[Federal Register Volume 73, Number 88 (Tuesday, May 6, 2008)]
[Proposed Rules]
[Pages 24922-24936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9888]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 070801432-7435-01]
RIN 0648-AV92


Atlantic Highly Migratory Species; Atlantic Tuna Fisheries; Gear 
Authorization and Turtle Control Devices

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 24923]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments; notice of public hearings.

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SUMMARY: NMFS proposes to authorize green-stick gear for the harvest of 
Atlantic tunas, including bluefin tuna (BFT); authorize harpoon gear 
for the harvest of Atlantic tunas, including BFT, in the Highly 
Migratory Species (HMS) Charter/Headboat (CHB) category; and require a 
sea turtle control device in Atlantic HMS pelagic longline (PLL) and 
bottom longline (BLL) fisheries. Public comments have been received 
requesting authorization of these gears for harvest of Atlantic tunas. 
The purpose of this proposed rule is to provide additional 
opportunities for fishermen to harvest Atlantic tunas within quotas, 
size limits, or other established limitations and to distinguish green-
stick fishing gear from current definitions of other authorized gear 
types. The purpose of the proposed rule to require sea turtle control 
devices in the PLL and BLL fisheries is to achieve and maintain low 
post-release mortality of sea turtles thus maintaining consistency with 
the 2004 Biological Opinion (BiOp) for the Atlantic PLL fishery and to 
increase safety at sea for fishermen when handling sea turtles caught 
or entangled in longline fishing gear.

DATES: Written comments on the proposed rule must be received by June 
16, 2008. Hearings will be held in May and June 2008. See the preamble 
of this notice for specific dates, times, and locations.

ADDRESSES: Comments may be submitted by any one of the following 
methods (please identify comments by ``0648-AV92''):
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Fax: 727-824-5398, Attn: Randy Blankinship
     Mail: Randy Blankinship, Highly Migratory Species 
Management Division, National Marine Fisheries Service, 263 13th Avenue 
South, Saint Petersburg, FL 33701
    Instructions: All comments received are part of the public record 
and will generally be posted to Portal http://www.regulations.gov 
without change. All Personal Identifying Information (for example, 
name, address, etc.) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments. Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    The hearings will be held in Saint Peterburg, FL; Manteo, NC; 
Manahawkin, NJ; Gloucester, MA; Belle Chasse, LA; and Orlando, FL. See 
the preamble of this notice for specific dates, times, and locations.
    Supporting documents including the Environmental Assessment, 
Initial Regulatory Flexibility Analysis, and Regulatory Impact Review 
associated with this proposed rule are available from NMFS upon 
request.

FOR FURTHER INFORMATION CONTACT: Randy Blankinship, 727-824-5399, or 
Sarah McLaughlin, 978-281-9260.

SUPPLEMENTARY INFORMATION: Atlantic tunas 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). ATCA authorizes the Secretary of Commerce (Secretary) to 
promulgate regulations, as may be necessary and appropriate, to 
implement recommendations by the International Commission for the 
Conservation of Atlantic Tunas (ICCAT). The authority to issue 
regulations under the Magnuson-Stevens Act and ATCA has been delegated 
from the Secretary to the Assistant Administrator for Fisheries, NOAA 
(AA). The implementing regulations for Atlantic HMS are at 50 CFR part 
635.

Background

    On May 28, 1999, NMFS published in the Federal Register (64 FR 
29090) final regulations, effective July 1, 1999, implementing the 
Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 
FMP). Among other things, these regulations included a list of fishing 
gears authorized for harvest of HMS. On October 2, 2006, NMFS published 
in the Federal Register final regulations (71 FR 58058), effective 
November 1, 2006, implementing the ``Final Consolidated Atlantic HMS 
Fishery Management Plan'' (Consolidated HMS FMP), which consolidated 
the management of all Atlantic HMS (i.e., sharks, swordfish, tunas, and 
billfish) into one comprehensive FMP.
    This proposed rule would: (1) authorize green-stick gear for the 
harvest of Atlantic tunas by Atlantic Tunas General category permitted 
vessels; (2) authorize green-stick gear for the harvest of Atlantic 
tunas by HMS Charter/Headboat (CHB) permitted vessels; (3) authorize 
green-stick gear for harvest of Atlantic tunas by Atlantic Tunas 
Longline category permitted vessels (but continuing to restrict BFT 
retention to incidental retention only); (4) authorize harpoon use for 
Atlantic tunas fishing by HMS CHB permitted vessels; and (5) require 
possession and use of a sea turtle control device as an addition to the 
already existing requirements for sea turtle bycatch mitigation gear. 
This action is published in accordance with the framework procedures 
set forth in the Consolidated HMS FMP and is supported by the 
analytical documents prepared for the Consolidated HMS FMP.
    Green-stick and harpoon gears are used primarily to catch yellowfin 
tuna (YFT) and BFT, respectively. The most recent YFT stock assessment, 
conducted in 2003, indicated that the range of biomass estimates (B) 
spanned the estimate of biomass at maximum sustainable yield 
(BMSY), and the range of fishing mortality (F) estimates 
spanned the estimate of fishing mortality at MSY (FMSY). 
This means that the stock may be approaching an overfished condition. 
YFT is the principal species of tropical tuna landed by U.S. fisheries 
in the western North Atlantic. Total estimated landings, including 
recreational landings, were 5,568 metric tons (mt) and 7,075 mt in 2005 
and 2006, respectively, as reported by the United States to ICCAT in 
2007.
    The latest western Atlantic BFT stock assessment conducted in 2006 
indicated that estimated spawning stock biomass (SSB) levels were well 
below the estimated SSBMSY and estimates of F were above 
FMSY. Thus, for western Atlantic BFT, the stock is 
overfished and overfishing is occurring. The ICCAT Standing Committee 
on Research and Statistics (SCRS) considered this and other information 
when making recommendations to ICCAT for setting total allowable catch 
(TAC) limits that would allow for stock rebuilding. Among ICCAT member 
states, the United States receives 57.48 percent of the adjusted 
western Atlantic BFT TAC which is determined after allocations have 
been made for member states with minor harvests and for bycatch/
incidental catch by the United States, Canada, and Mexico. For 2007, 
the total U.S. TAC is 1,190.12 mt. From 1982 to 2004, the level of U.S. 
BFT landings were generally reflective of the annual U.S. quota. That 
is, regulatory mechanisms capped landing levels near annual quotas. 
Since 2004, total BFT landings have been considerably less than the 
adjusted fishing year quota with 2005, 2006, and 2007 landings 
representing 33, 15, and 40 percent of

[[Page 24924]]

the adjusted quotas for those fishing years, respectively. Commercial 
fisheries are focused on ``large medium'' BFT [73 inches (185 cm) to 
less than 81 inches (206 cm)] and ``giant'' BFT [81 inches (206 cm) or 
greater]. Commercial categories are monitored by a census of landing 
cards (submitted for each fish landed), whereas recreational catch and 
landings are monitored by NMFS via the Large Pelagic Survey, the NMFS 
Automated Landings Reporting System, and cooperative state harvest 
tagging programs in North Carolina and Maryland. The majority of BFT 
landings are by handgear fisheries in the commercial Atlantic Tunas 
General category and recreational HMS Angling and HMS CHB categories. 
Atlantic Tunas General category fisheries are focused in New England 
during the summer and fall and the South Atlantic during the winter. 
Atlantic Tunas General category fishing year quotas, adjusted as 
necessary for underharvest, have not been met since 2004, when landings 
amounted to 96 percent of the quota. Atlantic Tunas General category 
landings, as a percentage of adjusted General category quota, were 33 
percent (234 mt out of 707.3 mt) for 2005, 14 percent for 2006 (165 mt 
out of 1,163.3 mt), and 19 percent for 2007 (121 mt out of 643.6 mt).
    BFT movements throughout the Atlantic are the subject of much 
research and affect the availability of harvest for regional fisheries. 
Over the last few years, the availability of large medium and giant BFT 
in the New England area has declined, which has reduced the ability of 
Atlantic Tunas General category fishermen to harvest the June through 
September subquotas and the ability of purse seine and harpoon 
fishermen to harvest their respective quotas, which are traditionally 
taken in the New England region. The reason for the decline in 
availability of medium and giant BFT is unknown, but two possible 
explanations are: 1) that the distribution of BFT in the Atlantic has 
changed in recent years with more fish present in North Atlantic waters 
off Canada; and/or 2) BFT abundance has decreased in the Western 
Atlantic.
    NMFS intends with this proposed rule to allow harvest of Atlantic 
tunas with gears that are generally efficient in harvesting target 
species and, at the same time, are low in bycatch and bycatch 
mortality. Allowing gears with these characteristics may have benefits 
to target and non-target species over gear with higher bycatch and 
bycatch mortality levels. As described above, since 2004, U.S. BFT 
landings have been well within the U.S. quota allocation. Authorization 
of green-stick and harpoon gears in this proposed rule is not expected 
to result in a great increase in BFT landings; however, if an increase 
were to occur, repeated quota under-harvests in recent years indicate 
that room exists within the U.S. BFT quota allocation to allow for some 
additional landings. Additionally, the 2006 ICCAT Recommendation 
regarding western Atlantic BFT included a provision for a Contracting 
Party to transfer up to 15% of its TAC to other Contracting Parties. 
Also, there is continued interest among ICCAT contracting parties for 
unharvested western Atlantic BFT quota, and this has the potential to 
result in requests for transfer of TAC and/or reallocation of the 
Western Atlantic TAC at ICCAT to other member nations in the future. To 
the extent that the U.S. fishery is able to fill the U.S. BFT quota, 
the United States would increase the likelihood of maintaining its 
allocation.
    The 2004 BiOp for the PLL fishery found that the long-term 
continued operation of the Atlantic PLL fishery as proposed was likely 
to jeopardize the continued existence of leatherback sea turtles, a 
species listed as endangered under the Endangered Species Act (ESA). 
Reasonable and prudent alternatives (RPAs) under section 7 of the ESA 
(50 CFR 402.02) were developed and implemented to avoid jeopardy by, 
among other things, reducing post-release mortality of leatherback 
turtles. The RPAs included several measures to accomplish these goals, 
one of which was to require the use of gear removal measures to 
maximize post-release survival. On July 6, 2004, NMFS published the 
final rule (69 FR 40736) implementing sea turtle bycatch and bycatch 
mortality mitigation measures for the PLL fishery. This final rule 
provided for additional rulemaking and non-regulatory actions, as 
necessary, to implement any other management measures required under 
the 2004 BiOp.

