised; and paragraphs (a)(48) through (a)(53), (b)(30) through 
(b)(35), (c)(7), (c)(8), (d)(14), (e)(16), and (e)(17) 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).
* * * * *
    (19) Utilize secondary gears as specified in Sec.  635.21(b) to 
capture, or attempt to capture, any undersized or free swimming 
Atlantic HMS, or fail to release a captured Atlantic HMS in the manner 
specified in Sec.  635.21(a).
* * * * *
    (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) Fish without being certified for completion of a NMFS 
protected species

[[Page 58174]]

safe handling, release, and identification workshop, as required in 
Sec.  635.8.
    (51) Fish without having a valid protected species workshop 
certificates issued to the vessel owner and operator on board the 
vessel as required in Sec.  635.8.
    (52) Falsify a NMFS protected species workshop certificate or a 
NMFS Atlantic shark identification workshop certificate as specified at 
Sec.  635.8.
    (53) Fish for, catch, possess, retain, or land an Atlantic 
swordfish using, or captured on, ``buoy gear'', as defined at Sec.  
635.2, unless the vessel owner has been issued a swordfish directed 
limited access 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) Fish for any HMS, other than Atlantic BAYS tunas, with 
speargun fishing gear, as specified at Sec.  635.21(f).
    (31) Harvest or fish for BAYS tunas using speargun gear with 
powerheads, or any other explosive devices, as specified in Sec.  
635.21(f).
    (32) Sell, purchase, barter for, or trade for an Atlantic BAYS tuna 
harvested with speargun fishing gear, as specified at Sec.  
635.31(a)(1).
    (33) Fire or discharge speargun gear without being physically in 
the water, as specified at Sec.  635.21(f).
    (34) Use speargun gear to harvest a BAYS tuna restricted by fishing 
lines or other means, as specified at Sec.  635.21(f).
    (35) Use speargun gear to fish for BAYS tunas from a vessel that 
does not possess either a valid HMS Angling or HMS Charter/Headboat 
permit, as specified at 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, or including, 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 has been restricted to catch and release 
fishing only, as specified in Sec.  635.27(d).
    (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, or barter for Atlantic sharks 
without a valid Atlantic shark identification workshop certificate or 
fail to be certified for completion of a NMFS Atlantic shark 
identification workshop in violation of Sec.  635.8.
* * * * *
    (14) Receive, purchase, trade, or barter for Atlantic shark without 
making available for inspection, at each of the dealer's places of 
business authorized to receive shark, a valid Atlantic shark 
identification workshop certificate issued by NMFS in violation of 
Sec.  635.8(b).
    (e) * * *
    (10) Fish for, catch, possess, retain, or land an Atlantic 
swordfish using, or captured on, ``buoy gear'' as defined at Sec.  
635.2, unless the vessel owner has been issued a swordfish directed 
limited access permit or a swordfish handgear limited access permit in 
accordance with Sec.  635.4(f).
    (11) As the owner of a vessel permitted, or required to be 
permitted, in the swordfish directed or swordfish handgear limited 
access permit category and utilizing buoy gear, to possess or deploy 
more than 35 individual floatation devices, to deploy more than 35 
individual buoy gears per vessel, or to deploy buoy gear without 
affixed monitoring equipment, as specified at Sec.  635.21(e)(4)(iii).
    (12) Fail to mark each buoy gear as required at Sec.  635.6(c)(1).
* * * * *
    (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).
    (16) Possess any HMS, other than Atlantic swordfish, harvested with 
buoy gear Sec.  635.21(e).
    (17) Fail to construct, deploy, or retrieve buoy gear as specified 
at Sec.  635.21(e)(4)(iii).

0
24. In Appendix A to part 635, revise Table 2 and add Table 3 to read 
as follows:

Appendix A to Part 635--Species Tables

* * * * *

           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
Blueline tilefish, Caulolatilus microps
Bonnethead shark, Sphyrna tiburo
Bull shark, Carcharhinus leucas
Cubera snapper, Lutjanus cyanopterus
Dog snapper, Lutjanus jocu
Finetooth shark, Carcharhinus isodon
Gag grouper, Mycteroperca microlepis
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
Sand tilefish, Malacanthus plumieri
Sandbar shark, Carcharhinus plumbeus
Schoolmaster snapper, Lutjanus apodus
Silk snapper, Lutjanus vivanus
Snowy grouper, Epinephelus niveatus
Speckled hind, Epinephelus drummondhayi
Spinner shark, Carcharhinus brevipinna
Tiger shark, Galeocerdo cuvieri
Tilefish, Lopholatilus chamaeleonticeps
Vermilion snapper, Rhomboplites aurorubens
Warsaw grouper, Epinephelus nigritus
Yellowedge grouper, Epinephelus flavolimbatus
Yellowfin grouper, Mycteroperca venenosa
Yellowtail snapper, Ocyurus chrysurus
 

[FR Doc. 06-8304 Filed 9-29-06; 8:45 am]
BILLING CODE 3510-22-S