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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300, 600, and 635

[Docket No. 030908222-6241-02; I.D. 051603C]

RIN 0648-AQ65

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

AGENCY:

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

ACTION:

Final rule; decision on petition for rulemaking.

SUMMARY:

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

DATES:

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

ADDRESSES:

Copies of the Final Consolidated HMS FMP and other relevant documents are available from the Highly Migratory Species Management Division website at

www.nmfs.noaa.gov/sfa/hms

or by contacting Karyl Brewster-Geisz at 301-713-2347.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

The Atlantic HMS fisheries are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). The Final Consolidated HMS FMP is implemented by regulations at 50 CFR part 635.

NMFS announced its intent to prepare an Environmental Impact Statement (EIS) amending the the Atlantic Billfish FMP and FMP for Atlantic Tunas, Swordfish, and Sharks on July 9, 2003 (68 FR 40907). On April 30, 2004 (69 FR 23730), NMFS announced the availability of an Issues and Options Paper and nine scoping meetings. On May 26, 2004 (69 FR 29927), NMFS extended the comment period on the Issues and Options Paper, and announced an additional scoping meeting. A summary of the major comments received during scoping was released in December 2004 and is available on the HMS Management Division website or by requesting a hard copy (see

ADDRESSES

). During scoping, NMFS referred to this project as Amendment 2 to the existing FMPs. Starting with the Predraft stage, NMFS has referred to this project as the Draft Consolidated HMS FMP.

In February 2005, NMFS released the combined Predraft to the Consolidated HMS FMP and annual Stock Assessment and Fishery Evaluation (SAFE) Report. Comments received on both the Issues and Options Paper and the Predraft were considered when drafting and analyzing the ecological, economic, and social impacts of the alternatives in the proposed rule. A summary of the comments received on the Predraft was released in June 2005 and is available on the HMS Management Division website or by requesting a hard copy (see

ADDRESSES

).

On August 19, 2005, NMFS published the proposed rule (70 FR 48804), and the Environmental Protection Agency (EPA) published the Notice of Availability (NOA) for the Draft Environmental Impact Statement (DEIS) and the accompanying Draft Consolidated HMS FMP (70 FR 48705). The 60-day comment period on the proposed rule was initially open until October 18, 2005. However, because many of NMFS' constituents were adversely affected by Hurricanes Katrina and Rita in 2005, and the resultant cancellation of three public hearings in the Gulf of Mexico region, NMFS extended the comment period on the proposed rule until March 1, 2006 (70 FR 58177, October 5, 2005) for a total of 194 days. During that time, NMFS held 24 public hearings, gave presentations at the five Atlantic Regional Fishery Management Councils and at the Gulf and Atlantic States Marine Fisheries Commissions, and received several thousand written comments. These comments are summarized below under Response to Comments.

In the proposed rule, NMFS also took additional actions including:(1) a withdrawal of the 2003 proposed rule to implement the International Commission for the Conservation of Atlantic Tunas (ICCAT) 250 recreationally caught marlin landings limit (September 17, 2003; 68 FR 54410); (2) a decision not to include in the Draft Consolidated HMS FMP the exemption to the “no sale” provision for the artisanal handline fishery in Puerto Rico, as outlined in the 1988 Billfish FMP; and (3) an analysis of a petition for rulemaking from Blue Ocean Institute et al. that requested NMFS close a particular BFT spawning area in the Gulf of Mexico (copies of the petition are available upon request, see

ADDRESSES

). Item 1 above was completed at the proposed rule stage. Item 2 is finalized in this final rule with the consolidation of the two FMPs, and is not discussed further. The decision regarding the petition for rulemaking (item 3) is described in this final rule after the changes to proposed rule section.

This final rule does not contain information regarding the management history of Atlantic HMS, EFH, or the alternatives considered. Those issues are discussed in the proposed rule and are not repeated here. This final rule does contain responses to comments received during the public comment period, a description of changes to the proposed rule, and a decision regarding a petition to rulemaking. The response to comments section is organized similarly to the organization of the Final HMS FMP and the proposed rule. The description of the changes to the

proposed rule can be found after the response to comment section. The decision regarding the petition for rulemaking can be found after the changes to the proposed rule section.

Information regarding the management history of Atlantic HMS, EFH, and the alternatives considered was provided in the preamble of the proposed rule and is not repeated here. Additional information can be found in the Final Consolidated HMS FMP available from NMFS (see

ADDRESSES

).

Most of the measures in this rule, such as the measures relating to time/area closures, BFT, authorized fishing gears, and regulatory housekeeping, will be effective on November 1, 2006. However, the workshop alternatives (§ 635.8) will be effective on January 1, 2007, in order to coordinate the workshop requirements with the fishing vessel and dealer renewal timeframes. The management measures related to the directed billfish fishery (e.g., use of circle hooks in billfish tournaments) will also be effective on January 1, 2007, in order to allow anglers and small entities time to adjust to the new requirements. Furthermore, as a result of this final rule, all of the HMS management programs will be implemented on a calendar year cycle (January 1 to December 31). The Atlantic shark management timeframe will maintain the status quo, whereas billfish, tunas, and swordfish will shift from a fishing year (June 1 - May 31) to a calendar year at different times in 2007. Atlantic billfish will shift to a calendar year on January 1, 2007. Tunas and swordfish will shift to a calendar year on January 1, 2008. To transition from a fishing year to a calendar year for tunas and swordfish, NMFS will establish an abbreviated 2007 fishing year via a separate action for BFT and swordfish to cover the months between the end of the 2006 fishing year (May 31, 2007) and the start of the new 2008 calendar year (January 1, 2008).

Response to Comments

A large number of individuals and groups provided both written and verbal comments during the public comment period. The comments are summarized below together with NMFS's responses. All of the comments are grouped together in a format similar to that utilized in the preamble of the proposed rule. There are nine major groupings: Bycatch Reduction; Rebuilding and Preventing Overfishing; Management Program Structure; Essential Fish Habitat (EFH) Update; Economic and Social Impacts; Consolidation of the FMPs; Objectives of the FMP; Comment Period/Outreach; and General.

Within many of these major groupings are several separate subheadings. The comments are numbered consecutively, starting with 1, at the beginning of each of these separate subheadings. The subheadings under “Bycatch Reduction” are: (A) Workshops; and, (B) Time/Area Closures. The subheadings under “Rebuilding and Preventing Overfishing” are: (A) Northern Albacore Tuna; (B) Finetooth Sharks; and, (C) Atlantic Billfish. The subheadings under “Management Program Structure” include: (A) Bluefin Tuna Quota Management; (B) Timeframe for Annual Management of HMS Fisheries; (C) Authorized Fishing Gears; and, (D) Regulatory Housekeeping Measures. There are no separate subheadings under the major groupings entitled “EFH Update”; “Economic and Social Impacts”; “Consolidation of the FMPs”; “Objectives of the FMP”; and, “Comment Period/Outreach.”

All of the comments in the major grouping entitled “General” are numbered consecutively, beginning with 1, however the grouping is further divided into subsections that address general comments related to recreational HMS fishing; commercial HMS fishing; longlines; swordfish; tunas; sharks; fishing mortality and bycatch reduction; permitting, reporting and monitoring; enforcement; and ICCAT.

Bycatch Reduction

A. Workshops

Comment 1:

NMFS should have workshops for the recreational fishing industry explaining the use of circle hooks.

Response:

NMFS has conducted educational outreach efforts to promote the use of circle hooks in recreational fisheries in the past and will continue to do so in the future. NMFS has distributed information on circle hooks using informational pamphlets, and in person by attendance at billfish tournaments. This final rule will implement shark identification and careful release and disentanglement workshops as required by Endangered Species Act (ESA) Biological Opinions (BiOps). The Agency may consider hosting voluntary workshops to address the use of circle hooks in the recreational fishery and may provide additional information on circle hooks at billfish tournaments.

i. Protected Species Safe Handling, Release, and Identification Workshops for Pelagic Longline, Bottom Longline, and Gillnet Fishermen

Comment 2:

Post-release survival is important to any successful conservation management regime and sustainable fisheries. NMFS needs additional education and outreach workshops, as well as cooperative research initiatives, before significant reductions in post-release mortality can be achieved.

Response:

The protected species safe handling, release, and identification workshops are intended to reduce the mortality of sea turtles, smalltooth sawfish, and other protected resources and non-target species captured incidentally in the HMS pelagic and bottom longline and gillnet fisheries. These workshops are required to comply with the 2003 and 2004 ESA BiOps. Owners and operators of PLL, BLL, and gillnet vessels will receive instruction on techniques for disentanglement, resuscitation, release, and identification of protected resources and other non-target species. The goal of the workshops is to increase fishermen's proficiency with required release equipment and protocols to reduce the number of protected and non-target species mortalities. Through the Northeast Distant (NED) statistical area experiment, NMFS has shown that significant bycatch reductions can be achieved through proper research, education, and outreach. These workshops are intended to disseminate information learned from the NED experiment, as well as other information for the BLL and gillnet fisheries.

Comment 3:

Several comments supported mandatory protected species workshops for captains and owners. Some of those comments include: owners and captains should attend the workshops, but attendance should not be mandatory for the crew because it would not be feasible for crew members, who may not be U.S. citizens, to attend a workshop; owners' attendance would discourage hiring untrained captains who do not have the expertise to properly release sea turtles; support for mandatory training to reduce post-release mortality of longline-caught marine mammals and turtles; the GMFMC supports mandatory workshops for captains on pelagic longline vessels; getting their gear off the turtles should be all the incentive fishermen need; industry will benefit from attending these workshops because it will enable them to avoid further regulations; NMFS needs to comply with the BiOp to keep the fishery open; workshops are a good investment for the fishermen; and, EPA supports alternatives A2 and A3 requiring mandatory workshops on handling protected species captured or entangled in fishing gear for all HMS pelagic and bottom longline vessel owners (A2) and operators (A3). EPA

also supported preferred alternatives A5 (mandatory workshops/certification for shark gillnet vessel owners/operators).

Response:

Under the selected alternatives, NMFS will require owners and operators, but not crew members, of HMS longline and shark gillnet vessels to attend the protected species safe handling, release, and identification workshops. HMS longline and gillnet vessel owners will be required to attend and successfully complete the workshop before renewing their HMS fishing permit in 2007. Without workshop certification, the vessel's permit will not be renewed. Operators will be required to attend the workshop to ensure that at least one person on board the vessel, who is directly involved with the vessel's fishing activities, has been successfully trained in the proper safe handling, release, and identification of protected species. Without an operator trained in these techniques, the vessel will be prohibited from engaging in HMS PLL, BLL, and gillnet fishing activities. A safe handling, release, and identification workshop certificate will be required on board HMS permitted longline and gillnet vessels during fishing operations. Due to the large universe of HMS longline and shark gillnet crew members, NMFS will not require their attendance at these workshops. NMFS encourages operators to transfer the knowledge and skills obtained from successfully completing the workshops to the crew members, potentially increasing the proper release, disentanglement, and identification of protected resources. While crew members are not required to attend the workshops, to the extent practicable, the workshops will be open to anyone who wishes to attend and receive certification.

Comment 4:

NMFS received several comments supporting mandatory workshop certification for all HMS commercial and recreational hook and line fisheries. Those comments include: Handling and release workshops should be implemented immediately for all HMS commercial and recreational hook and line fisheries in order to gain the maximum benefit from mitigation technologies and fishing practice; training the greatest number of crew members is the key to protecting these imperiled species. To offset the economic impact, we support a longer interval between required training for the rest of the crew, but not a complete exemption; and, all HMS fishermen should the complete workshops.

Response:

This final rule requires owners and operators of PLL, BLL, and gillnet vessels to obtain the safe handling, release, and identification workshop certification. Certified operators will be encouraged to transfer the knowledge, skills, and protocols obtained from these workshops to the vessel's crew members. While these workshops are mandatory for owners and operators, the workshops will also be open to other interested parties, including crew members and other HMS fishermen. Crew members that may have an opportunity to serve as an operator on board a vessel are encouraged to obtain the workshop training and certification. Crew members will not be required to obtain certification in the safe handling and release protocols because the average crew member's individual cost to attend the workshop is greater than the owner and operator. Additional information suggests that turnover is higher with the vessel's crew, making it difficult to continue operating a vessel with a fully certified crew. With at least one individual on board the vessel trained and proficient in the safe handling and release protocols, the likelihood of the safe release and disentanglement of protected species increases significantly. While implementing mandatory workshops for all commercial and recreational HMS fishermen is a laudable goal, NMFS does not have the resources to train such a large group of individuals at this time. Nearly 30,000 HMS recreational permit holders would need to be trained and certified. The cost and logistics of doing this would be prohibitive. However, NMFS may consider these workshops and other means for educating these permit holders in the future.

Comment 5:

NMFS received comments opposed to the protected species workshops. These comments include: handling bycatch correctly wastes too much time on a valuable money-making longline trip; I am opposed to alternative A2 and part of A5, mandatory workshops and certification for all HMS pelagic and bottom longline and shark gillnet vessel owners because it is unnecessary, unless they are an owner and an operator; owners may not be the vessel operator on fishing trips. The first priority should be the vessel operator onboard while at sea on fishing trips.

Response:

NMFS agrees that handling bycatch correctly may take extra time and effort. However, proper handling of bycatch ensures the continued survival of protected, threatened, and endangered species, prevents an exceedance of the incidental take statement (ITS), and prevents a shutdown of the fishery. NMFS realizes that many vessel owners may not operate, or be aboard, their vessels during fishing trips. Under this rule, protected species safe handling, release, and identification workshops are mandatory for all longline and gillnet vessel operators. NMFS will encourage these operators to disseminate the workshop information to their fishing crews. By certifying vessel owners, NMFS ensures that the owners are aware of the certification requirement and skills and will hold them accountable for engaging in fishing activities without a certified operator onboard. Additionally, the certification requirement will be linked to a vessel's limited access permits and owners will not be able to renew their permits without successful completion of the required workshop. NMFS requires that vessel operators follow safe release and handling protocols when they have interacted with certain protected species. All other non-marketable species should be released in a way that maximizes their chances of survival. NMFS requires vessel owners and operators to meet or exceed the performance standards described in the 2004 BiOp.

Comment 6:

NMFS received comments suggesting that the operator be required to train the vessel's crew with the safe handling and release protocols. Those comments include: alternatives A3 and A5 should include a requirement that the certified vessel operator train new crew members prior to each trip as is customary for safety drills; and, it should be clarified that a trained and certified owner or operator must be aboard at all times and that this individual is responsible for ensuring that proper release and disentanglement gear is aboard, the crew is informed, and correct procedures are followed.

Response:

Owners and operators of HMS permitted longline and gillnet vessels will be required to obtain the protected species safe handling, release, and identification workshop certification before the vessel's permit expires in 2007. Operators will be required to be proficient in the safe handling and release protocols to ensure that there is an individual on board the vessel with the necessary skills to disentangle, safely release, and accurately identify any protected species caught in the vessel's gear. Owners and operators will be encouraged to explain and demonstrate the safe handling and release protocols to the vessel's crew members. Owners and operators will not be required to train crew members, as this requirement would be difficult to monitor and enforce. While crew members are not required to attend the protected species

safe handling, release, and identification workshops, to the extent practicable, these workshops will be open to individuals interested in receiving the certification.