Fishing Gear Authorization - Green-Stick Gear

    Green-stick gear is a fishing gear generally used for tuna fishing 
in several areas of the world and consists of a mainline with hooks on 
leaders or gangions trolled from a long fiberglass or bamboo pole. 
Baits used with green-stick gear may be artificial or natural. Green-
stick gear has been used in the Atlantic commercial and recreational 
bigeye (BET), albacore, YFT, skipjack (collectively referred to as BAYS 
tunas), and BFT fisheries since the mid-1990s, but it was not 
originally included as a separate gear on the list of authorized HMS 
fishery gears in the 1999 FMP. Logbook records show that commercial 
catches of BAYS and BFT with green-stick gear continued in the Atlantic 
Tunas General, Atlantic Tunas Longline, and the HMS CHB categories and 
were classified either as ``handgear'' catches in the Atlantic Tunas 
General and HMS CHB categories or as ``longline'' catches in the 
Atlantic Tunas Longline category, depending on gear configuration. In 
recent years, public comments indicate that green-stick gear use, under 
current regulations, does not well suit the fishing methods and 
locations preferred by fishermen wanting to use the gear.
    In order to address these public comments, NMFS considered an 
alternative in the Draft Consolidated HMS FMP to authorize green-stick 
gear for harvest of BAYS tunas. Sparse data on green-stick gear use 
that was available for the Draft Consolidated HMS FMP indicated that 
YFT dominated green-stick gear landings with BFT and BET making up a 
small portion of the catch. During public comment on the Draft 
Consolidated HMS FMP, comment was received expressing interest in using 
the gear to target other species, including BFT.
    NMFS had, and continues to have, concern about the health of BFT 
stocks as they are severely overfished with overfishing occurring. 
Because of NMFS' concern at that time about the potential for increased 
effort that might occur, and the potential for such an increase in 
effort and interest in targeting BFT to negatively affect BFT stocks, 
NMFS did not authorize green-stick gear as a separate gear at that time 
in the Final Consolidated HMS FMP.
    Instead, in the Consolidated HMS FMP, NMFS clarified that green-
stick gear could continue to be used in a limited way as long as the 
green-stick gear use met the definition of ``longline'' (three or more 
hooks are attached by leaders or gangions to a mainline) or 
``handgear'' (two hooks or fewer). Subsequently, HMS Advisory Panel 
(AP) and public comments on green-stick gear use continued to indicate 
that green-stick gear possession and its use as allowed under these 
definitions in the Atlantic Tunas General, HMS CHB, and Atlantic Tunas 
Longline categories does not well suit the fishing methods and 
locations preferred by fishermen wanting to use the gear. In these 
three categories, green-stick gear has historically been fished with up 
to 10 hooks or gangions. Under the current definitions, green-stick 
gear with three or more hooks or gangions attached to a mainline would 
be considered a longline; however, longline is not an authorized gear 
for Atlantic Tunas

[[Page 24925]]

General or HMS CHB category permitted vessels. Also under current 
regulations regarding Atlantic Tunas Longline permitted vessels, green-
stick gear with three or more hooks attached to a mainline, which meets 
the definition of longline, may not be possessed in PLL or BLL closed 
areas.
    Following publication of the Consolidated HMS FMP, NMFS continued 
to look for additional data to characterize more completely the green-
stick gear fishery and collected anecdotal information from the public 
about the green-stick gear fishery. Additional data on green-stick gear 
fishing not included in the Draft Consolidated HMS FMP was obtained 
from NMFS Coastal Logbooks. These data also showed that YFT dominated 
the green-stick gear catch and that BET and BFT were the second and 
third largest green-stick gear catch by weight from 1999-2007. The 
Coastal Logbooks also showed that green-stick gear has a low bycatch 
rate and that the gear has been used over a long period of time. These 
data confirmed other anecdotal information received from fishermen 
about the dominant species caught and bycatch rate of the green-stick 
gear fishery. They also indicated that fishing pressure on BFT stocks 
has occurred with green-stick gear since at least 1999 and these 
landings have been recorded and included in the overall U.S. BFT catch 
data reported to ICCAT, even if it has been difficult to specifically 
identify these landings by gear. While there is a possibility that 
effort in the BFT fishery may increase if green-stick gear is 
authorized for harvest, the information above indicates that green-
stick gear effort has developed to its current level over a period of 
several years. Due to the capital investments involved in rigging a 
vessel to use green-stick gear that are described below along with the 
harvest monitoring and size and retention limit capabilities available 
to NMFS to limit harvest of BFT as needed, NMFS believes that it is 
unlikely that effort in the green-stick fishery for BFT will increase 
greatly or that effort increases will significantly impact BFT stocks.
    During this period, NMFS continued to receive comment on the gear 
definitions as they applied to rod and reel gear. Fishermen said that 
it has been common practice in many fisheries for many years to use 
more than two hooks on rod and reel gear. As mentioned previously, rod 
and reel is commonly described by NMFS as having no more than two hooks 
to avoid confusion with the longline definition which states that a 
longline ''...consists of a mainline or groundline with three or more 
leaders (gangions) and hooks, whether retrieved by hand or mechanical 
means (50 CFR 635.2).'' To address confusion and comments from the 
public requesting the continued ability to use more than two hooks on 
rod and reel, NMFS notes that the absence of a mainline on rod and reel 
gear excludes it from the longline definition and thus, it may be used 
with more than two hooks.
    In this action, NMFS proposes the authorization of green-stick gear 
in the Atlantic tunas fishery (to include BFT) after considering 1)the 
additional data on the green-stick gear fishery which confirmed that 
YFT dominate the catch; 2) that BET and BFT have been landed with this 
gear over the period 1999-2007; 3) that large increases in effort or 
landings of BFT in the green-stick gear fishery are unlikely; and 4) 
that bycatch rates in the green-stick fishery are low. When developing 
this proposed rule, NMFS assessed the available information on past and 
present use of green-stick gear in Atlantic tuna fisheries as a 
baseline for analyzing the anticipated effects of green-stick gear. The 
proposed rule would define green-stick gear as an ``an actively trolled 
mainline attached to a vessel and elevated or suspended above the 
surface of the water with no more than 10 hooks or gangions attached to 
the mainline. The suspended line, attached gangions and/or hooks, and 
catch may be retrieved collectively by hand or mechanical means. Green-
stick does not constitute a pelagic longline or a bottom longline as 
defined in this section or as described at Sec.  635.21(c) or Sec.  
635.21(d), respectively.'' Green-stick gear is also distinguished from 
PLL and BLL gear in that green-stick gear is actively trolled and does 
not have floats capable of supporting the mainline, as with PLL, nor 
weights and/or anchors capable of maintaining contact between the 
mainline and the ocean bottom, as with BLL. With such distinction 
between gears, this proposed rule would allow green-stick gear to be 
used by Atlantic Tunas Longline category permitted vessels at times and 
in areas including, but not limited to, times and areas closed to 
longline fishing if the requirements for removal of any one of the 
elements of a pelagic longline are met. The proposed rule would not 
change the target catch requirements currently in place for Atlantic 
Tunas Longline vessels, thus ensuring that BFT would remain an 
incidental catch in the longline fishery regardless of whether green-
stick gear is used.
    Collection of data on fishing activity with green-stick gear is 
important to adequately assess gear performance, efficiency, and 
bycatch levels. Two existing programs that may be used to collect 
information on the green-stick gear fishery are vessel logbooks and 
dealer reports. Currently, NMFS has the authority to require logbook 
reporting by HMS CHB and Atlantic tunas vessels for which a permit has 
been issued. However, only Atlantic Tunas Longline category permit 
holders currently are selected for reporting and thus required to 
report via logbooks. The logbook program provides self-reported catch, 
effort, and discard information. Although not currently proposed, if 
NMFS were to require HMS CHB and Atlantic Tunas General category 
vessels to report via logbooks, a large increase in the capacity of the 
logbook program would be required to handle the increased number of 
logbook reports. Dealer reports made through the trip ticket program in 
the southeastern United States and various dealer reporting programs in 
the northeastern United States could provide landings information and, 
for some states, effort information. This information is gathered by 
dealers or their staff based on interviews of the vessel captain or 
crew. To facilitate green-stick gear specific data collection, 
coordination of data collection effort for this gear among states and 
regions and designation of a specific gear code would likely be 
necessary. NMFS seeks public comment on the pros and cons of these data 
collection programs regarding the quality and applicability of the 
information collected as well as social and economic impacts.
    Under existing regulations, Atlantic Tunas Longline category 
permitted vessels are currently allowed to possess onboard and/or use 
only 18/0 or larger circle hooks with an offset not to exceed 10[deg] 
and/or 16/0 or larger non-offset circle hooks in all areas except the 
Northeast Distant area, where other requirements apply (50 CFR 
635.21(c)(5)(iii)(C)). The existing regulation was developed to reduce 
post-release hooking mortality (PRM) of sea turtles with the added 
benefit of reducing PRM of Atlantic billfish, other bycatch species, 
and regulatory discards. As green-stick fishing gear is actively 
trolled and the baits are fished at or above the surface of the water, 
circle hooks used with green-stick gear are not as effective in hooking 
fish because the line and hook cannot be slowly and steadily pulled 
through the mouth to lodge in the fish's jaw. Instead fish are hooked 
when the fish actively strikes the bait. As a result of this active 
strike, J-hooks are less likely to be ingested. Ingestion of hooks by 
fish has been related to the practice of dropping

