[Federal Register Volume 72, Number 91 (Friday, May 11, 2007)]
[Rules and Regulations]
[Pages 26735-26741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9097]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 070307055-7099-02; I.D. 022607F]
RIN 0648-AV25


Atlantic Highly Migratory Species (HMS); U.S. Atlantic Billfish 
Tournament Management Measures

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

ACTION: Final rule.

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SUMMARY: This final rule suspends mandatory circle hook requirements 
for participants in Atlantic billfish fishing tournaments through 
December 31, 2007. Circle hook requirements will be reinstated 
unchanged effective 12:01 a.m., January 1, 2008. The suspension is 
intended to increase post-release survival rates of Atlantic billfish 
in the long-term by providing an additional phase-in period during 
which Atlantic billfish tournament anglers can become more proficient 
and familiar with circle hooks and their ecological benefits, 
respectively.

DATES: In this final rule, Sec.  635.21, paragraph (e)(2)(iii), is 
suspended from May 11, 2007 to December 31, 2007, and is revised 
effective January 1, 2008.

ADDRESSES: Copies of the Final Environmental Assessment/Regulatory 
Impact Review/Final Regulatory Flexibility Analysis (Final EA/RIR/FRFA) 
are available from the Highly Migratory Species Management Division 
website at www.nmfs.noaa.gov/sfa/hms or can be obtained by contacting 
Russell Dunn or Randy Blankinship (see FOR FURTHER INFORMATION 
CONTACT).

FOR FURTHER INFORMATION CONTACT: Russell Dunn or Randy Blankinship, by 
phone: 727-824-5399; by fax: 727-824-5398.

SUPPLEMENTARY INFORMATION: The U.S. recreational fishery for Atlantic 
billfish is managed under the Consolidated Highly Migratory Species 
(HMS) Fishery Management Plan (FMP). Implementing regulations at 50 CFR 
part 635 are issued under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 
et seq.), and the Atlantic Tunas Convention Act (ATCA) (16 U.S.C. 971 
et seq).

Background

    NMFS recently finalized a Consolidated HMS FMP (October 2, 2006; 71 
FR 58058) that consolidated and replaced previous FMPs for Atlantic 
Billfish and Atlantic Tunas, Swordfish, and Sharks. The Consolidated 
HMS FMP is implemented by regulations at 50 CFR part 635.
    Prior to January 1, 2007, the recreational Atlantic billfish 
fishery was subject to regulations that required fishing permits, 
limited allowable gears to rod and reel only, established minimum legal 
size limits, specified landing form of retained billfish, mandated 
reporting of billfish landings, required registration of all 
recreational HMS fishing tournaments and reporting by tournaments that 
are selected for reporting, prohibited the retention of longbill 
spearfish, and prohibited sale of any billfish, among other measures. 
The final rule implementing the Consolidated HMS FMP implemented 
additional regulations that applied to the Atlantic recreational 
billfish fishery.
    Effective January 1, 2007, these regulations require anglers 
fishing from HMS permitted vessels and participating in Atlantic 
billfish tournaments to use only non-offset circle hooks when deploying 
natural baits or natural bait/artificial lure combinations. The 
regulations allow the use of J-hooks (the hook-type traditionally used 
in this fishery) with artificial lures in tournaments, and do not 
impose hook requirements on recreational fishermen fishing outside of 
Atlantic billfish tournaments. Additionally, the final rule limits U.S. 
landings of Atlantic blue and white marlin to 250 individual fish, 
combined, on an annual basis.
    In response to continuing public input on the Atlantic billfish 
tournament circle hook regulations, NMFS released a draft environmental 
assessment and published a proposed rule on March 15, 2007 (72 FR 
12154), that included a preferred alternative to suspend Atlantic 
billfish tournament circle hook requirements through December 31, 2007. 
The EA considered three alternatives. Information regarding these 
alternatives was provided in the proposed rule and is not repeated 
here.

Response to Comments

    The public comment period for the proposed rule was open from March 
15, 2007 to March 30, 2007. During that time, NMFS held three public 
hearings and received comments from 111 individuals or organizations. A 
summary of the major comments received, along with NMFS' responses are 
provided below.