Comment 7:

NMFS received comments in support of training fishermen in the proper release of prohibited species and billfish, as well as protected species. These comments include: NMFS should include safe release training for sharks and billfishes in these workshops; these workshops should be referred to as “Careful Handling and Release Workshops,” rather than protected species workshops because the workshops are appropriate for many species; and, the scope of the protected species workshops should be expanded to include prohibited species.

Response:

NMFS agrees that safe handling, release, and identification training may be beneficial to all participants in HMS fisheries, including those that interact with sharks and billfishes. The need for protected species safe handling, release, and identification workshops stems from two BiOps issued for the commercial shark fishery and the pelagic longline fishery. These two BiOps also require outreach to the commercial fisheries employing PLL, BLL, and shark gillnet gear on the proper safe handling, release, and identification of protected species. To comply with these BiOps, the intent of these workshops is to reduce the post-release mortality of sea turtles that are most frequently caught by participants using BLL or gillnet gear to target sharks or PLL gear to target swordfish and tunas. However, the techniques, equipment, and protocols taught at the workshops, although specific to sea turtles, could be used to safely disengage hooks in other fish, such as billfish and sharks, and/or mammals that may be encountered. As NMFS collects additional data regarding the best methods to use to release billfish and other species, NMFS may consider modifying the existing workshops to include information on releasing these other species. Until that time, use of the dehooking equipment and protocols could be employed to safely dehook and release billfish and other non-target species. This use could increase post-release survival rates of non-target species. While workshop attendance and certification would not be mandatory for recreational fishermen, these individuals are welcome to attend voluntarily any of the workshops on safe handling, release, and identification to become more familiar with these techniques and protocols.

Comment 8:

NMFS received comments on grandfathering individuals who attended the industry certified workshops held in Orlando, Florida and New Orleans, Louisiana. Those comments include: the industry should be recognized for holding workshops before NMFS finalized mandatory workshops; the three-year clock should start ticking on January 1, 2007, for those who are grandfathered in, not from when they took the workshop; certification should be given to fishermen and owners who attended previously held workshops; 85 percent of pelagic longline fishermen were trained and industry certified in 2005. The industry was supportive and actively engaged. These workshops should serve as a template for the future workshops; if the industry-certified sea turtle handlers who have already attended and passed the industry mandatory certification classes are required to do something, it should be an online review and should not have to lose additional time at sea and incur additional travel expenses; and, the process should be streamlined for these individuals to receive their initial certification.

Response:

NMFS agrees that industry should be recognized for holding voluntary workshops before NMFS finalized the Consolidated HMS FMP. As such, all owners and operators that, as documented by workshop facilitators, attended and successfully completed industry certification workshops held on April 8, 2005, in Orlando, FL, and on June 27, 2005, in New Orleans, LA, will automatically receive valid protected species workshop certificates prior to January 1, 2007. The certification must be renewed prior to the expiration date printed on the workshop certificate and will need to be renewed prior to renewing their HMS permit. Generally, the certificate will expire every three years consistent with the expiration date of the permit. However, if the certificate is received during a month that is not the owner's or operator's birth month, the certificate may expire in slightly less or slightly more than three years. For example, if the person's birth month is June and they receive the certificate in March, the certificate would be valid for slightly more than three years from the date of completion of the workshop. Those who participated in the industry-sponsored workshops will have three years from their permit renewal in 2007 to renew their workshop certification. Should new information or protocols become available prior to re-certification of any owner or operator, NMFS will disseminate the new information or protocols to the certified individuals prior to their next workshop.

Comment 9:

NMFS received several comments requesting careful consideration when scheduling the workshops. Comments include: the lunar cycles should be considered when scheduling the workshops; workshops during closed season can still inconvenience people because shark fishermen also fish for wahoo, dolphin, etc.; NMFS needs to be cognizant of the time burden involved for fishermen; the mandatory workshops should be held only for critical issues because fishermen must be out fishing to be profitable; and, there needs to be flexibility in the process because not everyone will be able to attend the workshops.

Response:

To the extent practicable, NMFS will consider lunar cycles and their resultant impacts on the availability of HMS participants when scheduling protected species safe handling, release, and identification workshops. However, since the Agency does not know the other fisheries in which fishermen may be participating at all times, the Agency cannot guarantee that each workshop will be held at a time that would minimize lost fishing opportunities. These workshops will be held in areas with high concentrations of permit holders, according to the addresses provided when applying for an HMS permit. The workshop schedule will be available in advance to allow fishermen to attend a workshop that is most convenient to them. The Agency may provide an opportunity for the industry to schedule one-on-one training at the expense of the individual (i.e., trainer fees), if they are unable to attend any of the previously scheduled workshops.

Comment 10:

Some identification training should be provided to the owners and operators during the release and disentanglement workshops.

Response:

Species identification is vital for determining how best to handle a de-hooking event, and also enhances the amount and quality of data available regarding protected species interactions. Accurate species identification is also important for compliance with HMS fishery regulations, including the avoidance of prohibited species, maintaining quota limits, and accurate data collection. NMFS intends to make education a key component of the workshops, and will provide workshop participants with training to safely disentangle, resuscitate, and release sea turtles, as well as identify and release other protected species such as marine mammals and smalltooth sawfish. Sea turtle identification guides are also

available on the internet at

http://www.nmfs.noaa.gov/sfa/hms/

. Some marine mammal identification information can be obtained from the Office of Protected Resources website:

http://www.nmfs.noaa.gov/pr/species/mammals/

. The HMS website also contains a link (HMS ID Guide) to the Rhode Island Sea Grant bookstore where you may purchase identification guides for marine mammals, sharks, tunas, and billfish.

Comment 11:

NMFS received several comments on alternatives A6 and A16, certification renewal timetable. Those comments include: renewal of the workshop certification should occur every three years; NMFS should recertify every three years, but recertification every five years would be better; recertification more frequently than every three years would be too much; the workshop certification requirement could be an impediment to someone selling a vessel if one cannot transfer the certification; certification should be tied to the operator, not the vessel; and, the EPA supports alternative A6.

Response:

Under the selected alternative, owners and operators of HMS longline and shark gillnet vessels will be required to renew the mandatory protected species safe handling, release, and identification workshop certification every three years. A three-year period for recertification will maintain proficiency in the release, disentanglement and identification protocols, and allow NMFS to update owners and operators on new research and developments related to the subject matter while not placing an excessive burden on the participants (e.g., lost fishing time and travel to attend workshops). NMFS considered recertifying owners and captains every five years, but determined that it allows a more extensive period of time to lapse between certification workshops, possibly affecting proficiency and the ability to obtain the latest updates on research and development of safe handling and dehooking protocols. NMFS also considered recertifying owners and operators every two years, but did not select the option because it would likely have the greatest economic burden for the participants due to increased frequency. Federally permitted shark dealers will also be required to renew the mandatory Atlantic shark identification workshop certification on a three-year timetable. A renewal frequency of three years ensures proficiency in shark identification and will provide an update on new developments in shark identification and HMS regulations.

The workshop certification will not be transferable to any other person and will state the name of the permit holder on the certificate. If acquiring an HMS limited access permit (LAP) from a previous permit holder, the new owner will need to obtain a workshop certification prior to transferring the permit into the new owner's name. This requirement ensures that every HMS limited access permit (LAP) owner is fully aware of and accountable for the mandatory protocols that must be followed on board a vessel with longline gear.

The initial operator certification will be linked to the renewal of the vessel's HMS LAP(s) in 2007. If the vessel owner holds multiple HMS LAPs, the operator would need to be certified prior to the earliest expiration date on any of the permits in 2007. After the initial certification, the operator's workshop certificate would need to be renewed prior to the expiration date on the operator's workshop certificate.

Comment 12:

PLL, BLL, and gillnet vessel owners may need to be allowed proxies as well as dealers. NMFS should consider a proxy for elderly owners.

Response:

The 2004 BiOp specifically requires captains to be certified in the safe handling, release, and identification protocols. This rule requires that operators, not captains, attend these workshops as operators are already defined in the regulations as the “master or other individual aboard and in charge of that vessel.” This rule also requires vessel owners for vessels employing longline or gillnet gear to attend the workshops to educate the vessel owner in the protocols, requirements, and responsibilities of participating in the commercial shark or swordfish commercial fisheries. Vessel owners will be held accountable for preventing their vessel from engaging in fishing activities without a certified operator on board. NMFS is concerned that vessel owners would select proxies that are not involved with the day-to-day operation of their vessel, thus compromising the goals of these workshops and weakening the vessel owner's accountability for the activities conducted on board the vessel. Non-compliance with the requirements of the 2003 and 2004 BiOps could result in additional, more restrictive management measures in the future.

Comment 13:

EPA commented that the Draft Consolidated HMS FMP would be improved by providing a more balanced discussion of workshop costs, and noted that in today's society, most trades and professions require practitioners to obtain licenses demonstrating competence. Additionally, without authorized takings procedures, owners/operators might have to defend themselves in courts of law for violating ESA. EPA stated that if one considers the time invested in attending a one-day workshop, this measure seems like a bargain. EPA questioned the assumption inherent in the cost/earnings analysis that accepts the premise that time spent becoming qualified to practice longline fishing is time lost, and of no value.

Response:

NMFS acknowledges that many trades and professions require practitioners to obtain licenses demonstrating competence. However, there is still an economic opportunity cost associated with any required activity that would not otherwise be taken voluntarily. In the case of analyzing the economic costs associated with workshop alternatives, NMFS assumed the activity that workshop participants would be engaged in, if they were not attending the workshop, would be fishing. NMFS's use of wage rates from primary job activities as the opportunity cost of engaging in other activities is commonly accepted practice by economists.

NMFS recognizes that the training provided by workshops is valuable to fishermen and may offset some unquantifiable portion of the opportunity costs that were estimated. The opportunity cost estimates provided in the Draft Consolidated HMS FMP were considered to be upper bounds on the potential economic costs associated with attending workshops. Information quantifying the economic value of time spent at the workshops is not currently available to further refine the upper bound cost estimates used in the economic analysis of workshop alternatives.

ii. Atlantic Shark Identification Workshops

Comment 14:

NMFS received several comments in support of alternative A9, mandatory Atlantic shark identification workshops for all shark dealers. Those comments include: dealers should be required to attend the shark identification workshops; if shark dealers cannot properly identify a fish, their license and ability to be a dealer should be permanently revoked; workshops for species identification are generally unnecessary for commercial fishermen although shark identification workshops may be necessary for dealers or recreational fishermen; NMFS needs to rename the Identification Workshops as being Shark and not HMS, since only shark dealers are expected to be in attendance and certified at identifying sharks, not tunas; NMFS should have two days of training, one mandatory

(dealers) and one voluntary (fishermen, public, etc); workshops give the dealer a good housekeeping seal of approval; NMFS should consider prioritizing the certification of shark dealers because the universe is so large; prioritization of shark dealers could be based upon a minimum annual purchase of shark products; and, EPA supported alternative A9, stating that accurate species identification is necessary for compliance with HMS fishery regulations, including avoidance of prohibited species, maintaining quota limits, and also for accurate data collection.

Response:

Under the selected alternative, A9, NMFS renamed the HMS identification workshops as Atlantic shark identification workshops because only federally permitted shark dealers will be required to attend the workshops and receive certification. Identification training will be focused on various species of sharks likely to be encountered by the dealer in both whole and dressed form. These mandatory identification workshops will improve the ability of shark dealers to identify sharks to the species level and will improve the data collected for quota monitoring, stock assessments, and decision making processes for formulating appropriate fishery management strategies. While mandatory for shark dealers, these workshops will be open to other interested individuals, to the extent possible. Workshop locations will be based on dealer permit addresses. A schedule of workshops will be available in advance to allow dealers to select the workshop most convenient to their schedule. The Agency may provide an opportunity for the industry to schedule one-on-one training at the expense of the individual (i.e., trainer costs), if they are unable to attend any of the previously scheduled workshops.

Comment 15:

NMFS received several comments concerned about the effectiveness of the Atlantic shark identification workshops for only shark dealers. The comments include: limiting HMS identification workshops to dealers only will mean proper species identification will come too late for prohibited species such as dusky sharks and such a strategy will not address problems with recreational compliance. NMFS should expand the required audience at the HMS identification workshops and/or expand the scope of the protected species workshops to include identification and safe release of prohibited shark species; the identification workshop for dealers only is not enough. It will help with data collection and stock assessments, but it will not help with conservation; and, the Agency should focus its efforts on the directed shark fishermen that are actually landing sharks and dealers with 90 percent of the catch.

Response:

Under the selected alternatives, Atlantic shark identification workshops will be mandatory for federally permitted shark dealers, but, to the extent possible, these workshops would be open to other interested individuals (e.g., individuals participating in the shark fishery, port agents, law enforcement officers, state shark dealers, and recreational fishermen) on a voluntary basis. Under this rule, federally permitted shark dealers will be required to take this training in an effort to reduce unclassified shark landings and improve species-specific landings data. Improvements in shark dealer data will improve existing quota monitoring programs as well as improve the accuracy of future stock assessments. With improved shark identification, dealers will be more accountable for the sharks purchased, potentially discouraging the purchase of prohibited species. If there is no market for prohibited species, fishermen may modify their behavior and safely release any incidental catch of prohibited species. To train and certify the greater than 25,000 anglers that participate in the HMS recreational fishery exceeds the Agency's resources at this time. While commercial and recreational shark fishermen will not be required to attend the Atlantic shark identification workshops, to the extent possible the workshops will be open to anyone who wishes to attend and receive certification. In the future, additional actions may be taken to improve the data collected from the HMS recreational industry.

Comment 16:

NMFS received comments on Alternative A15, mandatory attendance at HMS identification workshops for all HMS Angling category permit holders. Those comments include: mandatory attendance for all HMS Angling category permit holders would be a substantial undertaking; HMS identification workshops should be mandatory for all fishermen that land sharks; HMS Angling category permit holders should also have to attend because they are the primary misidentification and non-reporting problem; most commercial fishermen know how to identify species; and, some of the species identification problem is an angler problem.

Response:

At this time, Atlantic shark identification workshops will not be required for HMS Angling category permit holders. Under this rule, all federally permitted shark dealers will be required to attend the Atlantic shark identification workshops. The dealer's ability to renew a Federal dealer permit will be conditioned upon the successful completion of the workshop. The purpose of the Atlantic shark identification workshops is to improve the data collected from the fishery, thereby improving quota monitoring and stock assessments. Dealer reports are an important data source for quota monitoring and management decisions; and therefore, these workshops will have greater impact on improving the accuracy of the shark species identification. While the recreational fishery also contributes to shark misidentification, mandatory attendance for the angling community would not resolve the data quality issues associated with commercial vessel logbooks and dealer reports. Thus, quota monitoring and commercial regulatory compliance would not benefit from mandatory angler attendance as they would under mandatory shark dealer certification. Commercial and recreational shark fishermen are not required to attend the Atlantic shark identification workshops, but to the extent possible, the workshops will be open to anyone who wishes to attend and receive certification. The money and time required to track and link permits to the workshop certification, to hold an appropriate number of workshops to certify all HMS anglers permit holders (over 25,000 individuals), and to enforce the workshop requirement for all HMS angler permit holders currently exceed the Agency's resources. In the future, additional actions may be taken to improve the data collected from the HMS recreational industry.