[[Page 24926]]

baits back to the fish thereby allowing the fish more time to swallow a 
bait. Dropping baits back to a fish is not practiced with green-stick 
gear because the action of the bait that lures a fish to strike is 
caused by tension on the mainline, the flex of the fiberglass pole, and 
the forward movement of the vessel while actively trolling. The fish 
strike occurs when the baits are actively trolled at or above the 
surface of the water. Also, the size of the mainline and haul-back 
gear, which is often power operated, does not facilitate effective and 
timely drop-back of the bait as is possible with a rod and reel. 
Because J-hooks are more effective than circle hooks when fished with 
green-stick gear, and J-hooks are not expected to result in high PRM 
rates, this proposed rule would allow Atlantic Tunas Longline permitted 
vessels to possess no more than 20 J-hooks if green-stick gear is 
onboard. Onboard Atlantic Tunas Longline permitted vessels, J-hooks 
would only be allowed for use with green-stick gear, and would be 
limited to 10 hooks for each green-stick gear.
    In the Gulf of Mexico, PLL vessels are prohibited from using live 
bait in order to reduce the incidental catch of Atlantic billfish. NMFS 
is concerned that the 20 J-hook allowance, as described above, may 
decrease NMFS ability to enforce the live bait prohibition because many 
fishing rigs that are used to catch live bait are rigged with J-hooks. 
The possession of such J-hooks is currently prohibited. NMFS seeks 
comment on the possibility of establishing a minimum hook size for J-
hooks allowed with green-stick gear onboard Atlantic Tunas Longline 
Permitted vessels. Such a requirement could be applied to the entire 
Atlantic, Gulf of Mexico, and Caribbean Sea or to the Gulf of Mexico 
only.
    PLL vessels are restricted in the Northeast Distant Restricted 
Fishing Area (NED) to possessing onboard and/or using only whole 
Atlantic mackerel and/or squid bait for the purpose of reducing sea 
turtle interactions as stipulated by the 2004 BiOp. For similar 
reasons, PLL vessels outside the NED are restricted to possessing 
onboard and/or using only whole finfish and/or squid bait. Green-stick 
gear is usually fished with artificial baits most of which are shaped 
like squid and made of rubber or plastic. The baits are preferred 
because they last longer on the hook when trolled in comparison to 
natural, dead squid which often fall apart relatively quickly when 
trolled. Some PLL vessels are rigged with and use both green-stick gear 
and longline gear on the same trip. NMFS seeks comment on allowing PLL 
vessels to possess and/or use artificial baits if green-stick gear is 
onboard.
    A portion of green-stick landings has been reported via the NMFS 
Southeast Region's Coastal Logbook from 1999-2007 (i.e., by Atlantic 
Tunas General or Atlantic Tunas Longline category fishermen who also 
hold a NMFS Southeast Region fishing permit that requires logbook 
reporting). The limited amount of available data from these 98 fishing 
trips indicates that green-stick gear landings were dominated by YFT 
(82.9 percent), followed by BET (9.8 percent), BFT (2.3 percent), and 
little tunny (2.0 percent) by weight. All of the landings were reported 
from the area off the mid-Atlantic states.
    Some commercial green-stick gear catches were reported in the PLL 
Logbook Program from 1999-2002 prior to the green-stick gear data field 
being eliminated from the logbook form in 2003. Of the 54 green-stick 
gear sets reported, 53 were from the Mid-Atlantic Bight Statistical 
Area and one set was reported from the Northeast Coastal Statistical 
Area. Landings from this dataset were dominated by YFT (81.9 percent), 
followed by dolphin fish (6.9 percent) and other BAYS tunas (6.5 
percent) by number. Several other species were reported as well, 
including four BFT.
    There is a potential for increased landings of YFT, BET, BFT, and 
other HMS under this proposed rule, but NMFS cannot accurately quantify 
anticipated landings for this gear due to the limited amount of effort 
and landings information available. These potential increases are not 
anticipated to be large however, because this gear type has been and 
continues to be used in Atlantic HMS fisheries. Some green-stick gear 
logbook information is included in species-specific stock assessments 
as the effort and landings are grouped with other fishing activity 
conducted with similar fishing techniques, such as trolling. This 
somewhat mitigates the lack of information specific to green-stick gear 
as stock assessment estimates of fishing mortality historically 
included and continue to include some green-stick gear fishing 
activity. Additionally, for BFT, all landings are required to be 
reported (commercial landings by dealers and via logbooks if a vessel 
is selected, and recreational landings via the NMFS Automated Landings 
Reporting System, on-line, or, in North Carolina or Maryland, to a 
reporting station); therefore, landings with green-stick gear have been 
and continue to be counted against the U.S. BFT quota.
    As of November 30, 2007, there were 3,616 Atlantic Tunas General, 
3,901 HMS CHB, and 218 Atlantic Tunas Longline Category permitted 
vessels that, under this proposed rule, would be authorized to use 
green-stick gear. Because no mechanism exists to identify whether an 
individual HMS-permitted vessel uses green-stick gear, an accurate 
count of these vessels cannot be obtained; however, a small portion of 
these vessels likely use green-stick gear and would continue to do so. 
While NMFS does not anticipate greatly increased landings from these 
vessels, this action could result in an increase in the overall effort 
deployed by these categories of permit holders. This could occur if 
additional fishermen become aware of green-stick gear efficiency in 
catching Atlantic tunas and of the higher quality of fish product that 
can be delivered to the dock, resulting in higher ex-vessel prices. 
Green-stick gear could also be deployed at times and in ways that 
enable more hooks to be fished during a trip, such as while a vessel is 
in transit between fishing locations and during times that other 
authorized gears may be deployed. Thus, NMFS anticipates that if 
increased landings occur, the largest increases likely would be for 
YFT, BET, and BFT as these are the three most frequently caught tunas 
reported in Coastal and PLL logbooks. NMFS anticipates that any such 
increase in effort would result in minimal increases in bycatch or 
bycatch mortality of target and non-target species.
    Under this proposed rule, bycatch mortality of released fish, 
including billfish, is anticipated to be low given that baits on green-
stick gear are trolled at high speed and deployed at or slightly above 
the surface of the water. Fish are hooked as they strike the baits 
which most frequently results in hooking locations in the jaw or other 
mouth area and does not often result in deep-hooking. Ingestion of 
hooks due to dropping the baits back to a fish is not anticipated as 
dropping the baits back is not practiced with green-stick gear as 
described above. Adverse ecological impacts are anticipated to be 
minimal because green-stick gear is an actively trolled and tended 
gear. Thus, fish may be retrieved quickly resulting in minimal 
physiological stress and an improved release condition in comparison to 
longline gear. Also, these same benefits for improved release condition 
result from the power haul-back capability of green-stick gear, thus in 
this way, may have benefits over rod and reel for Atlantic tunas. Based 
on available information, interactions with sharks while using green-
stick gear are rare.