[[Page 26736]]

    Comment 1: Several commenters in favor of Alternative 1, the no 
action alternative (status quo), stated that the existing measure is 
necessary to protect Atlantic white marlin stocks and promote 
rebuilding. Similarly other commenters felt that maintaining the circle 
hook requirement would be beneficial in reducing the likelihood of 
listing white marlin as endangered or threatened under the Endangered 
Species Act.
    Response: NMFS agrees that maintaining the circle hook requirement 
would continue to provide post-release hooking mortality benefits; 
however, given the short duration of the circle hook suspension, NMFS 
projects that it will result in a one-time limited number of additional 
white marlin post-release mortalities that would not adversely affect 
the Atlantic wide stock in a measurable way. NMFS believes that the 
provision of an additional phase-in period during which anglers can 
become more proficient, comfortable, and accepting of circle hooks 
will, in the long-term, offset the short-term increase in mortalities 
by resulting in greater long-term compliance with circle hook 
regulations. The white marlin listing review, conducted under the 
Endangered Species Act, is currently underway. The biological review 
team conducting the review may consider the impacts of all fishery 
management measures in effect including circle hook requirements when 
making its recommendations. NMFS cannot predict the outcome of the 
review team's deliberations or the direct impact that any particular 
regulation may have on the outcome of such deliberations.
    Comment 2: NMFS received comment in support of Alternative 1, the 
no action alternative (status quo), because commenters felt there are 
many different ways of rigging baits with circle hooks that have been 
tested and proven to work.
    Response: NMFS received similar comment during and following 
development of the circle hook requirement from anglers stating that 
successful methods of rigging baits with circle hooks exist and are 
practiced. NMFS agrees that appropriate rigging techniques for circle 
hooks exist which allow anglers to successfully catch Atlantic 
billfish. Further, Prince et al. 2002, found no statistical difference 
between catch rates between circle hooks and J-hooks using both natural 
dead bait trolling and live bait drifting/kite fishing techniques. 
Additionally, several popular articles have been published in major 
sportfishing magazines that highlight some of these methods. However, 
NMFS believes that an improved long-term ecological benefit can be 
achieved by allowing an additional phase-in period for the reasons 
discussed in the response to Comment 1.
    Comment 3: The Maryland Department of Natural Resources (MDNR) 
expressed support for alternative 1, the no action alternative (status 
quo). MDNR cited its work with the recreational fishing community and 
the billfish tournament directors in Maryland to educate anglers 
regarding the conservation benefits of circle hook use and stated that 
the major billfish tournaments in Maryland anticipated the circle hook 
requirement and prepared for it. MDNR cited success with implementation 
of circle hook requirements in Maryland's special catch and release 
fishery for striped bass in the Chesapeake Bay and stated that 
suspending the circle hook requirement for Atlantic billfish 
tournaments would send the wrong message to recreational anglers.
    Response: NMFS appreciates the conservation efforts of the MDNR. 
The suspension of the circle hook requirement in Atlantic billfish 
tournaments is a temporary measure with the purpose of providing 
additional time for anglers to become more familiar with techniques for 
rigging and fishing with circle hooks in Atlantic billfish tournaments, 
thus resulting in improved long-term compliance with the circle hook 
requirement upon reimplementation. NMFS has worked to increase 
awareness among anglers of the benefits of circle hooks and will 
continue to do so during and following the temporary suspension.
    Comment 4: NMFS received comment in support of alternative 1, the 
no action alternative (status quo), because of the lack of time for 
tournament operators to get the word to all potential participants 
about what gear is allowed. Alternatively, NMFS received comment in 
support of the preferred alternative so that tournament rules would not 
have to be rewritten this year as some tournaments may have published 
their rules using 2006 regulations.
    Response: NMFS received comment from multiple tournament operators 
indicating that some tournaments prepared for the circle hook 
requirement when it was implemented on January 1, 2007, while others 
were unaware or did not prepare. NMFS appreciates the concerns of 
tournament operators and anglers regarding the need to know what gear 
configurations are available for use in advance. NMFS also appreciates 
those constituents that were aware of and prepared for the requirement 
and regrets that tournament rules may need to be reprinted as a result 
of the temporary suspension of the regulation. NMFS also points out 
that tournaments in some areas of the Atlantic and Gulf of Mexico have 
voluntarily implemented circle hook requirements in recent years and 
the temporary suspension of the requirement does not prevent this. NMFS 
encourages anglers and tournament operators to stay informed of HMS 
management issues and actions by visiting http://www.nmfs.noaa.gov/sfa/hms/ and signing up for the electronic bulletin, Atlantic HMS News.
    Comment 5: NMFS received comment in support of the preferred 
alternative, temporarily suspend the Atlantic billfish circle hook 
requirement, that expressed a desire for NMFS to use the suspension 
period to accomplish several tasks. These suggestions include: improve 
the circle hook definition; investigate the availability of circle 
hooks for the recreational billfishing tackle market; investigate the 
post-release hooking mortality rates of J-hook and circle hook rigged 
natural and natural bait/artificial lure combination baits trolled at 
high speed such as is used frequently when targeting blue marlin; 
investigate the possibility of a minimum size J-hook that could be 
allowed when high speed trolling for blue marlin; investigate post-
release mortality of billfish when lures with double hooks are used; 
investigate how the circle hook requirement affects tournaments with 
mixed target species; investigate whether the circle hook requirement 
would accomplish its intended objective or not; and investigate post-
release hooking mortality differences between different presentations 
of J-hooks with live baits.
    Response: NMFS agrees that information from studies such as some of 
those mentioned during public comment may be useful for refining 
management of the billfish fishery in the future as additional data 
become available. NMFS is working on a number of these issues including 
improving the definition of circle hooks and the potential for 
additional post-release mortality studies examining various gear and 
technique configurations.
    Comment 6: NMFS received comment in favor of the preferred 
alternative, temporarily suspend the Atlantic billfish circle hook 
requirement; however, commenters expressed a desire for modifications 
to the circle hook requirement upon re-implementation. Commenters 
indicated that these modifications are popular for use when targeting 
blue marlin and are