Comment 17:

NMFS received two comments about mandatory workshops for state shark dealers. Those comments are: HMS identification workshops should be held for state dealers to encompass the entire universe of dealers reporting unclassified sharks; and, NMFS needs more information on state shark landings. The Agency is wasting the industry's time requiring the wrong people to attend these workshops.

Response:

NMFS does not have jurisdiction over state permitted shark dealers and cannot require their attendance at Federal workshops. However, to the extent possible, the Atlantic shark identification workshops would be open to other interested individuals, including state shark dealers, on a voluntary basis. To purchase sharks from a federally permitted vessel, a state shark dealer must also possess a Federal shark dealer

permit and, therefore, will be required to attend the workshops.

Comment 18:

NMFS should require port agents to attend these workshops to improve their shark identification skills. Law enforcement needs to learn how to identify sharks.

Response:

This action does not require port agents or law enforcement to attend the Atlantic shark identification workshops. The intent of this action is to reduce the number of unknown sharks in the shark dealer reports; therefore shark dealers or their proxy are required to attend the workshop. To the extent practicable, the Agency will notify law enforcement officials and port agents of workshops in their respective regions and encourage them to attend these workshops to improve their identification skills, especially since port agents are often responsible for the collection of biological information on many species that the Agency manages. Furthermore, law enforcement officials also need to identify sharks to the species level to enforce regulations related to seasons, minimum sizes, bag limits, and trip limits. Port agents and law enforcement officials are required to attend rigorous training on the identification of HMS regulated species; however, the material that will be covered in these workshops might provide additional information on morphological characteristics to facilitate shark identification in various conditions at landing (i.e., no fins, no head, several days since landing, and gutted). Because port agents and law enforcement do receive some identification training and are not directly involved with reporting shark landings, the Atlantic shark identification workshops are only mandatory for shark dealers at this time.

Comment 19:

It is very difficult to sell “unknown” sharks in the market and sharks are being listed as unclassified because it is the path of least resistance when they are reporting.

Response:

Landings data from 2004 indicate that the number of unclassified large coastal, small coastal, and pelagic shark landings was 19 percent, 0.3 percent, and 53 percent of total shark landings. These percentages indicate that a significant number of sharks enter the market as unclassified, despite regulations that require species-specific reporting by vessel owners and dealers. NMFS does not know if sharks are being listed as unclassified because fishermen and dealers are unable to identify them, to circumvent restrictions, or because it is the most expeditious manner to process the catch as the commenter suggests. However, NMFS believes that mandatory Atlantic shark identification workshops will improve the ability of shark dealers to identify sharks to the species level. NMFS anticipates that these workshops will improve the data collected to assess stock status and decision making processes for formulating appropriate fishery management strategies.

Comment 20:

NMFS received comments on the workshop materials and the need to hold shark identification workshops. These comments include: NMFS will need pictures of all the shark species to teach proper identification. Those pictures will need to include pictures of dressed fish, whole fish, and fins of each species, especially prohibited species; and, NMFS should consider enlisting members of the industry to help with these workshops.

Response:

NMFS would coordinate with local shark dealers to have some dressed sharks available for each workshop. If the workshops are held after a closure or in an area where no carcasses are available, NMFS would use other tools, such as photo presentations and dichotomous keys, to present methods for identifying dressed sharks to the species level. The Agency intends to use a combination of dressed sharks, fins, photo presentations, and dichotomous keys to improve species-specific shark carcass identification. The success of the Atlantic shark identification workshops will depend upon cooperation between the Agency and the industry.

Comment 21:

Please consider Houma as a location to conduct the shark dealer workshops, if selected.

Response:

NMFS would not be able to hold workshops at every shark dealer facility; however, the Agency examined the number and location of shark dealers in each region, and would work to provide workshops in areas that are convenient to the greatest number of people. A preliminary evaluation of dealers in the southern Louisiana region shows that Houma proportionally does not land the most sharks in the region, but is central to other locations. As suggested, the Agency will consider Houma as a potential site for an Atlantic shark identification workshop.

Comment 22:

NMFS received several comments on allowing a proxy to attend the Atlantic shark identification workshops for the shark dealers. Those comments are: NMFS should allow a purchase agent proxy to attend instead of the shark dealer permit owner; NMFS needs to consider all of the truck drivers operating under the single NMFS shark dealer permit who purchase sharks products from satellite locations; if a shark dealer loses his proxy due to unforeseen circumstances, NMFS should have some flexibility on allowing the fishhouse to continue operating until a replacement is found and certified; a trained and certified dealer representative must be present at all times whenever HMS catches are offloaded to be responsible for ensuring that all HMS landings are monitored and properly documented; dealers should be allowed more than one proxy if requested; “Dockside Technicians” should be allowed as a proxy for the fish dealer who may not be present during vessel pack-outs; the DEIS/proposed rule has some good ideas for proxies, but NMFS will need to be careful about a lapse between proxies, should the individual leave the business; and, there must be a fast track way to get certified if a proxy leaves, such as online certification.

Response:

Under this final rule, all federally permitted shark dealers will be required to obtain an Atlantic shark identification workshop certification. NMFS encourages shark dealers to send as many proxies as necessary to train staff members responsible for shark species identification within the dealer's business. Federally permitted shark dealers will be responsible for ensuring that the appropriate individuals receive the proper training in shark identification. Federally permitted shark dealers will be encouraged to share the workshop information and training with individuals that were unable to attend the workshop. Multiple proxies for each federally permitted shark dealer will better ensure that every dealer has at least one person on staff who possesses workshop certification and the skills necessary to properly identify sharks if another proxy's employment is terminated. The schedule for Atlantic shark identification workshops will be available in advance to allow dealers and proxies to select the workshop closest to them and most convenient to their schedule. If a dealer or proxy is not able to attend a scheduled workshop, NMFS will consider one-on-one training at the expense of the individual. These one-on-one training sessions could also accommodate the replacement of a proxy whose employment was terminated on short notice.

iii. Other Workshop Related Comments

Comment 23:

NMFS received several comments on outreach beyond the two workshops. These comments included: regardless of who is required to attend the workshops, the Agency should do at-sea identification; a field guide should be sent out to all HMS permit holders; NMFS should provide

waterproof field identification materials; manuals should be developed on the proper billfish and tuna release handling procedures; and, HMS Identification Guide should be required on board permitted vessels and in the office of HMS permitted fish dealers. The Guide could also be made available online.

Response:

The HMS website (

http://www.nmfs.noaa.gov/sfa/hms/

) currently provides a variety of information on several HMS and protected species, including a tutorial on sea turtle identification and handling, and a link to purchase the waterproof HMS identification guide from Rhode Island Sea Grant, as well as the safe handling and release protocols and placards in three different languages (English, Spanish, and Vietnamese). Curriculum for the Atlantic shark identification workshops is in development. However, current plans include distributing waterproof identification materials at the protected species workshops, as well as distributing and training participants to use a key for distinguishing species-specific features at Atlantic shark identification workshops. NMFS recommends that these materials be readily accessible in dealer offices and onboard fishing vessels, and encourages workshop participants to share knowledge gained with their crew and other employees. While NMFS would like to distribute the HMS guide to all HMS permit holders, the resources to do so are not currently available.

Comment 24:

NMFS received several comments about providing an expedited means for receiving the training, certification, and renewal. Those comments include: there should be internet training and certification; can HMS identification workshops and renewals occur online?; certification over the internet might not suffice, however, recertification might be possible; to facilitate normal turnover, review and busy schedules, NMFS could conduct training via the internet and/or by mail; NMFS needs to provide a convenient way for new captains to be certified prior to their first trip; initial certification for new vessel operators must be conveniently available, such as a self-course over the internet or overnight mail; vessel operations should not be held up unnecessarily; NMFS needs to make sure to develop a streamlined approach to keeping this certification effort simple and convenient so as to not to be a burden to all folks participating; hands-on training is important; and, the first time going through the training must occur in the workshop.

Response:

The Agency's priority is to make the workshops as successful and effective as possible. Due to the nature of workshop subject matter, hands-on training and interaction with the workshop leader is vital for initial skill development and certification for the protected species safe handling, release, and identification workshops, as well as the Atlantic shark identification workshops. Once the first round of certifications are complete, NMFS will explore alternative means for renewing permits, including online or mail-in options. The Agency also hopes to develop an online program that will provide up-to-date information regarding HMS identification and protected species handling techniques.

To facilitate coordination between workshops and regular business activities, NMFS plans to do a focused mailing to permit holders to ensure that the workshop times and locations are known in advance. This will allow workshop participants to plan workshop attendance accordingly and prevent lapses in fishing activities.

Comment 25:

How did NMFS analyze the economic impacts of attending these workshops?

Response:

NMFS conducted an opportunity cost analysis to determine the economic costs associated with attending the various workshop alternatives. This analysis used economic information obtained from the HMS logbook, specifically the economic costs section that is required to be completed by selected vessels. For vessels that completed the economic costs section of the HMS logbook in 2004, revenues per trip were estimated by taking the number of fish caught per trip, multiplying the number of fish by average weights for each species harvested, and multiplying the total weights for each species by average prices for each species as reported in the dealer landings system. The costs reported for each trip were then subtracted from the estimated revenue for each trip. Then the number of days at sea as reported in logbooks was used to determine the average net revenue per day at sea for each trip taken. Finally, the information provided on crew shares was used to allocate the net revenue per day at sea to owner, captain, and crew. Information from the HMS permits database was then used to estimate the potential number of participants in each of the workshop alternatives. Since information on the number of captains per permitted vessel was not available, NMFS conservatively estimated that there could be two captains per permit for PLL vessels and one captain for all others. Net revenues per day for owners, captains, and crew were then multiplied by the number of participants expected for each workshop alternative to estimate the opportunity cost for a one day workshop. The economic impacts (i.e., out of pocket cash costs) associated with attending workshops is likely to be less than the economic opportunity costs estimated since NMFS plans on scheduling workshops on less productive fishing days to avoid lost time at sea.

Comment 26:

If training and certification is mandated, it is essential that NMFS ensure that adequate funding and personnel resources are dedicated to develop and fully support all program facets.

Response:

The Agency agrees and is fully aware of the ramifications of these workshops and the need to implement them successfully. Numerous individuals, with a variety of expertise and backgrounds have been involved in the implementation of the voluntary workshops to date, and will be involved in any future mandatory workshops, including: shark identification and biology, fishing gear technology and deployment, safe release and handling of protected resources, vessel permitting, fisheries law enforcement, and shark carcass identification.

Comment 27:

NMFS should consider how to ensure compliance with this requirement and should have a plan to measure the effectiveness of the workshops.

Response:

Successful completion of both workshops will be linked to the renewal of the owner's or dealer's HMS permits. Longline and gillnet vessel owners must be certified in the safe release and disentanglement protocols before they can renew their limited access permits. Additionally, longline and gillnet vessels may not engage in fishing operations without a certified operator onboard, as well as proof of owner and operator certification. Similarly, Federal shark dealers must be certified in shark identification, or have a certified employee, to renew their dealer permit. NMFS will gauge the success of these requirements by monitoring compliance with the sea turtle release and disentanglement performance standards established in the 2004 BiOp, as well as by monitoring the number of unclassified sharks reported by Federal dealers.

Comment 28:

NMFS received comments suggesting that the Agency provide the workshop materials in other languages, such as Spanish and Vietnamese, as well as English.

Response:

NMFS acknowledges the diversity of HMS fishery participants, and will make workshop materials

accessible to as many of its constituents as possible. While the workshops will be conducted in English, NMFS hopes to provide workshop materials in other languages for distribution at and outside of the workshops. Placards of sea turtle handling and release guidelines are currently available in English, Spanish, and Vietnamese. To the extent practicable, the Agency will work to develop shark identification materials in these languages as well.

Comment 29:

NMFS received several comments related to alternative A17, Compliance with and Understanding of HMS Regulations. Those comments include: compliance and increased understanding of HMS regulations could be addressed by mailing an updated HMS Compliance Guide to each HMS recreational and commercial permit holder each year; workshops on the regulations are unnecessary as long as brochures are available; the proposed workshops should cover new regulatory requirements, such as the new PLL TRT regulations; there are no alternatives in the Draft Consolidated HMS FMP for workshops on HMS regulations. The GMFMC recommends that an interactive web-based tutorial be available to improve the understanding and compliance with HMS regulations. This training should be mandatory for commercial captains; and, NMFS should consider mandatory recreational compliance workshops because commercial vessels adhere to many U.S. regulations but less emphasis is placed upon recreational compliance.

Response:

During scoping, NMFS explored an alternative that focused on enhancing compliance with, and understanding of, HMS regulations using Agency sponsored workshops. NMFS received comments noting that mandatory workshops need to be prioritized due to the time and cost to those who must attend. Furthermore, comments were received in support of continuing the current methods of disseminating information pertaining to HMS regulations (e.g., Annual HMS Compliance Guide) rather than spending Federal dollars to conduct workshops on the regulations at this time. Advisory Panel members supported focusing on mandatory requirements (e.g., workshops required under BiOps and other mandates) first, and then following up with additional outreach materials to meet regulatory informational needs. NMFS already disseminates this type of information and, because this information can be distributed to participants attending NMFS sponsored workshops, this alternative was not further analyzed in the Consolidated HMS FMP. Compliance guides and brochures can be obtained from the HMS website (

http://www.nmfs.noaa.gov/sfa/hms/

).

Under this final rule, NMFS requires owners and operators to attend mandatory protected species safe handling, release, and identification workshops. Furthermore, shark dealers (or their designated proxy(ies)) must attend Atlantic shark identification workshops. In doing so, NMFS may consider the use of web-based training as a suitable media for disseminating training information following an initial workshop.

B. Time/Area Closures

i. New Closures

Comment 1:

Alternative B2(a) indicates that there would be ecological benefits to leatherback sea turtles and blue and white marlin, yet this alternative was given cursory treatment.

Response:

NMFS comprehensively analyzed the ecological and economic impacts of all alternatives, including alternative B2(a), in the Draft and Final Consolidated HMS FMPs, consistent with the analytical requirements of NEPA, the Magnuson-Stevens Act, ATCA, and other laws. In the Draft Consolidated HMS FMP, NMFS investigated potential changes in bycatch and discards with and without the redistribution of fishing effort for all the time/area closure alternatives considered. For alternative B2(a), NMFS evaluated a total of three scenarios of redistributed effort (as well as a fourth scenario without redistribution of effort), each of which had different assumptions regarding how fishing effort would be redistributed into open areas. The first scenario assumed that fishing effort (i.e., hooks) from alternative B2(a) would be displaced into all open areas. The second scenario assumed all fishing effort would only be redistributed within the Gulf of Mexico. The third scenario assumed that fishing effort would be displaced within the Gulf of Mexico and into an area (i.e., Area 6) where the majority of vessels with Gulf of Mexico homeports have been reported fishing during 2001 - 2004.

