Contact Us Search: All EPA This Area

• You are here: EPA Home
• Federal Register
• FR Years
• FR Months
• FR Days
• FR Documents
• Atlantic Highly Migratory Species; Recreational Atlantic Blue and White Marlin Landings Limit; Amendments to the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks and the Fishery Management Plan for Atlantic Billfish

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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

---

 [Federal Register: October 2, 2006 (Volume 71, Number 190)]
[Rules and Regulations]
[Page 58057-58106]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc06-10]
[[Page 58058]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 300, 600, and 635
[Docket No. 030908222-6241-02; I.D. 051603C]
RIN 0648-AQ65
 
Atlantic Highly Migratory Species; Recreational Atlantic Blue and 
White Marlin Landings Limit; Amendments to the Fishery Management Plan 
for Atlantic Tunas, Swordfish, and Sharks and the Fishery Management 
Plan for Atlantic Billfish

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; decision on petition for rulemaking.

-----------------------------------------------------------------------

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

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

ADDRESSES: Copies of the Final Consolidated HMS FMP and other relevant 
documents are available from the Highly Migratory Species Management 
Division website at http://www.nmfs.noaa.gov/sfa/hms or by contacting Karyl 
Brewster-Geisz at 301-713-2347.

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

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic HMS fisheries are managed under the dual authority of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and the Atlantic Tunas Convention Act (ATCA). The Final 
Consolidated HMS FMP is implemented by regulations at 50 CFR part 635.
    NMFS announced its intent to prepare an Environmental Impact 
Statement (EIS) amending the the Atlantic Billfish FMP and FMP for 
Atlantic Tunas, Swordfish, and Sharks on July 9, 2003 (68 FR 40907). On 
April 30, 2004 (69 FR 23730), NMFS announced the availability of an 
Issues and Options Paper and nine scoping meetings. On May 26, 2004 (69 
FR 29927), NMFS extended the comment period on the Issues and Options 
Paper, and announced an additional scoping meeting. A summary of the 
major comments received during scoping was released in December 2004 
and is available on the HMS Management Division website or by 
requesting a hard copy (see ADDRESSES). During scoping, NMFS referred 
to this project as Amendment 2 to the existing FMPs. Starting with the 
Predraft stage, NMFS has referred to this project as the Draft 
Consolidated HMS FMP.
    In February 2005, NMFS released the combined Predraft to the 
Consolidated HMS FMP and annual Stock Assessment and Fishery Evaluation 
(SAFE) Report. Comments received on both the Issues and Options Paper 
and the Predraft were considered when drafting and analyzing the 
ecological, economic, and social impacts of the alternatives in the 
proposed rule. A summary of the comments received on the Predraft was 
released in June 2005 and is available on the HMS Management Division 
website or by requesting a hard copy (see ADDRESSES).
    On August 19, 2005, NMFS published the proposed rule (70 FR 48804), 
and the Environmental Protection Agency (EPA) published the Notice of 
Availability (NOA) for the Draft Environmental Impact Statement (DEIS) 
and the accompanying Draft Consolidated HMS FMP (70 FR 48705). The 60-
day comment period on the proposed rule was initially open until 
October 18, 2005. However, because many of NMFS' constituents were 
adversely affected by Hurricanes Katrina and Rita in 2005, and the 
resultant cancellation of three public hearings in the Gulf of Mexico 
region, NMFS extended the comment period on the proposed rule until 
March 1, 2006 (70 FR 58177, October 5, 2005) for a total of 194 days. 
During that time, NMFS held 24 public hearings, gave presentations at 
the five Atlantic Regional Fishery Management Councils and at the Gulf 
and Atlantic States Marine Fisheries Commissions, and received several 
thousand written comments. These comments are summarized below under 
Response to Comments.
    In the proposed rule, NMFS also took additional actions 
including:(1) a withdrawal of the 2003 proposed rule to implement the 
International Commission for the Conservation of Atlantic Tunas (ICCAT) 
250 recreationally caught marlin landings limit (September 17, 2003; 68 
FR 54410); (2) a decision not to include in the Draft Consolidated HMS 
FMP the exemption to the ``no sale'' provision for the artisanal 
handline fishery in Puerto Rico, as outlined in the 1988 Billfish FMP; 
and (3) an analysis of a petition for rulemaking from Blue Ocean 
Institute et al. that requested NMFS close a particular BFT spawning 
area in the Gulf of Mexico (copies of the petition are available upon 
request, see ADDRESSES). Item 1 above was completed at the proposed 
rule stage. Item 2 is finalized in this final rule with the 
consolidation of the two FMPs, and is not discussed further. The 
decision regarding the petition for rulemaking (item 3) is described in 
this final rule after the changes to proposed rule section.
    This final rule does not contain information regarding the 
management history of Atlantic HMS, EFH, or the alternatives 
considered. Those issues are discussed in the proposed rule and are not 
repeated here. This final rule does contain responses to comments 
received during the public comment period, a description of changes to 
the proposed rule, and a decision regarding a petition to rulemaking. 
The response to comments section is organized similarly to the 
organization of the Final HMS FMP and the proposed rule. The 
description of the changes to the