[[Page 26737]]

less damaging to all billfish than J-hooks used with live or dead 
natural baits on light tackle. Some commenters making this suggestion 
stated that some of these modifications would help reduce the impact to 
anglers fishing in mixed species tournaments. Some commenters stated 
that these modifications would allow the continuation of North 
Carolina's historic and traditional method of fishing for blue marlin 
using heavy tackle and/or lure/bait combinations rigged with J-hooks 
and trolled at high speed. Suggested modifications included creating an 
exemption to the circle hook requirement to allow J-hook use with heavy 
tackle and/or lure/bait combinations trolled at high speed and creating 
an exemption to the circle hook requirement to allow J-hook use if the 
main line is less than 50 lb. test, less than 80 lb. test, leader size 
is less then 200 lb. test, hook is at least a certain size that cannot 
be be swallowed easily by a billfish (hook size suggestions were 9/0, 
10/0, 11/0 and 12/0), or some combination of these criteria.
    Response: NMFS acknowledges that limited information from the few 
blue marlin tagged with pop-off satellite archival tags (PSATs) (9 
fish) in the study by Graves et al. (2001) shows relatively low rates 
of post-release mortality for blue marlin caught on J-hooks when 
certain gear configurations and techniques are employed. However, the 
sample size of this one study is limited and no information exists on 
the impacts of combination baits with J-hooks on white marlin and other 
billfish species. NMFS implemented the regulations requiring circle 
hooks on natural baits and natural bait/artificial lure combinations 
based on a number of considerations that are detailed in the Final 
Environmental Impact Statement (FEIS) for the Consolidated HMS FMP. The 
basis for that decision included, but was not limited to: the post-
release survival benefits of circle hooks for billfish and many other 
species identified in a number studies, comparable catch rates of 
billfish between circle hooks and J-hooks identified in available 
studies, the poor stock status of some Atlantic billfish species, the 
limited amount of available data on various gear configurations, and 
enforcement issues. NMFS will consider new information on the effects 
of the fishing methods mentioned above on fish condition and post-
release mortality as it becomes available. NMFS acknowledges that the 
circle hook requirement in Atlantic billfish tournaments may have 
impacts on secondary fisheries including wahoo, king mackerel, dolphin, 
tunas, and other fisheries and has limited these impacts to the extent 
feasible in the creation of the circle hook requirement by applying it 
narrowly to only HMS permitted vessels participating in tournaments 
with award categories for Atlantic billfish. NMFS will consider new 
information on ways to limit impacts of HMS requirements on non-HMS 
fisheries as it becomes available. NMFS acknowledges that a traditional 
recreational fishery exists for blue marlin in the Atlantic and Gulf of 
Mexico that utilizes different fishing techniques in different 
locations and situations. The fishing technique of using heavy tackle 
and/or lure/bait combinations rigged with J-hooks and trolled at high 
speed is used in several locations throughout the Atlantic and Gulf of 
Mexico. The fishery management strategy employed to reduce post-release 
hooking mortality of Atlantic billfish through the circle hook 
requirement in Atlantic billfish tournaments is a modification of the 
techniques used in this fishery. NMFS received public comment during 
and following development of the circle hook requirement from anglers 
that successful methods of rigging baits with circle hooks exist and 
are practiced. Additionally, several articles have been published in 
major sportfishing magazines that highlight some of these methods. NMFS 
believes that through this and other fishery management strategies, the 
traditional recreational fishery for blue marlin and other Atlantic 
billfish may be improved by promoting stock rebuilding.
    Comment 7: NMFS received comment from the North Carolina Division 
of Marine Fisheries (NCDMF) indicating their support for the preferred 
alternative, temporarily suspend the Atlantic billfish circle hook 
requirement. NCDMF stated that the current rule may negatively impact 
angler's ability to catch blue marlin. Concern was expressed over the 
impacts of mandating circle hook use for natural baits and natural 
bait/combinations for all tackle sizes. NCDMF encouraged NMFS to 
explore the circle hook definition, conduct research on release 
mortality of billfish released on heavy tackle with J-hooks, research 
the difference in catch rates of circle and J-hooks for non-billfish 
species targeted in tournaments, and explore recently raised questions 
concerning post-release mortality of billfish caught on double hooked 
lures. NCDMF expressed concern that a shortage of large non-offset 
circle hooks to supply the billfish fishery may exist.
    Response: NMFS appreciates the comments of the NCDMF. The purpose 
of the temporary suspension of the circle hook requirement in Atlantic 
billfish tournaments is to allow additional time for anglers to become 
more familiar with techniques for rigging and fishing with circle hooks 
in Atlantic billfish tournaments, thus resulting in improved long-term 
compliance with the requirement upon reimplementation. As discussed in 
the response to Comment 6, NMFS received comment during and following 
development of the circle hook requirement from anglers stating that 
successful methods of rigging baits with circle hooks exist and are 
practiced. Additionally, several articles have been published in major 
sportfishing magazines that highlight some of these methods.
    Regarding the application of the circle hook requirement for all 
tackle sizes, NMFS developed the requirement with consideration for 
several different concerns which included application to the targeted 
fishery and the ease of enforcement, as well as other considerations 
identified in the response to Comment 6 and discussed in detail in the 
FEIS for the Consolidated HMS FMP. NMFS believes that the requirements 
for the use of circle hooks by permitted HMS fishermen when natural 
bait and natural bait/artificial lures are deployed in billfish 
tournaments improve its enforceability. Related to application of the 
requirement to all tackle sizes and researching post-release mortality 
for various tackle types, NMFS will consider new information on the 
effects of the fishing methods on fish condition and post-release 
hooking mortality, as it becomes available. NMFS has not received 
information indicating that a shortage of large non-offset circle hooks 
exists other than that contained in NCDMF's comment. The circle hook 
requirement was finalized in October 2006 and became effective January 
1, 2007, providing time for circle hook manufacturers and retail stores 
to increase inventory. The Atlantic billfish tournament season is 
protracted and peaks in the late spring and summer months, thereby 
providing additional time for manufacturers and retailers to prepare 
for demand. The preferred alternative to temporarily suspend the circle 
hook requirement in Atlantic billfish tournaments may dampen the peak 
in demand for circle hooks in 2007 as anglers will not be required to 
use circle hooks, but may still desire to practice with them in 
preparation for re-implementation of the requirement on