All three of these scenarios predicted that bycatch and discards would increase for at least one of the species considered. For instance, under the first scenario, NMFS predicted an increase in loggerhead sea turtle interactions (7.9 percent or 14 turtles/over three years; annual numbers may be obtained by dividing by three), bluefin tuna (BFT) discards (10.3 percent or 166 discards/over three years), swordfish discards (4.4 percent or 1,635 discards/over three years), yellowfin discards (3.0 percent or 166 discards/over three years), and bigeye tuna discards (11.6 percent or 117 discards/over three years). Under the second scenario of redistributed effort (effort only redistributed in the Gulf of Mexico), NMFS predicted increases in sailfish discards (1.8 percent or 18 discards/over three years), spearfish discards (3.3 percent or 14 discards/over three years), pelagic shark discards (0.3 percent or 112 discards/over three years), large coastal shark discards (3.6 percent or 598 discards/over three years), swordfish discards (4.4 percent or 1,635 discards/over three years), yellowfin discards (22.3 percent or 1,224 discards/over three years), bigeye tuna discards (0.4 percent or 4 discards/over three years), and BAYS tuna discards (1.0 percent or 91 discards/over three years). Finally, under the third scenario (redistribution in the Gulf of Mexico and Area 6), NMFS predicted increases in sailfish (4.7 percent or 61 discards/over three years), pelagic sharks (4.4 percent or 834 discards/over three years), BFT discards (1.6 percent or 35 discards/over three years), and BAYS tuna discards (0.7 percent or 70 discards/over three years). Given the potential negative ecological impact of B2(a) under all three redistribution of effort scenarios, NMFS is not implementing alternative B2(a) at this time.

Comment 2:

NMFS decided against any new closures to protect sea turtles, billfish, and other overexploited species at this time because there is no closure that will benefit all species. Closures should not be rejected because they do not “solve” the bycatch problem on their own. Rather, they should be coupled with other sensible measures to ensure that all species are receiving the protection they need to recover and maintain healthy populations.

Response:

NMFS agrees that closures can be combined with other measures to achieve management objectives. However, NMFS did not reject closures because there was not a closure that benefited all species. To the contrary, NMFS is not preferring the closures because, in part, there were indications that the closures could actually result in an increase in bycatch to the detriment of some species with the consideration of redistributed effort. Additionally, NMFS does not prefer implementing new closures at this time, other than the Madison-Swanson and Steamboat Lumps Marine Reserves, for a number of other reasons, including those discussed below in this response. All of the data used in the time/area analyses were based on J-hook data. The Northeast Distant experiment suggested that circle

hooks likely have a significantly different catch rate than J-hooks; further investigations are required to determine the potential impact of any new time/area closures. The final logbook data recently became available. NMFS is beginning to analyze that data. NMFS also continues to monitor and analyze the effect of circle hooks on catch rates and bycatch reduction as well as assess the cumulative affect of current time/area closures and circle hooks. NMFS does not prefer to implement new closures until the effect of current management measures, and potential unanticipated consequences of those management measures, can be better understood. Second, NMFS is awaiting additional information regarding the status of the pelagic longline (PLL) fleet after the devastating hurricanes in the Gulf of Mexico during the fall of 2005. A majority of the PLL fleet was thought to be severely damaged or destroyed during the 2005 hurricane season. The amount of PLL fishing effort, especially within the Gulf of Mexico, will be assessed in the summer of 2006 when data quality control procedures on the 2005 HMS logbook data are complete. Until NMFS can better estimate the current fishing effort and potential recovery of the PLL fleet, it is premature to implement any new time/area closures. Third, a number of stock assessments will be conducted during 2006 (LCS, blue marlin, white marlin, north and south swordfish, eastern and western BFT, and large coastal sharks). NMFS is waiting on the results of these stock assessments to help determine domestic measures with regard to management of these species. Once NMFS has this updated information, NMFS will consider additional management measures, potentially for all gear types, to help reduce bycatch and discard rates. NMFS is also trying to assess how protecting one age class at the potential detriment of other age classes will affect the fish stock as a whole. For instance, how will protecting spawning BFT help rebuild the stock if it results in increased discards of non-spawning adults, juvenile, and sub-adult BFT along the eastern seaboard? More information is needed to further understand how to manage this species given its complex migratory patterns, life history, and age structure. NMFS is also considering developing incentives that would dissuade fishermen from keeping incidentally caught BFT, particularly spawning BFT, in the Gulf of Mexico. This may involve research on how changes in fishing practices may help reduce bycatch of non-target species as well as the tracking of discards (dead and alive) by all gear types. In addition, sea surface temperatures in the Gulf of Mexico have recently been thought to be associated with congregations of BFT and putative BFT spawning grounds in the Gulf of Mexico (Block, pers. comm.). NMFS intends to investigate the variability associated with sea surface temperatures as well as the temporal and spatial consistency of the association of BFT with these temperature regimes. By better understanding what influences the distribution and timing of BFT in the Gulf of Mexico, NMFS can work on developing tailored management measures over space and time to maximize ecological benefits while minimizing economic impacts to the extent practicable.

Comment 3:

NMFS received several comments regarding additional closures to consider including: NMFS should consider a time/area closure for longlining from the 35

th

parallel to the 41st parallel, from the 30 fathom line to the 500 fathom line, from June 15 to September 30; NMFS should consider longline closures around San Juan, Puerto Rico and other areas around Puerto Rico; NMFS should pressure the states north of the North Carolina closed area to close their state waters during April through July 31 to protect juvenile sandbar sharks; since the sandbar shark HAPC includes a major U.S. nursery area for this species, NMFS should close the Federal waters out to 10 fathoms from April to July 31 each year; NMFS should reevaluate its decision not to close the Northeast Central statistical area proposed as Alternative A14 in the June 2004 SEIS; and, Georgia CRD requests either the closure of the EEZ off Georgia to gillnet gear to facilitate state enforcement and management efforts or the requirement for shark gillnet vessels to carry VMS year-round to facilitate Georgia's cooperative state/Federal enforcement efforts.

Response:

While additional areas could be considered for time/area closures, NMFS considered a range of different closures that encompassed the major areas of bycatch for the greatest number of species of concern. Due to the number of bycatch concerns regarding the pelagic longline fishery and the availability of data, most of the analyses for potential closures focused on the pelagic longline fishery. Although some alternatives, such as preferred alternative B4, affect additional HMS fisheries such as the recreational fishery. The majority of the areas were initially selected by plotting and examining the HMS logbook and Pelagic Observer Program (POP) data from 2001 - 2003 to identify areas and times where bycatch was concentrated. When identifying areas to consider, NMFS also took into account information received in a petition for rulemaking to consider an additional closure (alternative B2(c)) to reduce BFT discards in a reported spawning area in the Gulf of Mexico (Blue Ocean Institute et al., 2005; Block et al., 2005), and a settlement agreement relating to white marlin, which was approved by the court in

Center for Biological Diversity

v.

NMFS

, Civ. Action No. 04-0063 (D.D.C.). Using the preferred alternative B5, NMFS may consider additional closures, including closures for juvenile sandbar sharks and closures for other gear types, including gillnets and/or recreational gear, in future rulemakings, as needed.

Comment 4:

NMFS received several comments in favor of maintaining existing time/area closures. These comments included: time/area closures should be used to promote conservation of all HMS species; marine sanctuaries need to be established for all species of fish; these areas need to remain closed until the fishery is rebuilt to the 1960s levels that existed prior to the overcapitalization of this fishery; as a result of the existing closures, overall discards have declined by as much as 50 percent so NMFS should continue to expand the existing closures; the reductions in bycatch as a result of the existing closures benefit a wide range of species; current closed areas are effective, based upon recent increases in swordfish size and weight in the deep-water recreational swordfish fishery; and suggestions by the industry that the closed area goals have been met because swordfish are rebuilt ignore the broader purpose and benefit of the closures.

Response:

NMFS agrees that the existing closures have effectively reduced the bycatch of protected species and non-target HMS, and have provided positive ecological benefits. NMFS prefers to keep the existing closures in place at this time. For example, the overall number of reported discards of swordfish, BFT, and bigeye tunas, pelagic sharks, blue and white marlin, sailfish, and spearfish have all declined by more than 30 percent. The reported discards of blue and white marlin declined by about 50 percent, and sailfish discards declined by almost 75 percent. The reported number of sea turtles caught and released declined by almost 28 percent. However, these analyses are based on J-hook data, and the fishery is required to use circle hooks. It is possible that the impact of such closures since implementation of circle hooks may be greater in ecological benefits than expected. If this happens,

NMFS may not need to implement new closures and may be able to reduce existing closures. NMFS currently only has final, quality controlled HMS logbook data on the catch associated with circle hooks from July through December of 2004. NMFS anticipates having final, quality controlled 2005 HMS logbook data in the summer of 2006. At that time, NMFS will examine and analyze the effect of circle hooks on catch rates and bycatch reduction. Any changes to the existing closures would occur through a proposed and final rulemaking using the criteria in the preferred alternative B5.

Comment 5:

NMFS received a number of comments in opposition to closures including: the effectiveness of time/area closures as a management tool to address bycatch issues has been exhausted; bycatch measures other than time/area closures should be considered; closures are not conservation, but reallocation to prohibit one hook and line gear (especially, circle hook gear) while allowing another hook and line gear (especially, more harmful J-style hook gear and live baiting); these areas were closed to rebuild the now fully rebuilt swordfish stock; an alternative to a full area closure could be to conduct an experimental fishery to test gear modifications - if the modifications do not work then put in a full closure; and the pelagic longline industry cannot withstand additional time/area closures.

Response:

NMFS does not believe that the effectiveness of time/area closures as a management tool has been exhausted. The existing closures have effectively reduced the bycatch of protected species and many non-target HMS, and have provided positive ecological benefits. For example, the overall number of reported discards of swordfish, BFT and bigeye tunas, pelagic sharks, blue and white marlin, sailfish, and spearfish have all declined by more than 30 percent. The reported discards of blue and white marlin declined by about 50 percent, and sailfish discards declined by almost 75 percent. The reported number of sea turtles caught and released declined by almost 28 percent. Thus, the current time/area closures have had positive ecological impact by reducing the overall bycatch of non-target and protected species. However, NMFS recognizes that the current closures have had an impact on retained species' landings as well. For example, from 1997 to 2003, the number of swordfish kept declined by nearly 28 percent, the number of yellowfin tuna kept declined by 23.5 percent, and the total number of BAYS kept (including yellowfin tuna) declined by 25.1 percent. Such declines in landings have resulted in negative economic impacts for the fleet and may explain the overall decline in effort by the Atlantic PLL fishery from the pre- to post-closure period. Thus, while time/area closures play an important part in resource management, NMFS does not prefer to implement new closures, except for the Madison-Swanson and Steamboat Lumps Marine Reserves, until NMFS can assess the cumulative effect of the current time/area closures and circle hooks. In addition, NMFS is waiting for additional information regarding the status of the PLL fleet after the devastating hurricanes in the Gulf of Mexico during the fall of 2005. A portion of the PLL fleet was thought to be severely damaged or destroyed during the 2005 hurricane season. Until NMFS can better estimate the current fishing effort and potential recovery of the PLL fleet, NMFS believes that it is premature to implement any new time/area closures, particularly on the PLL fleet.

ii. BFT/Gulf of Mexico

Comment 6:

NMFS received comments regarding time/area closures to protect BFT spawning areas in the Gulf of Mexico (Alternatives B2(c) and B2(d)). Some of these comments suggested NMFS should consider different months or permutations of months between January and August. Other comments included: NMFS should implement additional measures to protect the Atlantic BFT biomass, especially spawning fish in the Gulf of Mexico; NMFS should consider closing the Gulf of Mexico to protect spawning BFT and analyze different time periods in combination with the northeast closures during months of high discards or high CPUE that might address effects on loggerhead sea turtles; an area south of Louisiana surrounding known BFT spawning areas should be closed to all longline fishing for a reasonable period of time — at a minimum this should include the area identified in Alternative B2(c); the study in the journal “Nature” firmly establishes the time and location of the spawning season and affords NMFS the opportunity to close a hot spot based on the best available science; Japan has recommended a longline closure of the entire Gulf of Mexico at ICCAT; NMFS should immediately initiate interim or emergency action to close the longline fishery in the Gulf of Mexico, starting in January of 2006 that would be effective for six months each year from January through June; NMFS should explain why the ecological benefits of closing the longline fishery in the Gulf of Mexico during BFT spawning season, as described in Alternative B2(c), would be minimal; why does NMFS assume that a longline closure in the Gulf of Mexico would cause a redistribution of effort to areas where BFT discards could increase; and, what are the positive and negative economic consequences of allowing longline fishing to continue in the Gulf of Mexico during BFT spawning season?

Response:

NMFS considered a wide range of alternatives ranging from maintaining existing closures (No Action) to a complete prohibition of PLL gear in all areas in order to reduce the bycatch and bycatch mortality of non-target HMS and protected species, such as sea turtles, in Atlantic HMS fisheries. After comparing the potential bycatch reduction for all of the closures that NMFS initially considered (see Chapter 2 of the FEIS for a description of alternatives), NMFS chose five closures with the highest overall bycatch for further analysis. Alternative B2(c), closing 101,670 nm

2

in the Gulf of Mexico from April through June, was chosen for analysis in response to a petition received by NMFS from several conservation organizations requesting consideration of a closure of the “Gulf of Mexico BFT spawning area” (Blue Ocean Institute et al., 2005). The times and areas analyzed for alternative B2(c) were directly from the petition. Alternative B2(d) was chosen for analysis in order to determine if any other closure, or combination of closures, would be more effective at reducing bycatch than some of the other alternatives considered. The analyses indicated that almost all of the closures and combinations of closures considered for white marlin, BFT, or sea turtles would result in a net increase in bycatch for at least some of the primary species considered when redistribution of fishing effort was taken into account. In addition, the predicted reduction in bycatch when redistribution of fishing effort was taken into account was typically less than 30 percent for any given species with overall reduction in the number of individual species being very low.