[[Page 24927]]

    Interactions with protected resources are not anticipated to 
increase as green-stick gear is a surface gear that is actively trolled 
with baits deployed at or slightly above the surface of the water. 
Green-stick gear does not typically pose a risk of interaction with 
protected resources because sea turtles do not feed while swimming at a 
speed fast enough to keep up with green-stick gear baits while they are 
trolled, and marine mammals are not known to typically interact with 
baits trolled at or above the water's surface. The gear is tended as it 
is fished and therefore can be monitored and or maneuvered to avoid any 
interactions should they become imminent. There is no record of 
protected species interactions in the existing data.
    The proposed rule is expected to have positive social and economic 
impacts as green-stick gear is popular with Atlantic Tunas General 
category permit holders in areas of the Atlantic where it has been used 
since at least the mid-1990s. Positive economic impacts are expected as 
authorization of green-stick gear for harvest of Atlantic tunas would 
allow permit holders some additional opportunities for harvest. 
Negative public comments were not expressed during a series of public 
information meetings about green-stick authorization held during the 
summer of 2007 in Foxboro, MA; Silver Spring, MD; Morehead City, NC; 
and Saint Petersburg, FL; and at the South Atlantic Fishery Management 
Council (SAFMC) in Key West, FL. Green-stick gear authorization was 
also discussed at several HMS Advisory Panel (AP) meetings in recent 
years. A number of AP members expressed support for green-stick gear 
authorization for Atlantic tunas including BFT. A commonly expressed 
reason for support at the public information meetings, the SAFMC 
meeting, and the HMS AP meetings was the low bycatch rate of green-
stick gear and the potential for low post-release morality rates of 
fish released from green-stick gear in comparison with other fishing 
gears such as longline (which is not tended) or rod and reel (due to 
long average fight times).

Fishing Gear Authorization - Harpoon

    HMS CHB vessels may currently fish under the Atlantic Tunas General 
category regulations and may fill the daily retention limit for either 
the Atlantic Tunas General or the HMS Angling category. The size 
category of the first BFT retained determines the fishing category 
applicable to the vessel that day. For example, if an HMS CHB catches 
and retains a school, large school, or small medium BFT [measuring 27 
inches (69 cm) to less than 73 inches (185 cm) curved fork length], the 
vessel may not retain a commercial-sized BFT [measuring 73 inches (185 
cm) or greater] for sale. HMS CHB permitted vessels are allowed one 
trophy BFT per year, which cannot be sold. HMS CHB vessel operators may 
sell commercial-sized BFT only when fishing under the Atlantic Tunas 
General category regulations. Other than for the Harpoon category, dart 
harpoon use currently is authorized only as a secondary gear (i.e., as 
cockpit gear) to assist in subduing, or bringing onboard a vessel, 
Atlantic HMS that have been first caught or captured using authorized 
primary gears.
    This proposed rule would authorize harpoon gear for the commercial 
harvest of Atlantic tunas, including BFT, for HMS CHB permitted 
vessels. While fishing under the rules that apply when filling the 
Atlantic Tunas General category BFT retention limit, HMS CHB vessels 
would be able to use harpoon gear to fish for and retain BFT greater 
than 73 inches (185 cm) curved fork length. NMFS received information 
indicating that authorization of harpoon gear in the HMS CHB category 
would allow HMS CHB operators increased flexibility and efficiency in 
harvesting BFT, particularly given the high costs of BFT fishing.
    This action would not change the number or size of BFT allowed to 
be retained on an HMS CHB vessel, but would provide HMS CHB fishermen 
the opportunity to use harpoon gear in filling the Atlantic Tunas 
General category daily retention limit. The Atlantic Tunas General 
category quota and overall U.S. TAC are designed to allow for BFT 
rebuilding, and the Atlantic Tunas General category retention limit is 
specified to allow fishing opportunities over the duration of the 
Atlantic Tunas General category season and in all areas, without 
exceeding the Atlantic Tunas General category quota.
    NMFS does not anticipate that harpoon gear would be used in the 
pursuit of tunas other than BFT. Available Northeast and Southeast 
Region Vessel Trip Report data indicate that, for Atlantic tunas 
fishing, harpoon gear is only used to target BFT. Since 1996, there 
have been five trips in which harpoon gear was used to land a BAYS tuna 
and all were trips that targeted swordfish. In these trips, YFT was the 
tuna species landed. NMFS also anticipates the authorization of harpoon 
use by HMS CHB vessels will not result in an expanded geographic area 
of harpoon use for BFT, which has historically been off New England, 
and primarily on the fishing grounds off Massachusetts, New Hampshire, 
and Maine, because of availability of commercial-sized fish, fishing 
ground conditions, and the costs of outfitting a vessel (described 
below), among others.
    There were 3,901 HMS CHB permitted vessels as of November 30, 2007. 
Focusing on the area where NMFS anticipates that harpoon gear would be 
used on HMS CHBs to capture a BFT, this action could apply to the 91 
HMS CHB permitted vessels in Maine, 53 in New Hampshire, 644 in 
Massachusetts, and 159 in Rhode Island.
    Impacts of handgear used to fish for Atlantic tunas under the 
Atlantic Tunas General category and Harpoon categories are described in 
full in the Consolidated HMS FMP. Harpoon gear is selective gear that 
is used to capture only one large pelagic fish (primarily BFT but also 
swordfish) at a time. Bycatch and bycatch mortality of commercial 
handgear is considered to be low, particularly for harpoons, which are 
thrown individually at a fish, determined by the fisherman to be 
greater than the minimum commercial size. There is no information or 
evidence of interactions between harpoon users targeting Atlantic tunas 
and threatened or endangered sea turtles, marine mammals, or other 
protected resources. The harpoon fishery is a Category III fishery 
under the Marine Mammal Protection Act, i.e., one with remote 
likelihood of serious injury or mortality to marine mammals.
    The proposed rule is expected to have positive social and economic 
impacts, specifically for those vessels that have success in harpooning 
BFT that may be available at the water's surface. Landings data and 
information from fishermen indicate that there are times when the 
feeding behavior of commercial sized BFT makes hooking a fish 
difficult. NMFS has received comment over the last few years that the 
abundance and feeding behavior of dogfish is making trolling and 
chumming for BFT even more difficult. To the extent that a fisherman 
could harpoon BFT when the fish are present at the water surface, this 
action could increase the likelihood of fully utilizing the Atlantic 
Tunas General category daily retention limit. However, NMFS anticipates 
that the ability to harpoon a BFT will not necessarily lead to a 
substantial increase in BFT being caught with harpoon gear on HMS CHBs. 
Use of harpoon gear typically involves installation of a pulpit to the 
bow of the vessel (with approximate costs ranging from $10,500 - 
$14,500) and requires a certain degree of skill. There may be

[[Page 24928]]

slightly negative social and economic impacts for existing HMS CHB 
vessel owners due to the potential influx of vessels from the Atlantic 
Tunas General and Harpoon categories to the HMS CHB category. NMFS does 
not anticipate the number of permit holders that will seek to change 
permit categories will be high, due to the other costs and benefits 
associated with each permit category (such as the requirement for a 
U.S. Coast Guard Captain's license for HMS CHB vessels).
    This action would be consistent with the final rule to implement 
the 1999 Atlantic Tunas, Swordfish, and Sharks FMP (64 FR 29090, May 
28, 1999), which expanded the list of gear types authorized for HMS CHB 
permitted vessels to include bandit gear (which was already authorized 
for use by Atlantic Tunas General category permitted vessels) as part 
of an effort to achieve consistency in HMS regulations. This action 
would provide consistency in the regulations regarding authorized 
handgear used historically for commercial harvest of BFT, and would 
increase opportunities for commercial handgear fishermen to attain the 
BFT Atlantic Tunas General category quota.
    NMFS proposes to authorize harpoon gear for HMS vessels only on 
non-for-hire trips (such as trips with only captain and crew aboard the 
vessel). NMFS proposes to restrict harpoon gear use to these trips 
because of concerns regarding, among other things, safety at sea 
considerations and bycatch issues. Therefore, if the authorization is 
restricted to non-for-hire trips, there should be no incentive to 
harpoon a recreational sized fish (27 to less than 73 inches), because 
such activity would be illegal, and paid charter passengers, seeking 
recreational fishing opportunities would not be present. Additionally, 
under this subalternative, there would be less risk of bycatch and of 
discard mortality. Vessels on non-for-hire trips, on which the intent 
is to harvest BFT greater than 73 inches, are not as likely to expend 
fishing effort in areas of mixed size BFT as are vessels on for-hire 
trips. As the current regulations state that the size category of the 
first BFT retained determines the fishing category applicable to the 
vessel that day, an HMS CHB vessel that catches and retains a school, 
large school, or small medium BFT (measuring 27 to less than 73 inches 
curved fork length) may not also retain a commercial-sized BFT 
(measuring 73 inches or greater) for sale. HMS CHB vessel operators may 
sell commercial-sized BFT only when fishing under the Atlantic Tunas 
General category regulations. If harpoons are authorized for HMS CHB 
vessels on for-hire trips, it is NMFS' understanding that, due to 
safety and liability concerns, only vessel captain and crew would be 
involved in harpoon fishing (i.e., paying passengers would not be 
offered the opportunity to use the gear). Harpoon gear is not 
authorized for recreational fishing (i.e., under the Angling category 
permit or applicable fishing regulations). Therefore, if the 
authorization is restricted to non-for-hire trips only, there should be 
no incentive to harpoon a recreational sized fish (27 to less than 73 
inches), as such activity would be illegal and as paid charter 
passengers, who would seek recreational fishing opportunities, would 
not be present. Both subalternatives are expected to result in positive 
economic impacts as described above, by allowing HMS CHB operators 
additional opportunities to fully utilize the Atlantic Tunas General 
category retention limit.
    NMFS specifically requests public comment on whether potential 
authorization of harpoon gear should be for all HMS CHB trips, i.e, 
both for-hire trips (those taken with paying passengers aboard, more 
than three persons onboard for uninspected vessels, or more persons 
aboard than the number of crew specified on the vessel's Certificate of 
Inspection for U.S. Coast Guard Inspected vessels) and non-for-hire 
trips (such as trips with captain and crew only) or only for non-for-
hire trips.