[[Page 26738]]

January 1, 2008. However, as mentioned, NMFS has received no 
information from anglers, distributors, tackle shops, tournament 
operators, or manufacturers that a real or potential shortage of hooks 
exists.
    Comment 8: NMFS received comment in favor of non-preferred 
alternative 3, remove Atlantic billfish tournament circle hook 
requirements, for various reasons including: insufficient data to 
implement a circle hook requirement in billfish tournaments; voluntary 
use of circle hooks should continue to be encouraged; fear that similar 
requirements will be imposed in all offshore trolling for any species 
to reduce billfish post-release mortality; concerns that circle hooks 
lodging in the corner of the jaw actually are the most painful and 
cause long-term damage to the fish resulting in a decreased ability of 
the fish to feed and increased rates of death relative to billfish 
caught with J-hooks.
    Response: NMFS disagrees that there is insufficient data to 
implement a circle hook requirement in billfish tournaments. 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 clearly 
articulated in Chapter 4 of the Consolidated HMS FMP. NMFS agrees that 
voluntary circle hook use in HMS fisheries outside of Atlantic billfish 
tournaments should be encouraged. Voluntary use of circle hooks was 
promoted in the years prior to implementation of the circle hook 
regulation on January 1, 2007; however, this voluntary promotion only 
achieved limited success in transitioning recreational anglers to 
circle hooks in the Atlantic billfish fishery. NMFS does not anticipate 
that continued promotion of voluntary circle hook use alone by 
tournament anglers would result in achieving the maximum conservation 
benefit possible of reduced post-release mortality of Atlantic billfish 
relative to the no action alternative. NMFS acknowledges that requiring 
circle hooks in all HMS fisheries could have impacts on secondary 
fisheries, including tunas, sharks, dolphin, wahoo, king mackerel, 
etc., and other inshore fisheries and has taken steps to minimize these 
impacts, as discussed under the response to comment 6. NMFS disagrees 
that circle hooks lodging in the corner of the jaw are more damaging to 
fish in the long-term and result in fish death more frequently than 
with J-hooks. This comment is not supported by peer reviewed scientific 
literature showing lower post-release mortality of white marlin when 
caught with circle hooks in comparison with J-hooks and showing less 
damaging hook location in sailfish and blue marlin when caught with 
circle hooks in comparison with J-hooks.
    Comment 9: NMFS received comment from lure manufacturers stating 
that rigging circle hooks with hard headed artificial lures and natural 
baits is an ineffective method of catching billfish and has resulted in 
substantial loss of lure sales. One manufacturer stated that the 
combined economic impact from Central American circle hook requirements 
and the domestic circle hook requirement implemented in January 2007, 
the requirement was large enough to cause his company to go out of 
business. Similarly, another lure manufacturer stated that hard headed 
lures with nylon skirts are designed to be trolled at high speed in 
conjunction with natural baits and J-hooks resulting in almost all fish 
being hooked in the mouth. One manufacturer expressed support for 
alternative 3, removal of Atlantic billfish tournament circle hook 
requirements, and another requested that NMFS further investigate an 
exemption for artificial lure/natural bait combinations rigged with J-
hooks and trolled at high speed.
    Response: NMFS appreciates the comment that economic impacts may 
have occurred as a result of previous rulemaking to implement the 
circle hook requirement on January 1, 2007. As discussed in the 
response to Comment 6, NMFS received comment during and following 
development of the circle hook requirement from anglers stating that 
successful methods of rigging baits with circle hooks exist and are 
practiced. Additionally, several articles have been published in major 
sportfishing magazines that highlight some of these methods including 
methods to rig and fish with hard headed lures with nylon skirts used 
in combination with natural baits. NMFS acknowledges that investigating 
questions about certain gear and rigging types such as that mentioned 
above may provide additional useful information in the future and will 
consider these issues when identifying future research priorities.
    Comment 10: NMFS received comment that no data exists to support 
application of the circle hook requirement to blue marlin fishing 
methods that employ circle hook rigged baits trolled at high speed. 
These comments stated that the damage to billfish when J-hooks are used 
in baits trolled at high speed is less than when J-hooks are used with 
dead or live natural baits on light tackle. These comments also stated 
that no data exists to support the concept of the circle hook 
requirement that large baits, lures, or artificial/natural combination 
baits rigged with circle hooks and trolled at high speed result in an 
adequate hook-up rate.
    Response: As discussed in the response to Comment 6, NMFS developed 
the circle hook requirement in Atlantic billfish tournaments with 
consideration for several different concerns, including but not limited 
to: the post-release survival benefits of circle hooks for multiple 
billfish species and other species identified in a several studies, 
comparable catch rates of various billfishes between circle hooks and 
J-hooks as identified in available studies, the poor stock status of 
some Atlantic billfish species, and enforcement issues. Accordingly, 
the rule applies to natural and natural/artificial combination baits. 
NMFS acknowledges that limited information from the few blue marlin 
tagged with PSATs (9 fish) in the study by Graves et al. (2001) shows 
relatively low rates of post-release mortality for blue marlin caught 
on J-hooks when certain gear configurations and techniques are 
employed. No information exists, however, on the impacts of this 
fishing technique on white marlin and other billfish species. With this 
uncertainty of impacts in particular to white marlin, the regulation 
was developed in a manner to provide additional protection to severely 
overfished Atlantic billfishes. NMFS will consider new information on 
the effects of the fishing methods mentioned above on fish condition 
and post-release hooking mortality, as it becomes available. As 
discussed in the response to Comment 6, NMFS received comment during 
and following development of the circle hook requirement from anglers 
that successful methods of rigging baits with circle hooks exist and 
are practiced. Additionally, several articles have been published in 
major sportfishing magazines that highlight some of these methods 
including methods to rig and fish with hard headed lures with nylon 
skirts used in combination with natural baits.
    Comment 11: NMFS received comment suggesting that fees be assessed 
on all HMS recreational permits and HMS registered tournaments to fund 
PSAT tagging for post- release mortality comparisons between circle 
hooks and J-hooks.
    Response: NMFS appreciates the suggestion as funding for continued 
post-release mortality studies in Atlantic billfish fisheries is 
needed. Suggestions for research funding will be

[[Page 26739]]