According to Pelagic Observer Program (POP) data, without redistribution of effort, alternative B2(c) would reduce discards of all non-target HMS and protected resources from a minimum of 2.3 percent for spearfish to a maximum of 25.0 percent for other sea turtles (comprised of green, hawksbill, and Kemp's ridley sea turtles). Without redistribution of effort, the logbook data indicate that alternative B2(c) would potentially reduce discards of all of the species being considered from a

minimum of 0.8 percent for pelagic sharks to a maximum 21.5 percent for BFT. With redistribution of effort, however, bycatch was predicted to increase for all species except leatherback and other sea turtles. Even BFT discards, which showed a fairly dramatic decline without redistribution of effort, were predicted to increase by 9.8 percent with redistribution of effort. Alternative B2(d) would prohibit the use of PLL gear by all U.S. flagged-vessels permitted to fish for HMS in a 162,181 nm

2

area in the Gulf of Mexico west of 86 degrees W. long. year-round, thus eliminating an area where approximately 50 percent of all effort (Atlantic, Gulf of Mexico, and Caribbean) and 90 percent of all effort in the Gulf of Mexico has been reported in recent years (2001 - 2003). Without the redistribution of effort, the closure could have resulted in large reductions in all non-target HMS, ranging from a 10.1 percent reduction in loggerheads to 83.5 percent reduction in spearfish discards. With the redistribution of effort, NMFS predicted a decrease in discards of blue marlin (20.3 percent or 497 discards/over three years; annual estimates can be obtained by dividing by three), sailfish (26.8 percent or 276 discards/over three years), and spearfish (73.3 percent or 276 discards/over three years). However, given the size and timing of this closure (i.e., year-round), NMFS also predicted an increase in white marlin discards (0.3 percent or 10 discards/over three years), loggerhead sea turtle interactions (65.5 percent or 117 turtles/over three years), BFT discards (38 percent or 614 discards/over three years), swordfish discards (31.9 percent or 11,718 discards/over three years), and bigeye tuna discards (84.8 percent or 853 discards/over three years).

Other alternatives, such as alternative B2(b), which would close a much smaller area in the Northeastern United States, could have greater benefits in terms of the number of BFT discards reduced. Although alternative B2(b) is not considered a BFT spawning area, data from the POP program indicate that large fish (>171 cm TL) are present in the area. Additionally, there is evidence to indicate that the area is utilized as a feeding and staging area by BFT prior to migrating to the Gulf of Mexico to spawn (Block et al., 2005). Hence, while NMFS recognizes that the same proportion of western spawning BFT would not be protected from a closure in the Northeast as one in the Gulf of Mexico, potentially a small proportion of western spawning-size BFT could be protected by a closure like B2(b), especially given the prevalence of larger individuals in Northeast area from the POP data. Therefore, a closure like B2(b) may be able to protect a few spawning-size individuals as well as pre-spawners, or sub-adults, which are also valuable age classes with regard to the stock (although, presumably, there is a mixture of eastern and western origin fish in this area, and a closure in this area may protect sub-adults of western as well as eastern origin). Furthermore, the total proportion of dead discards in the Northeast was similar to the Gulf of Mexico. In the Northeast, 48 percent (219 out of 461) of all BFT discards from 2001 - 2003 were discarded dead, whereas 53 percent (249 out of 470) of all BFT discards from the Gulf of Mexico were discarded dead. Given the high number of BFT discards in the Northeast, a smaller closure there may provide similar ecological benefit compared with a closure in the Gulf of Mexico (depending on post-release survival rates in the two areas), and would minimize the economic impacts on the fleet.

NMFS will continue to pursue alternatives to reduce bycatch of spawning BFT. NMFS has adopted all of the ICCAT recommendations regarding BFT, a rebuilding plan is in place domestically for this species, and NMFS has implemented measures to rebuild this overfished stock. NMFS is currently trying to assess how protecting one age class at the potential detriment of other age classes will affect the fish stock as a whole. For instance, how will protecting spawning BFT help rebuild the stock if it results in increased discards of non-spawning adults, juveniles, and sub-adult BFT along the eastern seaboard? Therefore, more information is needed to further understand how to manage this species given its complex migratory patterns, life history, and age structure. As described above in Comment 2, NMFS is also considering developing incentives that would dissuade fishermen from keeping incidentally caught BFT, particularly spawning BFT in the Gulf of Mexico.

Comment 7:

NMFS received several comments regarding the biology of spawning BFT in the Gulf of Mexico. These comments included: the management measures currently in place do not protect spawning BFT or create the conditions necessary for BFT to survive, reproduce, and increase their population; under current U.S. regulations, almost half the BFT landed by longline fishermen come from the Gulf of Mexico when spawning fish are present which results in a significant de facto directed fishery; warm water in the Gulf of Mexico poses particular risks to BFT captured on longline gear due to the physiological stress caused in warm, low oxygen waters; and the spawning fish in this time and place are more valuable to the population than at other times of year.

Response:

Although NMFS does not prefer alternative B2(c), or any other closure specific to spawning BFT in the Gulf of Mexico at this time, NMFS plans to pursue alternatives to reduce bycatch in the Gulf of Mexico, especially for spawning BFT. Such actions could improve international rebuilding efforts of this species. NMFS is also considering developing incentives that would dissuade fishermen from keeping incidentally caught BFT, particularly spawning BFT, in the Gulf of Mexico. This may involve research on how changes in fishing practices may help reduce bycatch of non-target species as well as the tracking of discards (dead and alive) by all gear types. In addition, sea surface temperatures in the Gulf of Mexico have recently been thought to be associated with congregations of BFT and putative BFT spawning grounds in the Gulf of Mexico (Block, pers. comm.). NMFS intends to compare sea surface temperature data and logbook and/or observer data in order to investigate the variability associated with sea surface temperatures as well as the temporal and spatial consistency of the association of BFT with these temperatures regimes. For this investigation, NMFS will use existing data and will likely work with scientists to collect additional data and/or conduct experiments, as needed. By better understanding what influences the distribution of BFT in the Gulf of Mexico, NMFS can tailor management measures over space and time to maximize ecological benefits while minimizing economic impacts, to the extent practicable.

Comment 8:

NMFS should outline the methods and mortality rates used to estimate dead discards as reported to ICCAT, and comment on the likely associated uncertainty. The current regulations are failing to implement key provisions of the ICCAT rebuilding plan, in violation of ATCA. The model used by NMFS in its Draft Consolidated HMS FMP assumes that the reproductive value of western Atlantic BFT in the Atlantic Ocean off the northeastern United States later in the year is equivalent to that of BFT from March-June in the Gulf of Mexico. This is a faulty and risky assumption. Does the analysis in the Draft Consolidated HMS FMP take into account the current low stock status of western Atlantic BFT? The Draft Consolidated HMS FMP

is flawed when it does not prefer closing BFT spawning grounds because it erroneously analyzes the closure primarily with regard to minimizing bycatch to the extent practicable. In fact, the primary legal duty falls under the need to rebuild the western Atlantic BFT population in as short a period of time as possible. Overfishing continues at high rates and the model used for the rebuilding program is unrealistically optimistic.

Response:

The estimates of discards used in the analyses include both live and dead discards, as reported by fishermen in logbooks. While NMFS ultimately used logbook data for the time/area analyses, NMFS also compared estimates of discards from the POP data. As described in the responses to comments 31 and 32 of this section, NMFS did not develop mortality estimates from the data. Rather, NMFS evaluated percent change in total discards as the measure of the effectiveness of potential time/area closures. NMFS disagrees that the current regulations are failing to implement provisions of the rebuilding plan. NMFS has adopted all of the ICCAT recommendations regarding BFT, a rebuilding plan is in place domestically for this species, and NMFS has implemented measures to rebuild this overfished stock. For the PLL fishery, fishermen are not allowed to target any BFT regardless of the size of the BFT. Thus, the model used by NMFS to calculate discards in the PLL fishery did not make any assumptions about the reproductive value of BFT caught in the PLL fishery. Rather, the intent of examining different closures was to maximize the potential reduction in bycatch of the PLL fishery for the greatest number of species, while minimizing losses in target catch in the PLL fishery.

Comment 9:

NMFS received a comment that the area in the “Nature” journal study extends beyond the U.S. EEZ and so should the time/area closure considered in the Draft Consolidated HMS FMP. There is no legal reason to limit the closure to the U.S. EEZ.

Response:

While NMFS has analyzed closures beyond the U.S. EEZ (e.g., the Northeast Distant closed area) in the past, except for two relatively small areas, the U.S. EEZ in the Gulf of Mexico abuts the Mexican EEZ. U.S. fishermen are not allowed to fish in the Mexican EEZ, and NMFS does not have the legal authority to regulate foreign fisheries that operate outside of the U.S. EEZ. As such, the analyses in the Final HMS FMP were limited to the U.S. EEZ in the Gulf of Mexico utilizing logbook and POP data from the U.S. PLL fishery. Data that includes fishing effort in other countries EEZs would be included in any analyses conducted by ICCAT, as needed.

Comment 10:

Demographics in the Gulf of Mexico have changed due to last summer's hurricanes. No one knows what the impacts of that will be. NMFS should not rush into changes in the Gulf of Mexico that are not necessary.

Response:

NMFS is aware that there have been significant impacts in the Gulf of Mexico as a result of the 2005 hurricanes, which may take time to be fully realized. After carefully reviewing the results of all the different time/area closures analyses, and in consideration of the many significant factors that have recently affected the domestic PLL fleet, NMFS does not prefer to implement any new closures, except the complementary measures in the Madison-Swanson and Steamboat Lumps closed areas at this time. As described above in the response to Comment 2 in this section, this decision is based on a number of reasons including the potential impacts of the hurricanes on the PLL fleet.

iii. White Marlin

Comment 11:

NMFS received several comments in support of additional time/area closures to protect white marlin. Comments included: NMFS should consider a closure for white marlin in the mid-Atlantic; NMFS has never implemented a time/area closure for PLL fishing specifically to reduce blue and white marlin, or sailfish bycatch even though exceedingly high levels of bycatch occur; and NMFS must reduce marlin bycatch by closing areas to longline fishing when and where the most bycatch continues to occur to avoid a white marlin ESA listing.

Response:

While NMFS has never implemented a closure to specifically reduce bycatch of blue and white marlin, current closures (the Northeastern U.S. closure, the DeSoto Canyon closure, the Charleston Bump, the East Florida Coast closures, and the Northeast Distant closed area) have resulted in large decreases in blue and white marlin discards from PLL gear, and billfish were considered in the analyses of these closures. Percent change in discards from the HMS logbook data before (1997 - 1999) versus after (2001 - 2003) the closures that were implemented showed an overall 47.5 percent decrease in white marlin discards and an overall 50.3 percent decrease in blue marlin discards. In addition, NMFS banned live bait in the Gulf of Mexico for PLL vessels to help reduce billfish bycatch on August 1, 2000 (65 FR 47214). In the Draft Consolidated HMS FMP, NMFS considered areas specifically for white marlin, per a settlement agreement relating to white marlin (

Center for Biological Diversity

v.

NMFS

, Civ. Action No. 04-0063 (D.D.C.)). Based on the HMS logbook and POP data from 2001 - 2003, potential time/area closures, other than the areas outlined in the settlement agreement, were predicted to result in larger ecological benefits for all of the species considered, including white marlin. Ultimately, NMFS chose to further analyze time/area closure boundaries that included the areas of highest interactions for a number of species. However, based on the results of these analyses and for the reasons discussed under the response to Comment 2, NMFS chose not to implement any new closures at this time beside the complementary measures in the Madison-Swanson and Steamboat Lumps Marine Reserves.

Comment 12:

NMFS received a number of comments on alternative B2(c) including: Alternative B2(c) corresponds to the location of significant incidental catches of white marlin and leatherback sea turtles, so NMFS should consider that area for closures, effort restrictions, or stricter gear requirements rather than be paralyzed in the search for a single time/area closure that will address all bycatch reduction needs for more than a dozen species; NMFS should consider closed areas in the western Gulf of Mexico because that is where marlin are being killed; Alternative B2(c) should be closed from June through August to protect the greatest abundance of billfish in the Gulf of Mexico; the Draft Consolidated HMS FMP does not propose a closure big enough or long enough to meaningfully reduce billfish bycatch; U.S. and Japanese data show that the bycatch of billfish is higher in the Gulf of Mexico than in any other part of the commercial fishery, and the closures to protect blue and white marlin in the Gulf of Mexico could save more of these species than any other closure in the entire United States, yet NMFS did not consider that there would be enough positive impact to consider implementing a closure.

Response:

As described above in Comment 6 of this section, NMFS examined alternative B2(c) specifically in response to a petition for rulemaking regarding protection of spawning BFT. Under the full redistribution of fishing effort model for B2(c) (fishing effort distributed to all open areas), NMFS predicted an increase in white marlin discards (7.0 percent or 221 discards/over three years; annual estimates can

be found by dividing by three), blue marlin discards (2.0 percent or 50 discards/over three years), sailfish discards (4.4 percent or 45 discards/over three years), loggerhead sea turtle interactions (23.5 percent or 42 turtles/over three years), BFT discards (9.8 percent or 158 discards/over three years), swordfish discards (6.0 percent or 2,218 discards/over three years), and bigeye tuna discards (1.7 percent or 18 discards/over three years). Under the second scenario of redistributed effort (redistribution in the Gulf of Mexico and Area 6), NMFS predicted increases in blue marlin discards (0.7 percent or 20 discards/over three years), sailfish discards (21.7 percent or 283 discards/over three years), spearfish discards (2.0 percent or 10 discards/over three years), large coastal sharks (12.8 percent or 2,454 discards/over three years), swordfish tuna discards (5.0 percent or 2,109 discards/over three years), and bigeye tuna discards (0.6 percent or 7 discards/over three years). Although white marlin discards were predicted to decrease under the second scenario evaluated (by 2.6 percent or 98 discards/over three years), there were potential negative ecological impacts of B2(c) for other species considered under the different scenarios of redistributed effort. Therefore, NMFS does not prefer alternative B2(c) at this time.

Based on a submission by the Japanese at ICCAT on BFT management (Suzuki and Takeuchi, 2005), the proposed closures and subsequent ecological benefits were based on closing the entire Gulf of Mexico and did not consider redistribution of fishing effort. As described above in Comment 9 of this section, NMFS has no jurisdiction to close the Mexican EEZ, and U.S. PLL vessels are prohibited from fishing in the Mexican EEZ. NMFS also believes it is critical to consider the redistribution of fishing effort before implementing management measures, such as time/area closures, because potential increases in discards and bycatch can result from time/area closures as effort is moved to remaining open areas. Additionally, as described above in the response to Comment 3 and elsewhere in this document, NMFS is considering future management measures to minimize bycatch of non-target HMS in the Gulf of Mexico.

Comment 13:

Longlining should be banned off the East Coast from June to September when white marlin are present in this area.