Sea Turtle Control Devices

    This proposed rule would require possession and use of sea turtle 
control devices as an addition to the already existing requirements for 
sea turtle bycatch mitigation gear. Two types of sea turtle control 
devices, the turtle tether and T&G ninja sticks (Figures 1 and 2), 
would be approved and required to meet this requirement. These devices 
were developed by fishermen in the PLL fishery in response to safety 
concerns for fishing vessel crew members and for incidentally captured 
sea turtles, as well as to facilitate the likelihood of maximum gear 
removal and reducing PRM. Subsequently, information collected by the 
NMFS Southeast Fisheries Science Center showed that use of these two 
types of sea turtle control devices better enabled fishermen to remove 
fishing hooks and line from sea turtles by better controlling the 
animals, thus likely reducing post-release hooking mortality of sea 
turtles.
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    The function of a turtle control device is to control the front 
flippers of the sea turtle so that the animal can be controlled at the 
side of the vessel while the gear is removed. Restraint is most 
effective when a pair of turtle control devices is used (two sets of 
turtle tethers, two sets of T&G ninja sticks, or one of each style). 
NMFS only proposes to require one turtle control device be possessed 
and used onboard; however, it strongly recommends that two devices be 
possessed and used if vessel and crew size allow.
    The proposed rule would have positive, but unquantifiable 
ecological benefits because an improved ability to remove fishing hooks 
and line from sea turtles likely improves post-release survival of the 
sea turtles. The proposed rule may have a safety-at-sea benefit from 
the use of sea turtle control devices as fishermen using the gear can 
more easily control large sea turtles while fishing hooks and lines are 
being removed. Social and economic impacts of the proposed alternative 
are expected to be minimal. Sea turtle bycatch mitigation gear is 
currently required on Atlantic PLL and BLL vessels. The turtle tether 
is currently recommended, but not required as part of that gear. 
Information on the cost of turtle control devices and the economic 
impact of this proposed rule may be found in the Classification section 
below. Design specifications for the turtle tether and T&G ninja sticks 
are found in Figures 1 and 2. Any turtle control device meeting the 
design standards could be constructed or purchased and used, as long as 
the design is first certified according to the process established by 
the NMFS Pascagoula Laboratory. When new items are certified, a notice 
in the Federal Register will be published as provided for at Sec.  
635.21(c)(5)(iv).

Classification

    This proposed rule is published under the authority of the 
Magnuson-Stevens Act and ATCA. NMFS has preliminarily determined that 
this action is consistent with the Magnuson-Stevens Act, including the 
national standards, and other applicable law, subject to further 
consideration after public comment.
    An EA has been prepared that describes the impact on the human 
environment that could result from implementation of the preferred 
alternatives to authorize green-stick fishing gear for the harvest of 
Atlantic tunas, including BFT; authorize harpoon gear for the harvest 
of Atlantic tunas, including BFT, in the HMS Charter/Headboat (CHB) 
category; and require sea turtle control devices in Atlantic HMS 
pelagic longline (PLL) and bottom longline (BLL) fisheries. Based on 
the EA, Regulatory Impact Review (RIR), and Initial Regulatory 
Flexibility Analysis (IRFA) under the Regulatory Flexibility Act, and a 
review of the National Environmental Policy Act (NEPA) criteria for 
significance evaluated above (NAO 216-6 Section 6.02), no significant 
effect on the quality of the human environment is anticipated from this 
action.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. In compliance with Section 603 of 
the Regulatory Flexibility Act, an Initial Regulatory Flexibility 
Analysis was prepared for this rule. The IRFA analyzes the anticipated 
economic impacts of the preferred actions and any significant 
alternatives to the proposed rule that could minimize economic impacts 
on small entities. A summary of the IRFA is below. The full IRFA and 
analysis of economic and ecological impacts are available from NMFS 
(see ADDRESSES).
    In compliance with section 603(b)(1) and (2) of the Regulatory 
Flexibility Act, the purpose of this proposed rulemaking is, consistent 
with the Magnuson-Stevens Act and ATCA, to authorize fishing gear in 
Atlantic tuna fisheries to increase fishery operational flexibility 
while still achieving the objectives of the Consolidated HMS FMP and to 
allow fishermen additional opportunities to fulfill U.S. quota 
allocations. The purpose of the proposed rule to require a sea turtle 
control device in the PLL and BLL fisheries is to achieve and maintain 
low post-release mortality of sea turtles, thus maintaining consistency 
with the 2004 Biological Opinion for the pelagic longline fishery and 
to increase safety at sea for fishermen when handling sea turtles 
caught or entangled in longline fishing gear. Section 603(b)(3) 
requires Agencies to provide an estimate of the number of small 
entities to which the rule would apply. The proposed rule to authorize 
green-stick fishing gear for the harvest of Atlantic tunas, including 
BFT; authorize harpoon gear for the harvest of Atlantic tunas, 
including BFT, in the HMS CHB category; and require sea turtle control 
devices in Atlantic HMS PLL and BLL fisheries could directly affect 
3,616 Atlantic Tunas General, 3,901 HMS CHB, and 218 Atlantic Tunas 
Longline category permit holders (permit numbers as of November 30, 
2007). All of these permit holders are considered small business 
entities according to the Small Business Administration's standard for 
defining a small entity.
    None of the proposed actions considered for this proposed rule 
would result in any new reporting or record keeping requirements (5 
U.S.C. 603(c)(1)-(4)). New compliance requirements would occur under 
the proposed action to require the possession and use of a sea turtle 
control device onboard PLL and BLL vessels; however, the economic 
impacts are not expected to be significant. This proposed rule does not 
conflict, duplicate, or overlap with other relevant Federal rules (5 
U.S.C. 603(b)(5).
    One of the requirements of an IRFA, under Section 603 of the 
Regulatory Flexibility Act, is to describe any alternatives to the 
proposed rule that accomplish the stated objectives and that minimize 
any significant economic impacts (5 U.S.C. 603(c)). Additionally, the 
Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four 
categories for alternatives that must be considered. These categories 
are: (1) establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (2) clarification, consolidation, or 
simplification of compliance and reporting requirements under the rule 
for such small entities; (3) use of performance rather than design 
standards; and (4) exemptions from coverage for small entities.
    In order to meet the objectives of this proposed rule, consistent 
with the Magnuson-Stevens Act, ATCA, and the Endangered Species Act 
(ESA), NMFS cannot establish differing compliance requirements for 
small entities or exempt small entities from compliance requirements. 
Thus, there are no alternatives that fall under the first and fourth 
categories described above. NMFS developed the alternative to require a 
sea turtle control device so that options exist for fishermen to 
construct the device at minimal cost thus simplifying compliance for 
all entities including small entities (category 3 above). Similarly, 
the design standards (category 4 above) used to allow construction of a 
sea turtle control device at minimal cost satisfies the aforementioned 
objectives of this rulemaking while, concurrently, complying with the 
Magnuson-Stevens Act and ESA.
    NMFS considered eight different alternatives to authorize fishing 
gear in Atlantic tuna fisheries to increase fishery operational 
flexibility in the fishery while still achieving the objectives of the 
Consolidated HMS FMP, to allow fishermen additional opportunities to 
fulfill U.S. quota allocations, and to require a sea turtle control 
device in the PLL and BLL