considered as future research needs are assessed.
    Comment 12: NMFS received comment that the existing circle hook 
requirement is not compatible with mixed species tournaments and will 
reduce the ability of anglers to catch wahoo, dolphin, tuna, and 
others.
    Response: NMFS understands that the circle hook requirement in 
Atlantic billfish tournaments will affect anglers in HMS permitted 
vessels targeting species other than Atlantic billfish. Many pelagic 
fish species are found in the same areas as Atlantic billfish and feed 
on similar prey. Atlantic billfish may be caught in many areas using 
the same fishing methods employed for other pelagic species such as 
wahoo, dolphin, tuna, king mackerel, and others; therefore, circle 
hooks are necessary in that portion of the tournament fishery. NMFS 
sought to minimize the impacts on secondary species by limiting the 
applicability of circle hook regulations as discussed in the response 
to Comment 6.
    Comment 13: NMFS received comment that the existing circle hook 
requirement is not enforceable and relies on tournament operators as 
the only enforcement agent. NMFS also received public comment that the 
circle hook requirement would be enforceable.
    Response: The requirements for the use of circle hooks by permitted 
HMS fishermen when natural bait and natural bait/artificial lures are 
deployed in billfish tournaments can be adequately enforced by NOAA 
Enforcement and the United States Coast Guard. As most tournament's 
rules require anglers to comply with all applicable state and federal 
regulations, NMFS believes that an important incentive for anglers to 
comply with regulations is the potential to have a prize-winning fish 
disqualified for not deploying a circle hook when required.
    Comment 14: NMFS received comment that all fishing tournaments 
should be banned.
    Response: NMFS disagrees. Atlantic HMS tournaments represent an 
important component of a robust recreational fishery and provide 
substantial socio-economic benefits to many communities. Further, 
tournaments represent an essential mechanism for obtaining significant 
amounts of data on many species that are incorporated into fish 
population assessments and management decisions.
    Comment 15: NMFS received comment that tournaments are venues that 
could provide a large number of interactions with marlin and should be 
used to collect data to answer the post-release hooking mortality 
questions for blue and white marlin.
    Response: NMFS appreciates the interest in collecting post-release 
hooking mortality information and agrees that tournaments can provide, 
for some fishery management issues, a venue for collecting fisheries 
information via appropriately designed data collection protocols. Such 
situations have been and continue to be valuable for collecting 
billfish information such as through the Recreational Billfish Survey 
and other life history studies. Such activity is not affected by this 
rulemaking.
    Comment 16: NMFS received comment that the recreational fishing 
mortality level for billfish does not compare to the much larger 
pelagic longline mortality level thus the circle hook requirement in 
Atlantic billfish tournaments is directed at the wrong mortality 
source.
    Response: The United States is responsible for approximately 4.5 
percent of reported white marlin catches in the Atlantic. As explained 
in Appendix C of the 2006 Consolidated HMS FMP, average annual fishing 
mortality levels imposed by the domestic pelagic longline fishery and 
the recreational tournament fishery on Atlantic white marlin are 
roughly comparable. Based on pelagic longline logbook data and data 
from the Recreational Billfish Survey, the level of billfish mortality 
imposed by U.S. recreational billfish tournament fishermen is estimated 
to be approximately 71% of levels imposed by the U.S. pelagic longline 
fishery. While the post-release mortality rate of Atlantic white marlin 
is estimated to be lower in recreational fisheries than in the pelagic 
longline fishery, the size of the recreational tournament fishery is 