[[Page 58059]]

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

Response to Comments

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

Bycatch Reduction

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

[[Page 58060]]

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

[[Page 58061]]

safe handling, release, and identification workshops, to the extent 
practicable, these workshops will be open to individuals interested in 
receiving the certification.
    Comment 7: NMFS received comments in support of training fishermen 
in the proper release of prohibited species and billfish, as well as 
protected species. These comments include: NMFS should include safe 
release training for sharks and billfishes in these workshops; these 
workshops should be referred to as ``Careful Handling and Release 
Workshops,'' rather than protected species workshops because the 
workshops are appropriate for many species; and, the scope of the protected 
species workshops should be expanded to include prohibited species.
    Response: NMFS agrees that safe handling, release, and 
identification training may be beneficial to all participants in HMS 
fisheries, including those that interact with sharks and billfishes. 
The need for protected species safe handling, release, and 
identification workshops stems from two BiOps issued for the commercial 
shark fishery and the pelagic longline fishery. These two BiOps also 
require outreach to the commercial fisheries employing PLL, BLL, and 
shark gillnet gear on the proper safe handling, release, and 
identification of protected species. To comply with these BiOps, the 
intent of these workshops is to reduce the post-release mortality of 
sea turtles that are most frequently caught by participants using BLL 
or gillnet gear to target sharks or PLL gear to target swordfish and 
tunas. However, the techniques, equipment, and protocols taught at the 
workshops, although specific to sea turtles, could be used to safely 
disengage hooks in other fish, such as billfish and sharks, and/or 
mammals that may be encountered. As NMFS collects additional data 
regarding the best methods to use to release billfish and other 
species, NMFS may consider modifying the existing workshops to include 
information on releasing these other species. Until that time, use of 
the dehooking equipment and protocols could be employed to safely 
dehook and release billfish and other non-target species. This use 
could increase post-release survival rates of non-target species. While 
workshop attendance and certification would not be mandatory for 
recreational fishermen, these individuals are welcome to attend 
voluntarily any of the workshops on safe handling, release, and 
identification to become more familiar with these techniques and protocols.
    Comment 8: NMFS received comments on grandfathering individuals who 
attended the industry certified workshops held in Orlando, Florida and 
New Orleans, Louisiana. Those comments include: the industry should be 
recognized for holding workshops before NMFS finalized mandatory 
workshops; the three-year clock should start ticking on January 1, 
2007, for those who are grandfathered in, not from when they took the 
workshop; certification should be given to fishermen and owners who 
attended previously held workshops; 85 percent of pelagic longline 
fishermen were trained and industry certified in 2005. The industry was 
supportive and actively engaged. These workshops should serve as a 
template for the future workshops; if the industry-certified sea turtle 
handlers who have already attended and passed the industry mandatory 
certification classes are required to do something, it should be an 
online review and should not have to lose additional time at sea and 
incur additional travel expenses; and, the process should be 
streamlined for these individuals to receive their initial certification.
    Response: NMFS agrees that industry should be recognized for 
holding voluntary workshops before NMFS finalized the Consolidated HMS 
FMP. As such, all owners and operators that, as documented by workshop 
facilitators, attended and successfully completed industry 
certification workshops held on April 8, 2005, in Orlando, FL, and on 
June 27, 2005, in New Orleans, LA, will automatically receive valid 
protected species workshop certificates prior to January 1, 2007. The 
certification must be renewed prior to the expiration date printed on 
the workshop certificate and will need to be renewed prior to renewing 
their HMS permit. Generally, the certificate will expire every three 
years consistent with the expiration date of the permit. However, if 
the certificate is received during a month that is not the owner's or 
operator's birth month, the certificate may expire in slightly less or 
slightly more than three years. For example, if the person's birth 
month is June and they receive the certificate in March, the 
certificate would be valid for slightly more than three years from the 
date of completion of the workshop. Those who participated in the 
industry-sponsored workshops will have three years from their permit 
renewal in 2007 to renew their workshop certification. Should new 
information or protocols become available prior to re-certification of 
any owner or operator, NMFS will disseminate the new information or 
protocols to the certified individuals prior to their next workshop.
    Comment 9: NMFS received several comments requesting careful 
consideration when scheduling the workshops. Comments include: the 
lunar cycles should be considered when scheduling the workshops; 
workshops during closed season can still inconvenience people because 
shark fishermen also fish for wahoo, dolphin, etc.; NMFS needs to be 
cognizant of the time burden involved for fishermen; the mandatory 
workshops should be held only for critical issues because fishermen 
must be out fishing to be profitable; and, there needs to be 
flexibility in the process because not everyone will be able to attend 
the workshops.
    Response: To the extent practicable, NMFS will consider lunar 
cycles and their resultant impacts on the availability of HMS 
participants when scheduling protected species safe handling, release, 
and identification workshops. However, since the Agency does not know 
the other fisheries in which fishermen may be participating at all 
times, the Agency cannot guarantee that each workshop will be held at a 
time that would minimize lost fishing opportunities. These workshops 
will be held in areas with high concentrations of permit holders, 
according to the addresses provided when applying for an HMS permit. 
The workshop schedule will be available in advance to allow fishermen 
to attend a workshop that is most convenient to them. The Agency may 
provide an opportunity for the industry to schedule one-on-one training 
at the expense of the individual (i.e., trainer fees), if they are 
unable to attend any of the previously scheduled workshops.
    Comment 10: Some identification training should be provided to the 
owners and operators during the release and disentanglement workshops.
    Response: Species identification is vital for determining how best 
to handle a de-hooking event, and also enhances the amount and quality 
of data available regarding protected species interactions. Accurate 
species identification is also important for compliance with HMS 
fishery regulations, including the avoidance of prohibited species, 
maintaining quota limits, and accurate data collection. NMFS intends to 
make education a key component of the workshops, and will provide 
workshop participants with training to safely disentangle, resuscitate, 
and release sea turtles, as well as identify and release other 
protected species such as marine mammals and smalltooth sawfish. Sea 
turtle identification guides are also