[[Page 24932]]

fisheries to achieve and maintain low post-release mortality of sea 
turtles. As previously described, and as expanded upon below, NMFS has 
provided justification for the selection of the preferred alternatives 
to achieve the desired objectives.
    Alternative A1 is a no action, or the status quo alternative. This 
alternative would maintain existing regulations for harvesting Atlantic 
tunas, thereby allowing green-stick gear use only as allowed under the 
current definitions and regulations for longline or handgear based on 
the gear configuration. This alternative would continue to consider 
green-stick gear as being within the longline definition if 3 or more 
hooks are attached, and as handgear if 2 or fewer hooks are attached. 
The allowable use of the gear in this way impedes operational and 
economic efficiency in the Atlantic Tunas General category or HMS CHB 
category because rigging of green-sticks with up to 10 hooks is 
effective and fishermen have used green-sticks rigged in this way 
historically for Atlantic tunas. Under alternative A1, the social and 
economic impacts are expected to be minimal, although unquantified 
social and economic impacts may occur to Atlantic Tunas General 
category and HMS CHB permitted vessel holders with the status quo 
because they would not be allowed to use green-stick gear with 3 hooks 
or more unless they purchased an Atlantic Tunas Longline permit. This 
alternative is not preferred because other alternatives increase 
fishery operational and economic flexibility in the fishery while still 
achieving the objectives of the Consolidated HMS FMP and to allow 
fishermen additional opportunities to fulfill U.S. quota allocations.
    Alternative A2, a preferred alternative, would define green-stick 
gear and authorize its use in the commercial Atlantic tuna fishery 
including BFT. Vessels fishing under the Atlantic Tunas General 
category would continue to be subject to all current HMS regulations 
for that category (such as bag and size limits). NMFS does not 
anticipate greatly increased landings from Atlantic Tunas General 
category vessels as green-stick gear has been used in HMS fisheries 
since at least the mid-1990s. While NMFS does not anticipate greatly 
increased landings, Alternative A2 could result in an increase of 
overall effort deployed by this category of permit holders. This could 
occur if additional fishermen become aware of green-stick gear 
efficiency in catching Atlantic tunas and of the high quality of fish 
product that can be delivered to the dock as a result. Higher quality 
fish product often commands high ex-vessel prices, and thus could 
potentially improve the profitability of trips. Under Alternative A2, 
authorization of green-stick gear use is expected to have generally 
positive social impacts as the gear is popular with Atlantic Tunas 
General category permit holders in areas of the Atlantic where it has 
been used.
    The economic impacts under Alternative A2 are expected to be 
positive. Authorization of green-stick gear for harvest of Atlantic 
tunas would allow Atlantic Tunas General category permit holders 
additional opportunities for harvest. Tuna and other species harvested 
commercially with green-stick gear are usually high in quality and 
command higher prices due to the speed with which the fish are brought 
to the vessel, stored on ice, transported to the dock, and sold. 
Economic benefits may be realized through continued, and possibly 
increased, harvest of Atlantic tunas. Use of this gear may result in an 
unknown number of additional trips. The economic benefits may be 
minimal, however, as green-stick gear has been used in U.S. Atlantic 
tuna fisheries for several years.
    Green-stick gear ranges in cost from $1,300-$3,300 for the 
fiberglass pole. Completely outfitting a vessel with hydraulic spool 
and other tackle to use the gear would cost between $4,000-$6,000 
depending on the size of the rig. Anecdotal information indicates that 
some fishermen may run mainlines from outriggers, a flying bridge, or a 
tuna tower, which would not be as costly. Outfitting costs are 
discretionary for fishermen as the gear is not required to participate 
in the fishery. This gear would be authorized for use from properly 
permitted vessels only. The current cost of a Federal vessel permit is 
$28.00 per year.
    Alternative A3, a preferred alternative, would define green-stick 
gear as in Alternative A2 above and authorize its use in the commercial 
Atlantic tuna fishery for BAYS and BFT by HMS CHB category vessels. 
This alternative would also authorize green-stick gear for recreational 
harvest of Atlantic tunas when an HMS CHB permitted vessel is on a for-
hire trip. Under current regulations, HMS CHB permitted vessels may 
sell Atlantic tunas whether or not they are for-hire, thus Atlantic 
tunas caught under a recreational retention limit on an HMS CHB vessel 
may be sold. Because of this HMS CHB permit provision and NMFS' 
intention to authorize green-stick for commercial harvest of Atlantic 
tunas, NMFS prefers Alternative A3. Vessels fishing under the HMS CHB 
category would continue to be subject to all current HMS regulations 
for that category. Alternative A3 is expected to have positive social 
and economic impacts similar to those described under Alternative A2 
above, but with the added economic benefits associated with authorizing 
the use of green-stick gear for recreational harvest of Atlantic tunas 
even when an HMS CHB permitted vessel is on a for-hire trip.
    Alternative A4, a preferred alternative, would define green-stick 
gear as in Alternative A2 and authorize its use in the directed 
commercial Atlantic BAYS tuna fishery and allow for the incidental 
retention of BFT by Atlantic Tunas Longline category vessels. Green-
stick gear can currently be used with more than two hooks by Atlantic 
Tunas Longline permitted vessels under current target catch and gear 
(i.e., circle hook) requirements. Alternative A4 would distinguish 
green-stick gear from longline gear thus allowing green-stick gear to 
be fished in PLL and BLL closed areas if existing regulations for 
removal of PLL and BLL gear are met. These regulations state that a 
vessel is considered to have PLL gear onboard when it has onboard a 
power-operated longline hauler, a mainline, floats capable of 
supporting the mainline, and leaders (gangions) with hooks. Likewise, a 
vessel is considered to have BLL gear onboard when it has onboard a 
power-operated longline hauler, a mainline, weights and/or anchors 
capable of maintaining contact between the mainline and the ocean 
bottom, and leader (gangions) with hooks. For closed areas respective 
to both PLL and BLL gear, removal of any one of these elements 
constitutes removal of the PLL or BLL gear. Atlantic Tunas Longline 
permitted vessels would continue to be subject to current HMS PLL or 
BLL regulations, whichever is applicable, including the closed areas 
and circle hook requirements, except that up to 20 J-hooks would be 
allowed onboard if green-stick gear is also onboard. The J-hooks would 
only be allowed for use with green-stick gear. This provision to allow 
up to 20 J-hooks is intended to facilitate the high speed trolling 
methods used when fishing with green-stick gear. Current requirements 
to use only circle hooks on PLL gear would remain unchanged.
    Alternative A4 is expected to have positive social and economic 
impacts particularly for longline fishermen. Public and HMS AP member 
support has been expressed for this alternative as described above. 
Authorization of green-stick for harvest of Atlantic tunas would allow 
Atlantic Tunas Longline category permit holders additional

[[Page 24933]]

opportunities for harvest. Economic benefits may be realized in similar 
fashion to Alternatives A2 and A3 above through increased need for fish 
processing and the sale of additional fishing gear and supplies. The 
economic benefits for fishing communities as a whole may be minimal, 
however, as green-stick gear has been and continues to be used in U.S. 
Atlantic tuna fisheries. Vessel outfitting costs are similar to those 
described in A2 above.
    Alternative B1 would maintain the status quo regarding harpoon use 
in the Atlantic tuna fisheries. The authorized gears for Atlantic tunas 
fishing by HMS CHB permitted vessels would remain the same. Harpoon use 
is currently authorized only for vessels permitted in the Atlantic 
Tunas General and Harpoon categories. Harpoon gear is selective gear 
that is used to capture only one large pelagic fish (primarily BFT, but 
also swordfish) at a time. Bycatch and bycatch mortality of commercial 
handgear is considered to be low, particularly for harpoons, which are 
thrown individually at a fish, determined by the fisherman to be 
greater than the minimum commercial size. There is no information or 
evidence of interactions between harpoon users targeting Atlantic tunas 
and threatened or endangered sea turtles, marine mammals, or other 
protected resources. There were 3,901 HMS CHB permitted vessels as of 
November 30, 2007. Focusing on the area where NMFS anticipates that 
harpoon gear would be used on HMS CHBs to capture a BFT, there were 91 
HMS CHB permitted vessels in Maine, 53 in New Hampshire, 644 in 
Massachusetts, and 159 in Rhode Island. Under Alternative B1, NMFS 
anticipates neutral impacts on permitted HMS vessels, which could 
continue to fish under the Atlantic Tunas General and Angling category 
regulations using existing authorized gear. Total Atlantic Tunas 
General category revenues, which included sale of commercial-sized BFT 
by HMS CHBs, for the 2006 fishing year were approximately $2.6 million. 
Atlantic Tunas General category revenues for 2005 and 2004 were 
approximately $3.8 million and $5.4 million, respectively (in nominal 
dollars). Atlantic Tunas General category fishing year quotas, adjusted 
as necessary for underharvest, have not been met since 2004, when 
landings amounted to 96 percent of the quota. Atlantic Tunas General 
category landings, as a percentage of adjusted General category quota, 
were 33 percent (234 mt out of 707.3 mt) for 2005, 14 percent for 2006 
(165 mt out of 1,163.3 mt), and 19 percent for 2007 (121 mt out of 
643.6 mt).
    Alternative B2 would authorize harpoon gear for the commercial 
harvest of Atlantic tunas, including BFT, for HMS CHB permitted 
vessels. While fishing under the rules that apply when filling the 
Atlantic Tunas General category BFT retention limit, HMS CHB vessels 
would be able to use harpoon gear to fish for and retain BFT greater 
than 73 inches curved fork length. HMS CHBs may currently fish under 
the Atlantic Tunas General category regulations and may fill the daily 
retention limit for either the Atlantic Tunas General or the HMS 
Angling category. Available vessel trip report data indicate that, for 
Atlantic tunas fishing, harpoon gear is only used to target BFT. This 
alternative would not change the number or size of BFT allowed to be 
retained on an HMS CHB vessel, but would provide HMS CHB fishermen the 
opportunity to use harpoon gear in filling the Atlantic Tunas General 
category daily retention limit. Sub-alternative B2a would allow harpoon 
gear use on all types of CHB trips.
    Sub-alternative B2b is the preferred alternative and would limit 
harpoon use to non-for-hire trips. It is NMFS' understanding that, due 
to safety and liability concerns, only vessel captain and crew would be 
involved in harpoon fishing, (i.e., no other passengers would be 
offered the opportunity to use the gear). Under this preferred 
alternative, there would be no incentive to harpoon a recreational 
sized fish (27 inches (69 cm)to less than 73 inches (185 cm)) to fill 
the Angling category retention limit (to satisfy expectations of 
individuals chartering the vessel). With effort focused on commercial-
sized BFT, bycatch of undersized fish and associated fish mortality is 
expected to be minimal, particularly as the size of BFT targeted by 
for-hire CHB vessels fall within the school and large school BFT size 
classes, i.e., 27-59 inches (69-150 cm).
    The Atlantic Tunas General category quota and overall U.S. TAC are 
designed to allow for BFT rebuilding, and the Atlantic Tunas General 
category retention limit is specified to allow fishing opportunities 
over the duration of the Atlantic Tunas General category season and in 
all areas, without exceeding the Atlantic Tunas General category quota. 
This action is not expected to result in an expanded geographic area of 
harpoon use for BFT, which has historically been off New England, and 
primarily on the fishing grounds off Massachusetts, New Hampshire, and 
Maine. Therefore, authorization of harpoon gear in the HMS CHB category 
is not expected to have ecological impacts beyond those previously 
analyzed in the Consolidated HMS FMP and in the 2007 Fishing Year 
Atlantic BFT Quota Specifications and Effort Controls Environmental 
Assessment.
    Alternative B2, the preferred alternative, would have positive 
social and economic impacts, specifically for those vessels that have 
success harpooning BFT that may be available at the water's surface. To 
the extent that a fisherman could harpoon BFT when the fish are present 
at the water surface, Alternative B2 could increase the potential of 
filling the Atlantic Tunas General category daily retention limit and 
of gaining more ex-vessel revenue per trip. NMFS anticipates that the 
number of BFT that would be caught with harpoon gear by HMS CHBs is 
low. Alternative B2 may have slightly negative social and economic 
impacts for existing HMS CHB operators due to the potential for 
Atlantic Tunas General or Harpoon category permit holders to change to 
the HMS CHB category, potentially increasing competition in the HMS CHB 
sector and potentially resulting in lower profits for existing permit 
holders.
    Alternative C1, which is the status quo, would continue existing 
ecological benefits of the current requirements for possession and use 
of sea turtle bycatch mitigation equipment such as low post-release 
mortality of sea turtles and other bycatch species. Currently one type 
of sea turtle control device, the turtle tether, is recommended for 
possession and use, but is not required. Under the status quo, the 
benefit of better control of large sea turtles not boated and 
improvements in hook and fishing gear removal that would result in 
reduced PRM would not be fully realized, but NMFS is unable to quantify 
the number of sea turtle mortalities that might occur in the absence of 
this benefit.
    Under Alternative C1, there would be no social and economic 
impacts. Sea turtle bycatch mitigation gear is currently required in 
the PLL and BLL fisheries and sea turtle control devices are 
recommended, but not required. Any safety-at-sea benefit from improved 
control of large sea turtles not boated would not be fully realized 
with Alternative C1.
    Alternative C2, a preferred alternative, would require possession 
and use of a sea turtle control device as an addition to the already 
existing requirements for sea turtle bycatch mitigation gear. Social 
and economic impacts of Alternative C2 may be positive in that a 
safety-at-sea benefit from the use of sea turtle control