large enough to generally offset the difference in mortality rates.
    Comment 17: NMFS received several comments that the preferred 
alternative, suspend Atlantic billfish tournament circle hook 
requirements through the close of 2007, is not favorable. These 
include: the proposed rule is not precautionary; compliance with the 
already established rule would be 100 percent; the proposed rule is not 
supported by the record; there is a lack of parity with this proposed 
rule as an extended phase-in period is proposed for recreational 
anglers, but there was no grace period for commercial fishermen when 
circle hooks were required; the timing of proposed rule is bad as 
tournaments are in May and June and anglers should be practicing with 
circle hooks already.
    Response: NMFS appreciates the comment that temporary suspension of 
the circle hook rule is not precautionary and that compliance would be 
100 percent. NMFS disagrees that temporary suspension of the circle 
hook requirement is not supported by the record as the rule will be re-
implemented January 1, 2008. NMFS agrees that maintaining the circle 
hook requirement would continue to provide post-release hooking 
mortality benefits; however, given the short duration of the circle 
hook suspension, NMFS projects that it will result in a one-time 
limited number of additional white marlin post-release mortalities that 
would not affect the Atlantic wide stock in a measurable way. NMFS 
believes that the provision of an additional phase-in period during 
which anglers can become more proficient, comfortable, and accepting of 
circle hooks will, in the long-term, offset the short-term increase in 
mortalities by resulting in greater long-term compliance with circle 
hook regulations. NMFS disagrees that there is a lack of parity between 
implementation of the circle hook requirement in Atlantic billfish 
tournaments and the circle hook requirement for the pelagic longline 
(PLL) fishery because the bases for the two actions are different. The 
circle hook requirement in Atlantic billfish tournaments is a domestic 
measure intended to aid in rebuilding Atlantic billfish stocks by 
reducing post-release fishing mortality to the extent practicable at 
this time. The circle hook requirement in the Atlantic PLL fishery 
responds to issuance of the 2004 Biological Opinion which determined 
that continued operation of the pelagic longline fishery without 
changes in fishing gears or techniques would jeopardize the existence 
of leatherback sea turtles. Per the Endangered Species Act, the Agency 
was required to implement changes in the way the pelagic longline 
operated. Rapid implementation of the circle hook requirement for PLL 
was necessary for the fishery to continue operating. This rulemaking is 
intended to reduce post-release mortality of Atlantic billfish in the 
long-term by temporarily suspending the circle hook requirement in 
Atlantic billfish tournaments to allow tournaments and tournament 
anglers additional time to become more familiar with techniques for 
rigging and fishing with circle hooks.
    Comment 18: NMFS received comment that circle hook specifications 
should be defined and field tested. Commenters also stated that circle 
hook rigging workshops should be held or

[[Page 26740]]

videos should be developed. NMFS also received comment that 3 different 
circle hooks were used in recent research and all 3 worked well in 
reducing post-release mortality even with differences in their general 
design. Additionally, comment was received that it is important to stay 
consistent with what the international community is using as a 
definition of circle hooks because of tackle manufacturing and to 
reduce confusion.
    Response: NMFS appreciates the numerous comments received about 
circle hook definition issues and is involved in discussions with hook 
manufacturers and gear experts to address many of these concerns. 
Further, NMFS is not aware of an internationally accepted definition of 
circle hooks. The Agency may consider this issue in future rulemaking, 
as appropriate.