[[Page 58062]]

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

[[Page 58063]]

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

[[Page 58064]]

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

[[Page 58065]]

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

[[Page 58066]]

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

[[Page 58067]]

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

[[Page 58068]]

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

[[Page 58069]]

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

[[Page 58070]]

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

[[Page 58071]]

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

[[Page 58072]]

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

[[Page 58073]]

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

[[Page 58074]]

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

[[Page 58075]]

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

[[Page 58076]]

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

[[Page 58077]]

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

[[Page 58078]]

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

[[Page 58079]]

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

[[Page 58080]]

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

[[Page 58081]]

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

[[Page 58082]]

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

Rebuilding and Preventing Overfishing

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

[[Page 58083]]

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

[[Page 58084]]

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

[[Page 58085]]

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

[[Page 58086]]

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

[[Page 58087]]

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

[[Page 58088]]

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

[[Page 58089]]

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

[[Page 58090]]

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

[[Page 58091]]

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

[[Page 58092]]

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

[[Page 58093]]

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

[[Page 58094]]

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

[[Page 58095]]

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

[[Page 58096]]

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

[[Page 58097]]

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

[[Page 58098]]

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

[[Page 58099]]

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

[[Page 58100]]

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

[[Page 58101]]

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

[[Page 58102]]

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

[[Page 58103]]

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

[[Page 58104]]

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

[[Page 58105]]

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

Management Program Structure

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

[[Page 58106]]

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

[[Continued on page 58107]] 

Local Navigation

• FR Home
• About the Site
• FR Listserv
• FR Search
• Selected Electronic Dockets
• Regulatory Agenda
• Executive Orders
• Current Laws and Regulations

• EPA Home
• Privacy and Security Notice
• Contact Us