Response:

NMFS currently has several closures along the eastern seaboard specifically for pelagic and bottom longline. These consist of the Northeastern United States closed area, which is closed to pelagic longlining during the month of June; the mid-Atlantic Shark Closure, which is closed from January through July to bottom longline gear; the Charleston Bump closed area that is closed to PLL gear from February through April; and the East Florida Coast closure that is closed year-round to PLL gear. The Florida East Coast (FEC), the Mid-Atlantic Bight (MAB), and the Northeastern Coastal (NEC) statistical reporting areas cover the extent of the U.S. Atlantic PLL logbook reporting areas along the East Coast. Comparing the number of discards for the months of July through December between the pre-closure period 1997 - 1999 and the period 2001 - 2003, when closures were in effect, reported landings of white marlin decreased by 95.4 percent in the FEC, 53.4 percent in the MAB, and 77.8 percent in the NEC. Therefore, while NMFS has not implemented a closure for white marlin specifically along the East Coast, data show a substantial decrease in white marlin discards likely resulting from the current time/area closures along the eastern seaboard.

iv. Current Closed Areas

Comment 14:

NMFS received several comments regarding the East Florida Coast closed area. These comments are: NMFS should prohibit all commercial fishing for swordfish in the East Florida Coast closed area; NMFS should eliminate all commercial shark fishing in the East Florida Coast closed area; NMFS should impose a 20-mile limit for the entire East Florida Coast that would prohibit commercial fishing in the area; NMFS should set a policy for the East Florida Coast closed area that allows for recreational swordfish hook and line fishing for a three to four month period or adopt management measures that allow for recreational swordfish hook and line fishing only on an every other year basis; NMFS needs to protect the Florida east coast because it is a nursery area for juvenile swordfish; NMFS should re-adjust the offshore border of the East Florida Coast Closed Area to allow PLL vessels a reasonable opportunity to harvest its ICCAT quotas; and, NMFS should reopen the offshore border because the inshore and Straits of Florida portions that will remain closed afford adequate ongoing protection for undersized swordfish and other bycatch.

Response:

NMFS closed the East Florida Coast closed area to PLL gear effective in 2001 (August 1, 2000, 65 FR 47214) in order to reduce bycatch of HMS and other species by PLL gear. One reason NMFS closed that area was because it is a swordfish nursery area and many of the swordfish being caught by PLL fishermen were undersized and therefore discarded dead. However, the goal of the closures was to reduce bycatch in general in the PLL fishery, and analyses conducted for that rulemaking also indicated that closing the area to PLL gear would reduce bycatch and discards of other species as well. The closure was not intended to be for all commercial fishing or to be permanent. Nor was the closure meant to allow only recreational fishing in that area. Because the area is a swordfish nursery area, it is likely that any fishing gear in that area, particularly those fishing for swordfish, will catch undersized swordfish that must be discarded, as well as juvenile swordfish that meet the legal minimum size. The criteria in this final rule will allow NMFS to consider closing the East Florida Coast to other gears to reduce bycatch or for other reasons, or to modify the closed area to PLL gear to either expand or reduce it, as needed. NMFS considered modifications to the closed area to allow PLL fishermen into an area that they claimed had swordfish larger than the minimum size. The analyses for this rulemaking concluded that swordfish in the potential re-opened area are significantly larger than those in the remaining closed area; however, the analyses also indicated potential increases in marlin bycatch. For this reason and others, NMFS is not modifying the East Florida Coast closed area at this time. NMFS may consider changes to that area or to the gears allowed to fish in that area in future rulemakings.

v. Modifications to Current Closed Areas

Comment 15:

NMFS received comments supporting and opposing modifications of the existing HMS time/area closures to allow additional fishing effort into these areas. Comments in support of modifying the existing closures include: the existing time/area closures to protect small swordfish are no longer needed and should be reduced in size and/or duration or eliminated all together; NMFS inaction to adjust the offshore closure borders prevents U.S. fishermen from having a reasonable opportunity to harvest its ICCAT quota share, contrary to ATCA and the Magnuson-Stevens Act; NMFS needs to re-examine the area closures and provide immediate modifications to at least some areas. Other areas may require a period of heightened monitoring to determine the effects of new circle hook gear and careful handling/release procedures; NMFS should continuously monitor whether

the existing closed areas are having the desired effect to determine whether modifications can occur; NMFS should reevaluate the PLL gear time/area closures for their necessity and effectiveness and redevelop these closures to include prohibiting all HMS hook and line fishing if the biological justification warrants retaining any such closures; NMFS should consider modifying the offshore borders of existing closures in several areas where the deeper depth contours provide relatively clean directed fishing; NMFS should have considered modifying the Desoto Canyon; opening the area offshore of the 250 fathom curve in the Desoto Canyon could benefit YFT fishermen; and if NMFS allows vessels into closed zones by using Vessel Monitoring Systems (VMS), then VMS should also be used to implement and enforce additional new closures that follow oceanic bottom contour lines. Comments opposed to modifying the existing HMS closures include: NMFS should not rely on old logbook data to modify existing closures; the existing closures should not be modified; NMFS should not consider areas that may serve as nursery areas for North Atlantic swordfish; NMFS should not consider opening the DeSoto Canyon areas to longlining because this would adversely affect the health of the fisheries ecologically and would prove detrimental to the economic interests of the commercial fleet; and, the figures in this section show longline sets after the 2000 closure of the Desoto Canyon and the harvest of BFT dead discards, which is illegal, so how do individuals make these sets and record them in the logbook?

Response:

NMFS considered modifications to the current time/area closures, including modifications to the DeSoto Canyon, and is continuously monitoring the effectiveness of the current closures. As described above in the response to Comments 4 and 5 and elsewhere in this document, an analysis of pre-closure and post-closure data indicate that the existing closures have effectively reduced the bycatch of protected species and non-target HMS, and provided other positive ecological benefits. The analysis also indicated that none of the modifications would have increased the retained catch enough to alleviate concerns about portions of the swordfish quota remaining uncaught. Specifically for the DeSoto Canyon, NMFS considered modifying the existing DeSoto Canyon time/area closure boundary to allow PLL gear in areas seaward of the 2000 meter contour from 26° N lat., 85°00′ W long., to 29° N lat., 88°00′ W long. (alternative B3(d)). However, the average swordfish size was significantly smaller in the area to be reopened (average size = 108 cm LJFL) compared to the area to remain closed (average size = 116 cm LJFL; P = 0.03). Both average swordfish sizes are smaller than the minimum size limit of 119 cm LJFL. Therefore, NMFS believes that modifying the Desoto Canyon closure could increase swordfish discards. In addition, new circle hook management measures were put into place in 2004, and NMFS is still assessing the effects of circle hooks on bycatch rates for HMS. Until NMFS can better evaluate the effect of circle hooks on bycatch reduction, especially with regards to protected species interaction rates, the Agency is not modifying the current time/area closures. Furthermore, as described in the response to Comment 14 above, the current time/area closures were established to reduce bycatch of more than just swordfish. Nonetheless, if the upcoming ICCAT swordfish stock assessment indicates the species is rebuilt, NMFS may reconsider modifying the existing closures taking into consideration things such as the impact of circle hooks and protected species interaction rates. Finally, while VMS can provide NMFS with information that allows a vessel to transit a closed area, closed areas with boundaries that track oceanic contour lines would often be too irregularly shaped to be easily enforced despite the use of VMS. Geometric coordinates greatly aid in enforcement of time/area closures.

The baseline that NMFS has used to calculate bycatch reduction associated with current time/area closures is the U.S. Atlantic HMS logbook data just prior to the implementation of the closures (1997 - 1999). NMFS feels this best reflects the status of the stocks at the time of the closures and more current data is not available because PLL gear has been prohibited in these areas since 2000 or 2001, depending on the closure. The figures referred to by the commenter (Figures 4.3 and 4.8 in the Draft Consolidated HMS FMP) incorrectly showed all of the 1997 - 1999 reported sets rather than the intended 2001 - 2003 reported sets. The figures have been corrected. Very few, if any, sets have been reported in the Desoto Canyon since 2000. The figures in the Final Consolidated HMS FMP only show where BFT discards occurred for PLL vessels from 2001 through 2003. NMFS also implemented the use of a vessel monitoring system (VMS) for all PLL vessels on September 1, 2003 (68 FR 45169). With this monitoring system, NMFS has been able to determine if PLL vessels are placing sets in closed areas. VMS has helped alert enforcement of illegal activities occurring in closed areas under real time conditions, which has led to prosecution for illegal fishing in closed areas.

Comment 16:

We support a modification of the area described in alternative B3(a) (modifications to the Charleston Bump closed area). While the analysis shows a negligible amount of bycatch, there is an opportunity for catching marketable species for boats that are struggling and need access to this area; we support a modification of the area described in alternative B3(b) (modifications to the Northeastern U.S. closed area) because this area should never have been closed in the first place; the entire June BFT closure area should be reevaluated in light of all the mandatory bycatch reduction measures and the inability to harvest the U.S. BFT quota in recent years.

Response:

NMFS analyzed both alternatives B3(a) and B3(b). The analyses indicate that alternative B3(a) would increase swordfish catch by 1.1 percent and yellowfin tuna catch by 0.16 percent. However, it could increase the bycatch of sailfish (3.0 percent), spearfish (2.4 percent), and white marlin (2.0 percent). Alternative B3(b) would cause a minimal increase in bycatch, with only a minimal increase in retained catch based on 1997 - 1999 data (i.e., 3 swordfish, 1 BFT, and 1 BAYS tuna (numbers of fish)). Therefore, NMFS is not implementing alternatives B3(a) and B3(b) because neither alternative would increase retained catches enough to alleviate concerns over uncaught portions of the swordfish and BFT quotas. As described in the response to Comment 2, NMFS is not implementing any new closures, except for the Madison-Swanson and Steamboat Lumps, or modifying any existing closures. NMFS may consider changes to the current time/area closures in a future rulemaking depending upon the results of the circle hook analyses, the 2006 ICCAT stock assessments (BFT, swordfish, and billfish), protected species interaction rates, and the other criteria described in this final rule.

vi. Madison-Swanson/Steamboat Lumps

Comment 17:

NMFS received contrasting comments regarding preferred alternative B4 (implement complementary HMS management measure in Madison-Swanson and Steamboat Lumps Marine Reserves) including: I support preferred alternative B4 and the maintenance of

the existing closures; the Agency appears to be acting positively on the Gulf of Mexico Fishery Management Council's request for complementary closures; I support this alternative even though this will have virtually no significant impact on HMS fisheries because the area is so small; I support alternative B4 because it will make enforcement easier; we support alternative B4 with the following edit, “Maintain existing time/area closures and implement complementary November through April (6 months) — Preferred Alternative”; and we do not support complementary closures with Madison-Swanson and Steamboat Lumps - the PLL industry has had to withstand numerous stringent measures in recent years and cannot withstand any additional closures.

Response:

NMFS is implementing alternative B4, complementary HMS management measures for the Madison-Swanson and Steamboat Lumps Marine Reserves, at the recommendation of the Gulf of Mexico Fishery Management Council. These closures were designed primarily to protect spawning aggregations of gag grouper and other Gulf reef species. Similar management measures are already in effect for holders of southeast regional permits. The complementary HMS management measures would close any potential loopholes by extending the closure regulations to all other vessels that could potentially fish in the areas and/or catch gag grouper and other reef fish as bycatch (e.g., HMS bottom longline vessels). As a result, this action is expected to improve the enforcement of the Madison-Swanson and Steamboat Lumps Marine Reserves. Only minor impacts on HMS fisheries, including the PLL fishery, are anticipated because the marine reserves are relatively small, and little HMS fishing effort has been reported in these areas. The suggested edit to the title of this alternative is appreciated, but is not necessary because the existing closures will remain in effect by default, absent additional action to remove or modify them.

vii. Criteria/Threshold/Baseline

Comment 18:

NMFS received several comments on using the criteria on current closures including: NMFS should have created these criteria when establishing the closed area off NC - NMFS then could have modified the economic impacts to the NC directed shark fishermen by having flexibility to reduce the time and area of the current closed area; and all existing closed areas should be immediately re-evaluated in terms of the new criteria.

Response:

NMFS used many of the criteria when establishing the current time/area closures. NMFS is implementing the criteria to clarify the decision-making process and to inform constituents about what NMFS would consider before implementing new time/area closures or modifying current time/areas closures. In addition, in this rulemaking, NMFS evaluated the impacts of most of the current time/area closures in the No Action alternative, B1, and the impacts of modifying four current time/area closures. Thus, NMFS has already re-evaluated some of the current time/area closures using the criteria. Once the criteria are implemented, NMFS would continue using them in future rulemakings. The only time/area closure that was not re-evaluated during this rulemaking was the mid-Atlantic shark closure off North Carolina. NMFS did not re-evaluate this closure because, as described in the response to a petition for rulemaking from the State of North Carolina (October 21, 2005; 70 FR 61286), the closure became effective in January 2005, and NMFS did not have any additional information on which to reevaluate the conclusions of the rulemaking that established the closure (December 24, 2003; 68 FR 74746). However, when NMFS established the mid-Atlantic shark time/area closure, the Agency considered the social and economic impacts on directed shark fishermen, while also balancing reductions in the catch of juvenile sandbar sharks, the bycatch of prohibited dusky sharks, and the quota throughout the entire large coastal shark fishery. As described in this rulemaking and in previous rulemakings, the primary goals of time/area closures are to maximize the reduction of bycatch of non-target and protected species while minimizing the reduction in the catch of retained species. NMFS believes that the mid-Atlantic shark closure should accomplish these goals even though there may be negative economic impacts as a result of that closure. Once the results of the ongoing LCS and dusky shark stock assessment are finalized, NMFS may consider whether changes to any management measures are appropriate regarding LCS, including dusky sharks, and may reconsider the mid-Atlantic closed area in a future rulemaking using the criteria being implemented in this final rule.

Comment 19:

NMFS received several comments regarding research and closed areas including: NMFS should support additional research to determine where other closed areas should be placed; NMFS should collect data for use in establishing such criteria in open areas to the maximum extent possible; and there must be overwhelming reason to pay fishermen to use illegal gear in a closed area in the name of research (while still being able to sell their catch) when such studies could just as easily be performed in vast areas of the oceans where it is legal to fish in that manner.

Response:

NMFS supports research to determine how changes in fishing gear and/or fishing practices can reduce bycatch. Research in closed areas to test how changes in fishing gear and/or fishing practices may reduce bycatch is particularly important. Due to the spatial and temporal variability of HMS and the species that HMS interact with, the results of experiments in open areas may not always be applicable to closed areas. Oftentimes, these areas are “hot spots” and were closed because they are areas with high congregations of HMS or other species. These congregations usually occur along bathymetric contour lines or areas where currents interact. In order to scientifically test if a certain change in the gear would result in a significant reduction in bycatch, scientists may need to work in areas where there is a high degree of certainty that the gear will interact with the bycatch species. Testing for bycatch reduction in areas where there is little to no bycatch would likely require more monetary resources, fishermen, and time, compared with areas that are considered “hot spots.” Scientists often conduct preliminary tests in open areas to ensure that the changes in gear or fishing methods being considered could work, but they may need access to closed areas at some point to make certain that the expected results are actually realized. Otherwise, NMFS might reopen a previously closed area in light of technological advances in bycatch reduction but not see the expected reduction in bycatch rates, or potentially see an increase in bycatch rates.

Comment 20:

NMFS received comments regarding the specific criteria that NMFS should consider when examining potential area closures including: the criteria should include the status of the stock in each area under consideration; the criteria should include bycatch baselines, targets, reduction timetables, and consider impacts on all HMS, with an emphasis on overfished species; what percent reduction in discards is required to implement a time/area closure, and on what basis is this threshold determined? What is the threshold that the Agency is trying to achieve? There are no standards; was a target bycatch reduction level identified; the Agency

should quantitatively use an optimization model to combine areas to achieve the optimum benefit; these criteria should be developed in a workshop including managers, scientists, and stakeholders to ensure their success; the discussion of how specific criteria would be developed, reviewed, and authorized is vague; overall the criteria seem to restrict NMFS' use of discretion in using closed areas as part of a comprehensive strategy to reduce bycatch and ensure sustainable ecosystems; and NMFS should preserve the availability of the greatest range of options to address its fisheries management, protected resources, and marine ecosystem conservation responsibilities.