Changes from the Proposed Rule

    There are no changes from the proposed rule.

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 this final 
rule is consistent with the national standards of the Magnuson-Stevens 
Act, other provisions of the Act, and other applicable laws.
    Pursuant to 5 U.S.C. 553(d)(1), the Assistant Administrator finds 
that this final action relieves a restriction and therefore may be made 
effective upon its filing with the Office of the Federal Register. 
Specifically, the final action relieves a restriction for persons 
fishing from HMS permitted vessels in Atlantic billfish tournaments to 
fish only with non-offset circle hooks when using natural or natural/ 
artificial combination baits. Without this action, NMFS would continue 
to require anglers to use non-offset circle hooks when using natural or 
natural/artificial combination baits in Atlantic billfish tournaments 
and would not afford anglers an additional time to become more 
proficient with methods used to rig and fish with circle hooks and 
these baits. NMFS expects that this action will improve expertise and 
familiarity with methods for rigging and fishing with circle hooks in 
Atlantic billfish tournaments. As a result, NMFS expects improved long-
term compliance with the regulation to use circle hooks in billfish 
tournaments when it goes back into effect on January 1, 2008. This 
final rule has been determined to be not significant for purposes of 
Executive Order 12866.
    In compliance with 5 U.S.C. 604, a Final Regulatory Flexibility 
Analysis (FRFA) was prepared for this rule. The FRFA analyzes the 
anticipated impacts of the preferred alternative and any significant 
alternatives to the final rule that could minimize significant economic 
impacts on small entities. Each of the statutory requirements of 
section 604 has been addressed, and a summary of the FRFA is provided 
below.
    Section 604(a)(1) requires the Agency to state the objective and 
need for the rule. As stated in the preamble of the proposed rule, the 
objective of this final rule is to increase post-release survival of 
Atlantic billfishes by improving long-term compliance with billfish 
tournament non-offset circle hook regulations. Maximizing post-release 
survival of Atlantic billfishes is an important facet of rebuilding 
overfished Atlantic billfish stocks.
    Section 604(a)(2) requires the Agency to summarize significant 
issues raised by the public in response to the Initial Regulatory 
Flexibility Analysis (IRFA), a summary of the assessment of the agency 
of such issues, and a statement of any changes made in the rule as a 
result of such comments. NMFS received numerous comments on the 
proposed rule and draft EA during the public comment period. A summary 
of these comments and the Agency's responses is included in this final 
rule. NMFS did not receive any comments specific to the IRFA, but did 
receive one comment related to economic issues and concerns. 
Specifically, one fishing gear manufacturer stated that the combined 
impacts of a circle hook requirement imposed by a Central American 
country and the U.S. Atlantic billfish tournament circle hook 
requirement implemented domestically in January 2007 (cited previously) 
cost his company and others several hundred thousand dollars in lost 
revenues which was large enough to cause his company to go out of 
business. As such, this commenter supported a repeal of the circle hook 
regulations.
    NMFS appreciates that economic impacts may have occurred as a 
result of previous rulemaking to implement the circle hook requirement 
on January 1, 2007; however, as noted by the commenter, these impacts 
resulted from a combination of foreign regulations and a previous 
domestic rulemaking. This comment is responded to fully with other 
comments (see Comment 9). The preferred alternative in this final rule 
could have minor short-term positive impacts on the sales of fishing 
lures used in conjunction with natural baits by temporarily allowing 
anglers to utilize J-hooks. While the final rule has the effect of 
temporarily allowing anglers to utilize J-hooks, the circle hook 
suspension was not made as a result of this comment.
    Section 604(a)(3) of the Regulatory Flexibility Act requires the 
Agency to describe and provide an estimate of the number of small 
entities to which the rule will apply. NMFS considers all HMS permit 
holders to be small entities because they either had gross receipts 
less than $4.0 million for fish-harvesting, gross receipts less than 
$6.5 million for charter/party boats, or 100 or fewer employees for 
wholesale dealers. These are the Small Business Association size 
standards for defining a small versus large business entity in these 
industries. As of January 29, 2007, the potential universe of affected 
anglers included: 24,664 HMS Angling category permit holders; 4,140 HMS 
Charter/Headboat category permit holders, and 4,345 General category 
permit holders. All of the aforementioned permit holders are eligible 
to participate in registered Atlantic HMS tournaments.
    Section 604(a)(4) of the Regulatory Flexibility Act requires the 
Agency to describe the projected reporting, record keeping, and other 
compliance requirements of the final rule, including an estimate of the 
classes of small entities which would be subject to the requirements of 
the report or record. None of the alternatives considered for this 
final rule would result in additional reporting, recordkeeping, and 
compliance requirements.
    Section 604(a)(5) of the Regulatory Flexibility Act requires the 
Agency to describe the steps taken to minimize the significant economic 
impact on small entities consistent with the stated objectives of 
applicable statutes. NMFS believes that this final rule minimizes 
impacts on small entities by temporarily suspending circle hook 
requirements for HMS tournaments, to allow participants additional time 
to become proficient in the use of circle hooks and familiar with their 
ecological benefits. The alternative to permanently suspend the circle 
hook requirement would not achieve MSA rebuilding objectives for these 
fisheries.
    As described below, NMFS considered three alternatives in this 
final rulemaking and provides justification for selection of the 
preferred alternative to achieve the desired objective.
    The alternatives considered included: maintain existing non-offset 
circle hook requirements for anglers fishing from HMS permitted vessels 
and participating in Atlantic billfish tournaments (alternative 1, No 
Action); suspend non-offset circle hook