[[Page 24934]]

devices could be realized as fishermen using the gear can more easily 
control large sea turtles while fishing hooks and lines are being 
removed. Other social and economic impacts of Alternative C2 are 
expected to be minimal. It is unknown how many vessels currently follow 
the recommendation to possess and use sea turtle control devices. 
Production models of the turtle tether cost from $200-$250 and may be 
constructed according to the design specifications for $40-$70. 
Production models of the T&G ninja sticks may be purchased for $175 and 
may be constructed according to the design specifications for 
approximately $25-$85. It is difficult to determine the number of 
Atlantic HMS permitted vessels that use longline and would be affected 
by this requirement as users of longline gear may possess any one of 
three permits; however, not all holders of these permits use longline 
gear. To estimate the total cost of outfitting each vessel in the 
longline fleet with one sea turtle control device, NMFS totaled the 
number of Atlantic Tunas Longline, Shark Directed, or Shark Incidental 
permits, which produced an overestimate of the actual number of 
permitted vessels affected by the requirement. Based on the number of 
Atlantic Tunas Longline, Shark Directed, or Shark Incidental permitted 
vessels as of November 2007, it is estimated that the cost of 
outfitting the longline fleet with one turtle control device ranges 
from $18,575, if all permit holders construct the least expensive 
device, to $185,750, if all permit holders purchase the most expensive 
model produced.

Public Hearings

    The hearing dates and locations are:
    1. May 27, 2008, 6 - 8 p.m., National Marine Fisheries Service 
Southeast Regional Office, 263 13th Avenue South, Saint Petersburg, FL 
33701
    2. May 29, 2008, 7 - 9 p.m., Roanoke Island Festival Park, 1 
Festival Park, Manteo, NC 27954
    3. June 2, 2008, 6 - 8 p.m., Ocean County Library, Stafford Branch, 
129 N. Main Street, Manahawkin, NJ 08050
    4. June 4, 2008, 3:30 - 5:30 p.m., National Marine Fisheries 
Service Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 
01930
    5. June 4, 2008, 6 - 8 p.m., Plaquemines Parish Government 
Community Center, Belle Chasse Auditorium, 8398 Hwy. 23, Belle Chasse, 
LA 70037
    6. June 12, 2008, 7 - 9 p.m., Renaissance Orlando Hotel Airport, 
5445 Forbes Place, Orlando, FL 32812
    The hearing locations are physically accessible to people with 
disabilities. Requests for sign language interpretation or other 
auxiliary aids should be directed to Randy Blankinship at 727-824-5399, 
at least 7 days prior to the meeting.

List of Subjects

50 CFR Part 600

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

50 CFR Part 635

    Fish, Fisheries, Fishing, Fishing vessels, Reporting and 
recordkeeping, Management.

    Dated: April 30, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set out in the preamble, 50 CFR parts 600 and 635 are 
proposed to be amended as follows:

Chapter VI

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. 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.
    2. In Sec.  600.725, paragraph (v), under the heading ``IX. 
Secretary of Commerce,'' entries 1.I and 2 are revised and entry 1.M is 
added to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

 
 
 
Fishery                                        Authorized gear types
 
* * * * * * *                                  .........................
------------------------------------------------------------------------
IX. Secretary of Commerce
------------------------------------------------------------------------
1. Atlantic Highly Migratory Species           .........................
 Fisheries (FMP):
* * * * * * *                                  .........................
I. Tuna recreational fishery                   I. Speargun gear (for
                                                bigeye, albacore,
                                                yellowfin, and skipjack
                                                tunas only); Rod and
                                                reel, handline (all
                                                tunas); green-stick gear
                                                (HMS Charter/Headboat
                                                Category only).
* * * * * * *                                  .........................
M. Tuna green-stick fishery                    M. Green-stick gear.
2. Commercial Fisheries (Non-FMP)              Rod and reel, handline,
                                                longline, gillnet,
                                                harpoon, bandit gear,
                                                purse seine, green-stick
                                                gear.
------------------------------------------------------------------------
 

* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    3. 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.
    4. In Sec.  635.2, the definition for ``Green-stick'' is added in 
alphabetical order to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Green-stick means an actively trolled mainline attached to a vessel 
and elevated or suspended above the surface of the water with no more 
than 10 hooks or gangions attached to the mainline. The suspended line, 
attached gangions and/or hooks, and catch may be retrieved collectively 
by hand or mechanical means. Green-stick does not constitute a pelagic 
longline or a bottom longline as defined in this section or as 
described at Sec.  635.21(c) or Sec.  635.21(d), respectively.
    * * * * *
    5. In Sec.  635.21:
    a. Paragraphs (c)(2)(v)(A), (c)(2)(v)(B), (c)(2)(v)(D), 
(c)(2)(v)(G), (c)(5)(i) introductory text, (c)(5)(ii)(A), 
(c)(5)(ii)(C)(1), (e)(1)(ii), (e)(1)(iii), and (e)(1)(v) are revised.
    b. Paragraphs (c)(5)(i)(M), (c)(5)(iii)(C)(3), and (g) are added.
    The revisions and additions read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (c) * * *
    (2) * * *
    (v) * * *
    (A) The vessel is limited to possessing onboard and/or using only 
18/0 or larger circle hooks with an offset not to exceed 100. The outer 
diameter of the circle hook at its widest point must be no smaller than 
2.16 inches (55 mm) when measured with the eye on the hook on the 
vertical axis (y-axis) and perpendicular to the horizontal axis (x-
axis), and the distance between the circle hook point and the shank 
(i.e., the gap) must be no larger than 1.13 inches (28.8 mm). The 
allowable offset is measured from the barbed end of the hook and is 
relative to the parallel plane of the eyed-end, or shank, of the hook