Response:

NMFS already considers the status of the stocks when implementing time/area closures. Closed areas like the Northeastern United States closed area, the mid-Atlantic shark closed area, and the Northeast Distant closed area were all implemented to address specific overfished or protected species. The other closed areas, which were implemented to reduce bycatch in general, also considered the status of the stocks before implementation.

Establishing pre-determined thresholds or target reduction goals for specific species, as requested in this comment, is not appropriate because it does not consider the impact on the remaining portion of the catch. Consideration of the overall catch is critical when implementing a multispecies or ecosystem-based approach to management. Furthermore, while the Magnuson-Stevens Act provides NMFS with the authority to manage all species, NMFS must balance the impacts of management measures on all managed species. National Standard 1, which requires NMFS to prevent overfishing while achieving on a continuing basis, the optimum yield from each fishery for the United States fishing industry, clearly applies to all species and all fisheries. Similarly, National Standard 9, which requires NMFS to minimize bycatch and bycatch mortality to the extent practicable, applies to all species and fisheries. By choosing not to implement specific thresholds or a decision matrix, NMFS retains the flexibility to balance the needs of all the species encountered with the fishery as a whole. If NMFS must manage a fishery to achieve a specific goal (e.g., a jeopardy conclusion regarding the PLL fishery and leatherback sea turtles), this flexibility allows NMFS to close certain areas or take other actions to achieve that goal while also protecting, to the extent practicable, the other species and the rest of the fishery. Without this flexibility, NMFS might potentially have to implement more restrictive measures to protect one species causing potential cascade effects (e.g., closing one area may increase the bycatch of another species, which could result in closing another area, etc.).

This flexible approach also provides NMFS with the ability to re-examine the need for existing closures and modify them appropriately based on the analyses rather than the attainment of a specific goal (e.g., NMFS would not have to wait for 30 percent reduction in bycatch to be met; it could open the closure at 25 percent, depending on the result of reducing bycatch of other species or other considerations, as appropriate). The present criteria do not preclude NMFS from establishing a decision matrix in the future if it could provide the flexibility necessary to consider all of the species involved. This may be more appropriate when NMFS has a longer temporal dataset on the simultaneous effect of circle hooks and the current time/closures. At this time, NMFS believes that the criteria contained in the preferred alternative B5 would provide the guidance needed, consistent with the Magnuson-Stevens Act and this FMP, to help NMFS make the appropriate decisions regarding the use of time/area closures in HMS fisheries. NMFS developed the criteria to help make the overall process of implementing and/or modifying current time/area closures more transparent, not more vague. While NMFS did not hold a workshop on these criteria, they were considered by multiple stakeholders during the scoping and public comment period for this rule and subsequently refined, as appropriate.

Comment 21:

NMFS received many comments regarding the use of criteria to open or modify closed areas. These comments included: criteria are needed to allow for modifications of the closed areas; I cannot support the preferred alternative B5, area closure framework alternative, because it could allow NMFS to open existing closures; changes to existing closed areas must, at a minimum, be conservation neutral; we need a mechanism to open or modify closed areas; the present closures appear to be larger or different from what is necessary; to go through the entire regulatory process to change or eliminate the closures takes too long and is too costly for both the government and the fishery.

Response:

NMFS already has the authority to modify current closed areas once NMFS determines that a closed area has met its original management goal. The existing time/area closures were not meant to be permanent closures. Rather, each closure was implemented with a specific management goal(s) in mind. Once those goals are met, NMFS may decide to modify or remove the time/area closure. Through the implementation of the criteria, and using the appropriate analyses, NMFS would be able to modify the current time/area closures in a more timely and transparent manner. No changes were made to existing time/area closures at this time because such modifications could potentially result in bycatch of non-target HMS and protected resources, such as sea turtles. However, once NMFS better understands the effects of circle hooks, which were implemented fleet-wide in mid-2004, on all species, NMFS may consider modifying the current time/area closures. Such modifications would need to be either conservation neutral or positive.

Comment 22:

Since the East Florida Coast, Charleston Bump, and DeSoto Canyon closures went into effect, bycatch and fishing effort has been reduced. Those three closures achieved a greater than predicted reduction in bycatch. NMFS should use the year before the closures went into effect as a baseline to determine what the existing management measures have produced, rather than taking additional actions and expecting the bycatch to continually diminish. NMFS could modify closures and allow increases in bycatch up to the reductions expected as a result of the analyses that closed those areas. This would reduce the economic impacts on fishermen.

Response:

NMFS agrees that the current closures reduced the bycatch of most species more than predicted by the analyses in the rulemaking that originally closed the areas. NMFS used data just prior to the implementation of these closures (i.e., logbook data from 1997 - 1999) because the Agency felt this time series best represented the status of the stocks at the time the closures were implemented. NMFS considered modifications to these areas in this rulemaking. However, the current analyses indicated that bycatch of some species, such as marlin and sea turtles, could increase as a result of those modifications. Given the status of marlin and the jeopardy finding on leatherback sea turtles, NMFS believes that increases in the bycatch of those species are not appropriate. Additionally, the analyses in this rulemaking are based on mostly J-hook data, which are no longer in use in the fishery. NMFS will continue to monitor the effectiveness of the closures and

may consider modifications in the future, particularly as the amount of circle hook data increases.

viii. Fleet Mobility/Redistribution of Effort

Comment 23:

NMFS received several comments regarding the mobility of the fleet. These comments included: I do not believe that effort will move to the Atlantic Ocean from the Gulf of Mexico; commercial fishermen would rather stay home and fish for other species rather than relocate great distances; longline vessels are tied to communities; given rising fuel prices, an increase in long distance relocation seems unlikely; NMFS states that Vietnamese fishermen are reluctant to fish outside the Gulf of Mexico and uses this statement to conduct a separate analysis specific to the Gulf of Mexico, but NMFS applied the assumption to the analysis of only one alternative in the Gulf of Mexico when it should be applied to all GOM alternatives; how does the 2001 NMFS VMS study support conducting a fleet-wide analysis when the majority of effort is in or adjacent to the homeport fishing area?

Response:

To determine fleet mobility, NMFS relied on its analyses described in a 2001 report that NMFS submitted to the U.S. District Court in response to a lawsuit filed by the fishing industry against NMFS for implementing the vessel monitoring system (VMS) requirement. That document indicated that fishermen were as likely to fish in areas away from their homeport as in areas immediately adjacent to their homeport, even without the added pressure of a closure in an area adjacent to their homeport. In addition, NMFS conducted a separate analysis in the Draft Consolidated HMS FMP for alternative B2(a) that limited the redistribution of effort in the Gulf of Mexico. This separate analysis was conducted because the area in alternative B2(a) was the smallest of the three closures considered in the Gulf of Mexico and, therefore, represented the most likely case in which fishermen would remain in the Gulf of Mexico. Because there would still be open areas in the Gulf of Mexico during this period (May through November), fishermen might be more likely to fish in those areas rather than relocate fishing effort to the Atlantic Ocean. NMFS also recognized that Vietnamese fishermen are reluctant to fish outside of the Gulf of Mexico, especially for a small time/area closure. Such limited redistribution of effort was not appropriate for other closures in the Gulf of Mexico because of their larger geographic size and longer temporal duration.

However, NMFS further analyzed fleet mobility in the current rulemaking by examining logbook data from 2001 - 2004 (this included only the first six months of 2004 to include only J-hook data) to determine the amount of vessel movement along the Atlantic coast and into the Gulf of Mexico. The data indicated that vessels moved out of the Gulf of Mexico, and that vessels sometimes fished as far away as the central Atlantic. Similarly, in the Atlantic, some vessels fished in areas far from their homeports, although movement from the Atlantic Ocean into the Gulf of Mexico was minimal. Additionally, there were no physical differences in terms of length or horsepower between vessels that fished inside or outside the Gulf of Mexico. Thus, NMFS concluded that HMS vessels continue to be highly mobile, are capable of fishing in areas distant from their homeports, and that the closure analyses would need to take into account the potential for redistribution of fishing effort, particularly for a potentially large closure such as B2(c) in the Gulf of Mexico. Based on this additional analysis of fleet mobility, NMFS considered different scenarios of redistribution of effort for alternatives B2(a), B2(b), and B2(c). Each scenario made different assumptions regarding where effort would redistribute, based on the current fleet's movement. However, NMFS recognizes that the increased cost of fuel and other supplies may limit the amount of movement by the pelagic longline fleet.

Comment 24:

NMFS received comments regarding the redistribution of fishing effort model used to analyze the time/area closure alternatives. Comments included: Does the model assume random distribution to other fishing grounds?; how does the redistribution of effort model result in more bycatch?; how does the redistribution of effort model work with circle hooks?; the model is based on discard rates, which implies some mortality.

Response:

NMFS considered a broad range of time/area closure alternatives that estimated potential bycatch with and without redistribution of fishing effort. Considering the impacts of closures with and without redistribution of effort provides NMFS with the potential range of changes in catch that could occur as a result of the closure(s). One end of the range assumes that all fishing effort within a given closed area would be eliminated (i.e., fishermen who fished in the closed area would stop fishing for the duration of the closure). Thus, the number and percent reduction in catch of both non-target and target species in these analyses represents the highest possible expected reduction. This would also represent the greatest negative social and economic impact that is anticipated for the industry. The other end of the spectrum assumes that all fishing effort in a closed area would be distributed to open areas (i.e., fishermen would continue fishing in surrounding open areas, move their businesses closer to open areas, or sell their permits to fishermen closer to open areas).

Rather than random redistribution, the full redistribution model calculates resulting catch of target and non-target species by multiplying the effort that is being redistributed due to the closure by the average CPUE across all remaining open areas for each species. This amount is then subtracted from the estimated reduction inside the closed area (for a complete description of the methodology used for redistribution of effort, please see Appendix A of the Final Consolidated HMS FMP.) This end of the continuum would be expected to provide the least amount of bycatch reduction for a given closure, depending on the CPUE of each species in all remaining open areas. Oftentimes, this model provides mixed results regarding the ecological, economic, and social impacts because HMS and protected species are not uniformly distributed throughout the ocean. Therefore, a closure in one area might reduce the bycatch of one or two species, but may increase the bycatch of others. Bycatch of a particular species increases if that species is more abundant or more frequently caught (i.e., higher CPUE) in areas outside of the closed area. For example, the analyses indicate that a closure in the central Gulf of Mexico could reduce BFT and leatherback sea turtle discards because CPUE for those species is higher in the Gulf of Mexico than along the eastern seaboard. However, such a closure could increase sailfish, spearfish, and large coastal shark discards because the CPUE for those species is higher outside of the Gulf of Mexico. In reality, the actual result is expected to be between the results obtained from these two different considerations of redistributed effort. In addition, NMFS combined dead and live discards in these analyses, so mortality is accounted for in terms of discards. Given the number of species that NMFS had to consider, there was no single closure or combination of closures that resulted in a reduction of bycatch of all species considered. The data analyzed in the Draft Consolidated HMS FMP (2001 - 2003) and additional

analyses in the Final Consolidated HMS FMP (2001 - 2004, including the first six months of 2004 only) did not include circle hook data. The implementation of the circle hook requirement in June 2004 resulted in a change to the baseline. NMFS needs to fully analyze the circle hook data to determine the extent of bycatch reduction and the effects of post-release mortality resulting from this new gear requirement.

Comment 25:

How is NMFS going to address the peer review comments that found fault with the effort redistribution model?

Response:

Not all of the peer reviewers found fault with the redistribution of effort analysis. For example, one peer reviewer made the following comment:

The time area closure model is based on generally accepted principles in fisheries science. In general such models rely on a set of assumptions related to static patterns of relative abundance at some temporal and spatial resolution, limited consideration of fish movements, and incomplete understanding of the effects of closure areas on redistribution of fishing effort. Nonetheless, such models can provide useful insights for comparisons of alternative management strategies. This is the approach taken within this draft EIS. Twelve combinations of seasonal and spatial closures are evaluated in Section 4.1.2. Without such a model there would be no pragmatic way of comparing the proposed closed areas. In general it is probably safe to assume that the limitations of the model will be comparable across alternatives. Thus the rankings of each alternative should be relatively insensitive to the assumptions.

However, in response to another peer reviewer's comment that NMFS test assumptions and consider other plausible alternatives to the random effort redistribution model, NMFS evaluated different scenarios that made different assumptions regarding where effort would be redistributed in the Final Consolidated HMS FMP, including redistribution of effort in the Gulf of Mexico only for closures in the Gulf of Mexico, redistribution of effort in the Atlantic only for a closure in the Atlantic, and redistribution of effort in the Gulf of Mexico and the Atlantic for closures in the Gulf of Mexico. These scenarios were based on an analysis of the movement of fishing effort out of the Gulf and into the Atlantic. In order to perform this last analysis, NMFS examined logbooks from 2001 - 2004 and tracked the movement of vessels out of the Gulf of Mexico into different areas of the Atlantic. By examining the movement of effort between the Gulf of Mexico and the Atlantic, NMFS was able to modify the existing full redistribution of effort model and apply different proportions of effort to the average CPUEs of species in the different areas. Using these additional analyses, NMFS could ask different questions about the assumptions of the existing model (e.g., should all fishing effort from a closed area be distributed to all open areas or redistributed only within remaining open areas of the Gulf of Mexico).

Comment 26:

The random redistribution of effort model weighs nearby and distant areas equally. This may artificially emphasize distant areas where bycatch rates are higher, and may result in unlikely assumptions about how the effort will shift. This model suggests that Gulf of Mexico vessels are mobile and might fish as far away as Florida but does not suggest that effort is distributed randomly or that significant effort would be displaced to the Northeast. To close or not close an area based on random redistribution of effort is not reasonable. We are concerned about the model given the fact that the data clearly show where concentrations of marlin are caught.

Response:

As described above in the response to Comment 24, the method used to calculate redistribution of effort and the resulting catch of target and non-target species is to multiply the effort that is being redistributed by the average catch rate (CPUE) for each species in all remaining open areas, and subtract it from the estimated reduction inside the closed area (for a complete description of the methodology used for redistribution of effort, please see Appendix A of the Final Consolidated HMS FMP.) In some cases, depending upon the average CPUE in open areas, this approach may emphasize distant areas where bycatch rates may be higher. However, in other cases, low bycatch rates in distant areas would not be a factor. For example, a small closure such as B2(a) in the central Gulf of Mexico might result in fishing effort being displaced into areas immediately adjacent to and surrounding the closed area. NMFS tried to take this into account by analyzing redistribution of effort only in the Gulf of Mexico for alternative B2(a). For larger closures in the Gulf of Mexico such as alternative B2(c), NMFS considered redistribution of effort in the Gulf of Mexico and Atlantic based on known movement of fishing vessels and effort into areas of the Atlantic. Finally, for a closure such as B2(b) located in the Atlantic, NMFS considered redistribution of effort in open areas of the Atlantic only. In all cases, NMFS considered the results of both no redistribution of effort and the full redistribution of effort model and assumed that the actual result of the closure would be somewhere between the results of the two scenarios.