[[Page 26741]]

requirements for anglers fishing from HMS permitted vessels and 
participating in Atlantic billfish tournaments through December 31, 
2007 (alternative 2, preferred alternative); and, remove Atlantic 
billfish tournament circle hook requirements and promote voluntary use 
of circle hooks by tournament anglers (alternative 3).
    Alternative 1 is considered the no action alternative since it 
would maintain unchanged the Atlantic billfish circle hook regulations 
that were implemented on January 1, 2007. This alternative is not 
preferred because, in part, it is less likely to improve long-term 
compliance with circle hook regulations, and thus be less likely to 
maximize post-release survival of Atlantic billfish than the preferred 
alternative because it does not provide adequate time for anglers to 
familiarize themselves with circle hooks and increase angler's 
acceptance of them. Alternative 1, the No Action alternative, would 
have no new economic impacts beyond those that were included in 
previous rulemaking. Alternative 2 could result in a minor short-term 
increase in billfish tournament participation given the perceptions 
held by many anglers that J-hooks may increase the odds of landing a 
billfish. No additional costs for billfish tournament participants are 
likely because NMFS anticipates that anglers already possess J-hook 
related tackle, as this was the standard gear used in the fishery prior 
to January 1, 2007, and is still authorized for use outside of billfish 
tournaments.
    Alternative 3 was considered, but not fully analyzed in the 
Environmental Assessment because voluntary promotion of circle hook use 
in the years prior to implementation of the circle hook regulation on 
January 1, 2007, did not achieve a high percentage of recreational 
angler use of circle hooks in the Atlantic billfish fishery. As such, 
NMFS does not anticipate that continued promotion of voluntary circle 
hook use alone by tournament anglers would result in achieving the 
maximum conservation benefit possible of reduced post-release mortality 
of Atlantic billfish relative to the no action alternative. Alternative 
3 could result in minor short-term increases in angler consumer surplus 
and/or willingness to pay, as anglers may perceive that their short-
term catch rates of Atlantic billfish may increase with the use of J-
hooks. However, alternative 3 would not be expected to increase either 
consumer surplus or willingness to pay in the long-term as it would 
result in an increase in post-release hooking mortality and thus be 
less likely to contribute to rebuilding of Atlantic billfish 
populations. For the reasons discussed above, this alternative was not 
selected as the preferred alternative.
    Alternative 2 may result in minor increases in printing and 
distribution costs to tournament operators if tournament rules need to 
be reprinted and redistributed. Tournaments could avoid additional 
printing costs if they voluntarily chose to maintain an all circle hook 
tournament format, which some tournaments have notified NMFS that they 
will do. There may be a long-term increase in angler consumer surplus 
resulting from rebuilding efforts through either alternatives 1 or 2, 
and therefore resulting in a potential increase in demand for billfish 
tournament participation. However, these benefits may be realized 
sooner under alternative 2, should it lead to increased acceptance and 
use of circle hooks. As such, and based on the analysis included in the 
EA for this rulemaking, alternative 2 was selected the preferred 
alternative.

List of Subjects in 50 CFR Part 635

    Fish, Fisheries, Fishing, Fishing vessels, Management.

    Dated: May 8, 2007.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For reasons set out in the preamble, 50 CFR part 635 is amended as 
follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

0
2. In Sec.  635.21, paragraph (e)(2)(iii) is suspended from May 11, 
2007 to December 31, 2007, and is revised effective January 1, 2008, to 
read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (e) * * *
    (2) * * *
    (iii) After December 31, 2007, 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.
* * * * *
[FR Doc. E7-9097 Filed 5-10-07; 8:45 am]
BILLING CODE 3510-22-S