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• 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

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 [Federal Register: October 2, 2006 (Volume 71, Number 190)]
[Rules and Regulations]
[Page 58107-58156]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc06-11]
 
[[pp. 58107-58156]]
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

[[Continued from page 58106]]

[[Page 58107]]

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

[[Page 58108]]

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

[[Page 58109]]

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

[[Page 58110]]

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

[[Page 58111]]

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

[[Page 58112]]

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

[[Page 58113]]

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

[[Page 58114]]

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

[[Page 58115]]

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

[[Page 58116]]

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

[[Page 58117]]

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

[[Page 58118]]

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

[[Page 58119]]

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

[[Page 58120]]

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

[[Page 58121]]

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

[[Page 58122]]

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

[[Page 58123]]

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

[[Page 58124]]

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

[[Page 58125]]

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

[[Page 58126]]

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

[[Page 58127]]

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

[[Page 58128]]

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

[[Page 58129]]

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

Essential Fish Habitat (EFH)

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

[[Page 58130]]

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

[[Page 58131]]

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

[[Page 58132]]

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

Economic and Social Impacts

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

[[Page 58133]]

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

Consolidation of the FMPs

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

[[Page 58134]]

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

[[Page 58135]]

ensure a balanced representation of all interested sectors and regions.

Objectives of the FMP

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

[[Page 58136]]

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

Comment Period/Outreach

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

General

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

[[Page 58137]]

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

[[Page 58138]]

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

[[Page 58139]]

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

[[Page 58140]]

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

[[Page 58141]]

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

[[Page 58142]]

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

[[Page 58143]]

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

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

[[Page 58145]]

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

[[Page 58146]]

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

[[Page 58147]]

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

[[Page 58148]]

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

[[Page 58149]]

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

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

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

[[Page 58150]]

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

[[Page 58151]]

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

[[Page 58152]]

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

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

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

[[Page 58153]]

marlin, leatherback and other sea turtles, and pelagic shark discards, 
BFT discards, yellowfin tuna discards, and BAYS tuna discards. However, 
the analysis also predicted an increase in bycatch of blue marlin, 
sailfish, spearfish, and large coastal sharks.
    This alternative based on the petition would potentially impact a 
total of 75 vessels that fished in the area from 2001 - 2003. Without 
redistribution of effort, this alternative would potentially result in 
a 13.4 percent decrease in fishing effort, and reductions in landings 
ranging from a minimum of 9.9 percent for incidentally-caught BFT 
(kept) to a maximum 27.0 percent for bigeye tuna. The total loss in 
revenue for this alternative, assuming no redistribution of effort, 
would be approximately $3,136,229 annually, or $49,003 per vessel 
annually. With redistribution of fishing effort, the alternative was 
predicted to result in a decrease in bluefin and yellowfin tuna 
landings of 18.3 and 11.0 percent, respectively, for estimated losses 
of approximately $166,040 and $1,382,042 annually. However, overall 
there could have been a net gain in revenues for this alternative with 
redistribution of effort of approximately $1,651,023 annually, or 
$25,797 per vessel annually. The actual ecological and economic impacts 
of the alternative would likely be in between no redistribution of 
effort and the full redistribution of effort model. As described in the 
Final HMS FMP and in the response to Comment 26 of the time/area 
section, NMFS also evaluated additional scenarios between these base 
scenarios when some movement is expected into a particular area (i.e., 
instead of being uniformly distributed to all open areas), depending on 
the spatial and temporal duration of the closure. For this particular 
alternative for the petition, in addition to the base scenarios, NMFS 
also evaluated the movement of fishing effort to other open areas in 
the Gulf of Mexico and to a specific area in the Atlantic Ocean. Due to 
the potential negative ecological impacts, negative economic impacts, 
and the increase in bycatch and discards based on the different 
redistribution of effort scenarios, NMFS is not selecting this 
alternative at this time.
    In addition to the variability of impacts across species, all of 
the analyses, including those for the petition for rulemaking, were 
conducted using J-hook data. New circle hook management measures were 
put into place in 2004, and NMFS is still assessing the effects of 
circle hooks on bycatch rates for HMS. Until NMFS can better evaluate 
the effects of circle hooks on bycatch reduction, especially with 
regard to sea turtle interactions and bycatch of other non-target HMS, 
NMFS chooses, at this time, not to modify the current time/area 
closures. NMFS intends to reconsider modifications to existing closures 
once further analyses of circle hook data and the results of the stock 
assessments for blue marlin, white marlin, north and south swordfish, 
and eastern and western BFT become available. Pending the results of 
the marlin, swordfish, and BFT stock assessments, the criteria could 
allow for additional closures or modifications of existing closures to 
be considered for all HMS fisheries, including those to reduce the 
incidental takes of BFT.
    Although NMFS is not selecting this alternative based on the 
petition at this time, NMFS will pursue alternatives to reduce bycatch 
in the Gulf of Mexico, especially for spawning BFT. NMFS has currently 
adopted all of the ICCAT recommendations regarding BFT, a rebuilding 
plan is in place domestically for this species, and NMFS has 
implemented measures to rebuild this overfished stock. NMFS is 
currently assessing different protections for different ages of BFT and 
how such protection will affect the BFT stock as a whole. For instance, 
how will protecting spawning BFT in the Gulf of Mexico help rebuild the 
stock if it results in increased discards of juvenile and sub-adult BFT 
along the U.S. east coast? NMFS needs more information to further 
understand how to manage this species given its complex migratory 
patterns, life history, and age structure. NMFS is also considering 
developing incentives that would dissuade fishermen from keeping 
incidentally caught BFT, particularly spawning BFT, in the Gulf of 
Mexico. This may involve research on how changes in fishing practices 
may help reduce bycatch of non-target species as well as the tracking 
of discards (dead and alive) by all gear types. In addition, NMFS is 
also considering the effects of sea surface temperatures in the Gulf of 
Mexico and its association with congregations of BFT and putative BFT 
spawning grounds in the Gulf of Mexico (Block, pers. comm.). NMFS 
intends to investigate the variability associated with sea surface 
temperatures as well as the temporal and spatial consistency of the 
association with these temperature regimes. By better understanding 
what influences the distribution and timing of BFT in the Gulf of 
Mexico, NMFS can work on developing tailored management measures over 
space and time to maximize ecological benefits while minimizing 
economic impacts, to the extent practicable.

Classification

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

[[Page 58154]]

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

A Summary of the Final Regulatory Flexibility Analysis

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

Statement of the Need for and Objectives of the Final Rule

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

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

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

[[Page 58155]]

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

[[Page 58156]]

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

[[Continued on page 58157]] 

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