Comment 27:

NMFS needs a probabilistic model for effort redistribution that considers things such as the history of effort.

Response:

NMFS is aware of other models that have investigated redistribution of effort as a result of time/area closures (i.e., random utility models (RUMs) used for the Hawaiian PLL fishery, and a closed area model used by the New England Fishery Management Council (NEFMC) to evaluate closures for the groundfish fishery). These types of models are econometric models, which predict where fishermen will reallocate effort based on maximizing revenues and/or profits. These models were not designed to be used for the current HMS PLL fishery, and in order for either framework to be applicable to a time/area analysis for the Atlantic HMS PLL fishery, NMFS would have to develop a specific model for the PLL fleet based on the current economics, fishing grounds, and fishing effort of the Atlantic HMS PLL fleet. Development of such a model would require considerable additional investment, time, and effort.

At present, NMFS has not developed a probabilistic model that considers the history of effort or other complicating factors (i.e., trip costs, revenues or profits). Prior to developing such a model, NMFS would need to consider the limitations of the Agency, both financially and logistically, to build such a model. For example, despite the fairly straightforward model used in this rulemaking and previous time/area rulemakings to calculate redistribution of fishing effort, many commenters found the procedure confusing or misunderstood the approach and results. This confusion could become even worse if a more complicated model were used. Some models require substantial capital investment for the Agency, years to develop, and years of testing before they can be used. While the model used continues to be the best available science for the PLL fishery at present, NMFS is considering different options to improve the models used to analyze the impacts of time/area closures.

Comment 28:

NMFS has applied the redistribution model beyond its usefulness because the model does not describe where the vessels are likely to go. NMFS places an overemphasis on the dangers of redistribution of effort instead of making balanced recommendations based on both the lower and upper estimates of the model.

Response:

NMFS disagrees that the redistribution model has been applied beyond its usefulness. It is highly unlikely that NMFS could develop a perfect model that accurately predicts fishing behavior. The redistribution of effort model is useful in providing one end of a range of potential outcomes resulting from new closures. NMFS does not overemphasize the dangers of redistribution of effort, but rather considers it likely that fishing effort may be displaced into open areas and that there may be some increase in bycatch as a result. This is not highly speculative, but rather based on quantitative assessments of fishing effort, bycatch rates, and resulting ecological impacts. For instance, fishing effort in the open areas increased in the Gulf of Mexico after the implementation of the existing closures, which suggests that fishing effort will be displaced to other areas. Furthermore, NMFS does not believe that fishing effort that occurred historically within an area would be completely eliminated with a new closure. As stated above, the model used is the best available science for the PLL fishery; however, NMFS will continue to refine the model to increase its usefulness.

Comment 29:

NMFS received comments regarding effort shifts in the Gulf of Mexico including: effort shifts have not occurred in the Gulf of Mexico as predicted for other species; vessels may be offloading in different ports but still in the Gulf of Mexico; and the assumption that vessels would move out of the Gulf of Mexico and catch BFT, particularly spawning western BFT, is unlikely.

Response:

While there has been an overall decrease in fishing effort since implementation of the closures in 2000 - 2001, NMFS has seen evidence of an increase in effort in the Gulf of Mexico during 2001 - 2004, possibly as a result of the East Florida Coast closure implemented in 2001, which forced fishermen who originally fished in the east coast of Florida into the Gulf of Mexico. The difference between closures implemented in 2000 and the closures being considered in this FMP is that many of the areas of high bycatch were targeted for closures in 2000 and remain closed today. NMFS is now analyzing an additional series of closures that may not produce the same tangible results that occurred after the first round of closures because bycatch has already been reduced substantially for many species. Analyses indicate that the overall number of reported discards of swordfish, BFT, bigeye tuna, pelagic sharks, blue and white marlin, sailfish, and spearfish have all declined by more than 30 percent since the time/area closures went into effect. Additionally, as the areas open to fishermen become more restricted, fishing effort will tend to become more and more concentrated in smaller and smaller areas where even low bycatch rates may result in increases in bycatch due to the high effort levels. Some of the closures considered in this rulemaking such as alternatives B2(c) and B2(d) would close very large portions of the Gulf of Mexico where approximately 90 percent of the historic fishing effort in the Gulf has occurred. Closing such a large area in the Gulf of Mexico would be unprecedented, and predicting the outcome would likewise be difficult. It should be noted that while the NED closure was just as large as some of the closures proposed in this rulemaking, the closures proposed in this rulemaking are closer to land and more accessible to vessels. However, NMFS disagrees with the comment that vessels would be unlikely to move out of the Gulf of Mexico in response to such an unprecedented large closure. The analyses indicate that fishermen currently homeported in the Gulf of Mexico move out of the Gulf of Mexico into the Atlantic even without the added incentive of a closure. Even in the highly unlikely event that fishermen did not move out of the Gulf of Mexico in response to a closure, the economic impact could force them to sell their permits to fishermen in the Atlantic, thereby increasing fishing effort in those areas. The redistribution of effort analysis in the FMP would take this into account.

Comment 30:

NMFS received many comments regarding where effort would be redistributed including: the model fails to consider redistribution of effort from one fishing gear to another (e.g., longline to gillnet); the model inappropriately predicts spatially heterogeneous increases in regional fishing effort and bycatch; NMFS should acknowledge the limitations of the model when selecting the final alternatives and base predictions about redistribution of effort on credible, transparent sources and peer-reviewed literature or on comparisons to the outcomes of previous time/area closures; and NMFS initially argued that there would not be a displacement of effort if closures were implemented, but now is arguing the opposite.

Response:

While the redistribution of effort model does not explicitly take into account the potential for fishermen to shift from one gear to another, NMFS has discussed a number of unintended consequences that could result from new closures, including fishermen selling their permits, moving to other areas, and possibly switching gears to target other species. However, given the limited access restrictions of permits for other fisheries, NMFS predicts that it would be difficult for fishermen to switch to a different gear and different fisheries unless they currently possess other permits. NMFS acknowledges the limitations of the redistribution of effort model, and has considered and analyzed other plausible alternatives to the current redistribution scenario. NMFS has considered results from both the redistribution of effort model and a no redistribution of effort model since the first closure for HMS fishermen was implemented in 1999. NMFS has consistently taken both scenarios into account when considering new or additional closures.

ix. Data Concerns

Comment 31:

Does the recent article in the journal “Nature” regarding BFT spawning, which indicated that discards are being underestimated, affect NMFS assumptions about the benefits (and costs) of the proposed time/area closures? Does NMFS have any data indicating that bycatch rates are significantly lower than those recorded by the scientific observers?

Response:

NMFS is aware that discards may be underreported in the HMS logbook data compared to the POP data. However, NMFS examined whether any differences in underreporting between the logbook and observer data for different species emerged between different regions. If underreporting was not different between regions, then the relative effect of each closure on bycatch reduction for each species should be comparable across alternatives.

Cramer (2000) compared dead discards from HMS logbook and observer data. In her paper, Cramer used observer data to estimate dead discards of undersized swordfish, sailfish, white and blue marlin, and pelagic sharks from the PLL fishery operating in the U.S. Atlantic, Caribbean, and Gulf of Mexico. She also provided the ratio of catch estimated from the observer data divided by the reported catch in the HMS logbooks. This ratio indicates the amount of underreporting for different species in a given area. NMFS analyzed these ratios to test whether underreporting varied for different species in different parts of the Atlantic, Caribbean, and Gulf of Mexico. NMFS found no statistical difference in the ratio of estimated catch versus reported catch for undersized swordfish, pelagic sharks, sailfish, or white or blue marlin in the Atlantic, Caribbean, or Gulf of

Mexico. Based on the available information, NMFS found that the underreporting in logbooks compared to observer reports was consistent between areas. Therefore, NMFS believes that, while HMS logbooks may underestimate the amount of bycatch, the use of logbook data rather than observer data should not invalidate or bias the results and that the relative effect of each closure for each species should be comparable across alternatives when using logbook data.

Furthermore, while logbook data appear to underreport bycatch, NMFS has logbook data for each set fished and has observer data for only a limited number of sets fished. In order to use observer data for the analyses, NMFS would have had to extrapolate the catch for all species in all the different areas. This extrapolation process would have added another layer of uncertainty to the model and the results. NMFS believes that while the overall numbers of bycatch and target catch taken would have been larger using the observer data, the use of observer data would have resulted in more uncertainty regarding the relative effect of each closure in terms of predicted changes in bycatch, discards, and retained catch would be the same. Use of the raw logbook data, however, would not introduce the same degree of uncertainty. NMFS will continue to investigate potential differences in reporting between HMS logbook and observer data for all discarded species as well as potential biases in reporting between geographical areas for different species.

Comment 32:

NMFS should use the observed sea turtle CPUE by season for each region and multiply it by the amount of effort anticipated to return to that particular area in order to more accurately assess changes to sea turtle bycatch.

Response:

NMFS used HMS logbook data for all of the analyses to maintain consistency among the alternatives and species. If NMFS had used the POP data for all species, NMFS would have had to calculate extrapolated takes for all the species considered. This extrapolation would have introduced more assumptions and uncertainty than using HMS logbook data to analyze the potential impacts of time/area closures. As mentioned in the response to Comment 31, NMFS found that HMS logbooks may underestimate the amount of bycatch, however, the relative effect of each closure for each species should be comparable across alternatives. The analyses conducted for this rulemaking (and described in the response to Comment 31) give some indication that the use of HMS logbook data over POP data should not invalidate or bias the results of the time/area analyses because the level of underreporting did not significantly differ between geographic regions and, thus, between closure alternatives. NMFS will continue to investigate potential differences in reporting between HMS logbook and POP data for all discarded species.

Comment 33:

How did NMFS conduct the overlap analysis comparing effects of bycatch on BFT, marlin, and sea turtles?

Response:

NMFS analyzed the distribution of white marlin, BFT, leatherback and loggerhead sea turtles, as well as a number of other species from the 2001 - 2003 HMS logbook and POP data using GIS. Data for each of the species were mapped and compared spatially to one another in order to select the areas of highest concentration of bycatch. The areas of highest concentrations of bycatch for all species were then selected for further analysis. NMFS provided maps of bycatch for individual species in the Draft Consolidated HMS FMP, and has provided a map showing the overlap of BFT, white marlin, and sea turtles in the Final Consolidated HMS FMP. NMFS combined the bycatch data from the HMS logbook for BFT, white marlin, and sea turtles into one combined dataset, and then joined them to a 10 x 10 minute grid (which is equivalent to approximately 100 nm

2

) to get the number of discards for all species combined per 100 nm

2

. A color scale is included to show the number of observations per 100 nm

2

. The maps show the areas of highest bycatch for the three species combined. Monthly interactions for the different species (i.e., temporal variability) were considered in the redistribution of effort analyses.

Comment 34:

NMFS should consider increasing observer coverage throughout the longline fleet to document unintended bycatch.

Response:

NMFS's target for PLL observer coverage is 8 percent. This is based on the recommendation from the National Bycatch Report that found coverage of 8 percent would yield statistical analyses of protected resources that would result in coefficient of variance estimates that were below 30 percent.

Comment 35:

Available evidence suggests that leatherbacks, loggerheads, and BFT may share similar hot spots in the Gulf of Mexico, thus closures could be beneficial to all species — despite the opposite conclusion in the Draft Consolidated HMS FMP.

Response:

Pelagic logbook data also showed areas in the Gulf of Mexico where leatherbacks, loggerheads and BFT have been present. NMFS considered closures in the Gulf of Mexico for white marlin, blue marlin, sailfish, spearfish, leatherback sea turtles, loggerhead sea turtles, other sea turtles, pelagic and large coastal sharks, swordfish, BFT, and BAYS tunas. However, unlike the analyses for the existing closures, NMFS found that no single closure or combination of closures would reduce the bycatch of all species considered, and in certain cases resulted in increases of bycatch for some species with the consideration of redistribution of effort. While the Magnuson-Stevens Act provides NMFS the authority to manage all species, NMFS must balance the mandates of the National Standards when examining various closures. For example, National Standard 9 requires NMFS to minimize bycatch and bycatch mortality to the extent practicable and National Standard 1 requires NMFS to prevent overfishing while achieving on a continuing basis the optimum yield from each fishery for the U.S. fishing industry. Both of these National Standards applies to all species and fisheries. If NMFS were to consider only National Standard 9, NMFS could continue to reduce bycatch of certain species until no fishery exists. However, NMFS also needs to balance the needs of National Standard 1 and ensure that each fishery has the opportunity to catch optimum yield of fish while preventing overfishing. NMFS will continue to look at additional closures and other management measures that reduce bycatch and bycatch mortality and that balance the requirements of all the National Standards and other domestic law, as applicable.

x. Pelagic Longline

Comment 36:

NMFS received several comments regarding alternative B7, the prohibition of PLL gear. These comments included: we oppose any rule that would allow the further use or experimentation of such gear, and support alternative B7, which would prohibit the use of PLL gear in HMS fisheries and areas (this alternative would save the fishery if buoy gear was also prohibited); NMFS needs to look at data prior to the introduction of PLL gear in relation to the decline of billfish; and this should be about the gear, not the fishermen, because PLL gear is problematic.

Response:

NMFS does not prefer alternative B7 at this time because, while prohibiting the use of PLL gear would eliminate bycatch associated with that gear, it would also eliminate a significant portion of the retained

catch of swordfish and tunas (e.g., in 2004, 97 percent of the swordfish landings from the U.S. Atlantic were from longline gear). Elimination of this retained catch would result in substantial negative social and economic impacts. Under ATCA, the United States cannot implement measures that have the effect of raising or lowering quotas, although NMFS may change the allocation of that quota among different user groups. The swordfish fishery is confined, by regulation, to three gear types: harpoon, longline, and handlines. Under preferred alternative H5, the commercial swordfish fishery would also be authorized to use buoy gear. Since it is unlikely that the handgear sector would be able to catch the quota given the size distribution of the stock, prohibiting longline gear may reduce the ability of U.S. fishermen to harvest the full quota. It may also reduce traditional participation in the swordfish fishery by U.S. vessels relative to the foreign competitors because the United States would harvest a vastly reduced proportion of the overall quota.

In addition, any ecological benefits may be lost if ICCAT reallocates U.S. quota to other countries that may not implement comparable bycatch reduction measures as the United States. The PLL fishery has implemented many management measures to reduce bycatch including circle hook requirements, live bait restrictions in the Gulf of Mexico, prohibition of the targeted catch of billfish and BFT, time/area closures, and safe handling and release protocols for protected resources. These restrictions have been successful. Methods that have been employed and designed by U.S. PLL fishermen, such as circle hooks and safe handling and release protocols for protected resources, are being transferred around the world to reduce bycatch world-wide. Therefore, this alternative could ultimately support the fisheries of other countries that do not imple

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