[[Page 24935]]

when laid on its side. The only allowable offset circle hooks are those 
that are offset by the hook manufacturer. If green-stick gear, as 
defined at Sec.  635.2, is onboard, a vessel may posses up to 20 J-
hooks. J-hooks may be used only with green-stick gear, and no more than 
10 hooks may be used at one time with each green-stick gear; and,
    (B) The vessel is limited, at all times, to possessing onboard and/
or using only whole Atlantic mackerel and/or squid bait, except that 
artificial bait may be possessed and used only with green-stick gear, 
as defined at Sec.  635.2, if green-stick gear is onboard; and,
* * * * *
    (D) Required sea turtle bycatch mitigation gear, which NMFS has 
approved under paragraph (c)(5)(iv) of this section, on the list of 
``NMFS-Approved Models for Equipment Needed for the Careful Release of 
Sea Turtles Caught In Hook and Line Fisheries,'' must be carried 
onboard, and must be used in accordance with the handling requirements 
specified in paragraphs (c)(2)(v)(E) through (G) of this section; and,
* * * * *
    (G) Non-boated turtles. If a sea turtle is too large, or hooked in 
a manner that precludes safe boating without causing further damage or 
injury to the turtle, sea turtle bycatch mitigation gear, specified in 
paragraph (c)(2)(v)(D) of this section, must be used to disentangle sea 
turtles from fishing gear and disengage any hooks, or to clip the line 
and remove as much line as possible from a hook that cannot be removed, 
prior to releasing the turtle, in accordance with the protocols 
specified in paragraph (c)(2)(v)(C) of this section. Non-boated turtles 
should be brought close to the boat and provided with time to calm 
down. Then, it must be determined whether or not the hook can be 
removed without causing further injury. A front flipper or flippers of 
the turtle must be secured, if possible, with an approved turtle 
control device from the list specified in paragraph (c)(2)(v)(D) of 
this section. All externally embedded hooks must be removed, unless 
hook removal would result in further injury to the turtle. No attempt 
should be made to remove a hook if it has been swallowed, or if it is 
determined that removal would result in further injury. If the hook 
cannot be removed and/or if the animal is entangled, as much line as 
possible must be removed prior to release, using an approved line 
cutter from the list specified in paragraph (c)(2)(v)(D) of this 
section. If the hook can be removed, it must be removed using a long-
handled dehooker from the list specified in paragraph (c)(2)(v)(D) of 
this section. Without causing further injury, as much gear as possible 
must be removed from the turtle prior to its release. Refer to the 
careful release protocols and handling/release guidelines required in 
paragraph (c)(2)(v)(C) of this section, and the handling and 
resuscitation requirements specified in Sec.  223.206(d)(1) of this 
title, for additional information.
* * * * *
    (5) * * *
    (i) Possession and use of required mitigation gear. Required sea 
turtle bycatch mitigation gear, which NMFS has approved under paragraph 
(c)(5)(iv) of this section as meeting the minimum design standards 
specified in paragraphs (c)(5)(i)(A) through (c)(5)(i)(M) of this 
section, must be carried onboard, and must be used to disengage any 
hooked or entangled sea turtles in accordance with the handling 
requirements specified in paragraph (c)(5)(ii) of this section.
* * * * *
    (M) Turtle control devices. One turtle control device, as described 
in paragraph (c)(5)(i)(M)(1) or (2) of this section, is required 
onboard and must be used to secure a front flipper of the sea turtle so 
that the animal can be controlled at the side of the vessel. It is 
strongly recommended that a pair of turtle control devices be used to 
secure both front flippers when crew size and conditions allow. Minimum 
design standards consist of:
    (1) Turtle tether and extended reach handle. Approximately 15-20 
feet of 1/2-inch hard lay negative buoyance line is used to make an 
approximately 30-inch loop to slip over the flipper. The line is fed 
through a 3/4-inch fair lead, eyelet, or eyebolt at the working end of 
a pole and through a 3/4-inch eyelet or eyebolt in the midsection. A 1/
2-inch quick release cleat holds the line in place near the end of the 
pole. A final 3/4-inch eyelet or eyebolt should be positioned 
approximately 7-inches behind the cleat to secure the line, while 
allowing a safe working distance to avoid injury when releasing the 
line from the cleat. The line must be securely fastened to an extended 
reach handle or pole with a minimum length equal to, or greater than, 
150 percent of the freeboard, or a minimum of 6 feet (1.83 m), 
whichever is greater. There is no restriction on the type of material 
used to construct this handle, as long as it is sturdy. The handle must 
include a tag line to attach the tether to the vessel to prevent the 
turtle from breaking away with the tether still attached.
    (2) T&G ninja sticks and extended reach handles. Approximately 30-
35 feet of 1/2-inch to 5/8-inch soft lay polypropylene or nylon line or 
similar is fed through 2 PVC conduit, fiberglass, of similar sturdy 
poles and knotted using an overhand (recommended) knot at the end of 
both poles or otherwise secured. There should be approximately 18-24 
inches of exposed rope between the poles to be used as a working 
surface to capture and secure the flipper. Knot the line at the ends of 
both poles to prevent line slippage if they are not otherwise secured. 
The remaining line is used to tether the apparatus to the boat unless 
an additional tag line is used. Two lengths of sunlight resistant 3/4-
inch schedule 40 PVC electrical conduit, fiberglass, aluminum, or 
similar material should be used to construct the apparatus with a 
minimum length equal to, or greater than, 150 percent of the freeboard, 
or a minimum of 6 feet (1.83 m), whichever is greater.
    (ii) * * *
    (A) Sea turtle bycatch mitigation gear, as required by paragraphs 
(c)(5)(i)(A) through (D) of this section, must be used to disengage any 
hooked or entangled sea turtles that cannot be brought onboard. Sea 
turtle bycatch mitigation gear, as required by paragraphs (c)(5)(i)(E) 
through (M) of this section, must be used to facilitate access, safe 
handling, disentanglement, and hook removal or hook cutting of sea 
turtles that can be brought onboard, where feasible. Sea turtles must 
be handled, and bycatch mitigation gear must be used, in accordance 
with the careful release protocols and handling/release guidelines 
specified in paragraph (a)(3) of this section, and in accordance with 
the onboard handling and resuscitation requirements specified in Sec.  
223.206(d)(1)of this title.
* * * * *
    (C) * * *
    (1) Non-boated turtles should be brought close to the boat and 
provided with time to calm down. Then, it must be determined whether or 
not the hook can be removed without causing further injury. A front 
flipper or flippers of the turtle must be secured with an approved 
turtle control device from the list specified in paragraph (c)(2)(v)(D) 
of this section. All externally embedded hooks must be removed, unless 
hook removal would result in further injury to the turtle. No attempt 
should be made to remove a hook if it has been swallowed, or if it is 
determined that removal would result in further injury. If the hook 
cannot be removed and/or if the animal is entangled, as much line as

[[Page 24936]]

possible must be removed prior to release, using a line cutter as 
required by paragraph (c)(5)(i) of this section. If the hook can be 
removed, it must be removed using a long-handled dehooker as required 
by paragraph (c)(5)(i) of this section. Without causing further injury, 
as much gear as possible must be removed from the turtle prior to its 
release. Refer to the careful release protocols and handling/release 
guidelines required in paragraph (a)(3) of this section, and the 
handling and resuscitation requirements specified in Sec.  
223.206(d)(1) of this title for additional information.
* * * * *
    (iii) * * *
    (C) * * *
    (3) If green-stick gear, as defined at Sec.  635.2, is onboard, a 
vessel may possess up to 20 J-hooks. J-hooks may be used only with 
green-stick gear, and no more than 10 hooks may be used at one time 
with each green-stick gear. If green-stick gear is onboard, artificial 
bait may be possessed, but used only with green-stick gear.
* * * * *
    (e) * * *
    (1) * * *
    (ii) Charter/Headboat. Rod and reel (including downriggers), bandit 
gear, handline, and green-stick gear are authorized for all 
recreational and commercial Atlantic tuna fisheries. Harpoon gear is 
authorized for commercial Atlantic tuna fisheries on non-for-hire trips 
only. Speargun is authorized for recreational Atlantic BAYS tuna 
fisheries only.
    (iii) General. Rod and reel (including downriggers), handline, 
harpoon, bandit gear, and green-stick.
* * * * *
    (V) Longline. Longline and green-stick.
* * * * *
    (g) Green-stick gear. Green-stick gear may only be utilized when 
fishing from vessels issued a valid Atlantic Tunas General, HMS 
Charter/Headboat, or Atlantic Tunas Longline category permit. The gear 
must be attached to the vessel, actively trolled with the mainline at 
or above the water's surface, and may not be deployed with more than 10 
hooks or gangions attached.
    6. In Sec.  635.71, paragraph (a)(23) is revised to read as 
follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (23) Fail to comply with the restrictions on use of pelagic 
longline, bottom longline, gillnet, buoy gear, speargun gear, green-
stick gear, or harpoon gear as specified in Sec.  635.21(c), (d), 
(e)(1), (e)(3), (e)(4), (f), or (g).
* * * * *
[FR Doc. E8-9888 Filed 5-5-08; 8:45 am]
BILLING CODE 3510-22-S