Atlantic Highly Migratory Species (HMS) Fisheries; Fishery Management Plan (FMP), Plan Amendment, and Consolidation of Regulations

SUMMARY: NMFS issues final regulations to implement the Fishery

Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP),

and Amendment 1 to the Atlantic Billfish Fishery Management Plan

(Billfish FMP). This action implements the requirements of the

Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-

Stevens Act), implements the recommendations of the International

Commission for the Conservation of Atlantic Tunas (ICCAT) as required

by the Atlantic Tunas Convention Act (ATCA), and consolidates

regulations for HMS conservation and management into one part of the

Code of Federal Regulations (CFR) to comply with the President's

Regulatory Reinvention Initiative.

DATES: This rule is effective July 1, 1999 except that the addition of

Sec. 635.25 and the removal and reservation of Secs. 285.22 and

644.21(a) are effective May 24, 1999, the revisions to Sec. 600.725(v)

will be effective July 26, 1999, Sec. 635.69 will be effective

September 1, 1999, and Sec. 635.4(b) will be made effective when the

Office of Management and Budget (OMB) approves the information

collection contained therein. When approved, NMFS will publish in the

Federal Register notification of the effective date of Sec. 635.4(b).

ADDRESSES: Copies of the HMS FMP, Amendment 1 to the Billfish FMP, the

final rule and supporting documents, including the Revised Final

Environmental Impact Statements (FEIS) and the Final Regulatory

Flexibility Analyses (FRFA), summaries of these items, or information

on sources for permit applications and reporting forms can be obtained

from Rebecca Lent, Chief, Highly Migratory Species Management Division,

Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West Highway,

Silver Spring, MD 20910-3282, phone (301) 713-2347, fax (301) 713-1917.

FOR FURTHER INFORMATION CONTACT: Pat Scida regarding tuna issues at

(978) 281-9260; Jill Stevenson regarding swordfish issues at (301) 713-

2347; Margo Schulze regarding shark issues at (301) 713-2347; Buck

Sutter regarding billfish issues at (727) 570-5447; Karyl Brewster-

Geisz regarding limited access at (301) 713-2347; and Chris Rogers

regarding the regulatory consolidation at (301) 713-2347.

SUPPLEMENTARY INFORMATION: To meet requirements of the Magnuson-Stevens

Act, NMFS prepared an FMP for Atlantic tunas, swordfish and sharks and

an amendment to the Atlantic Billfish FMP. NMFS published a Notice of

Availability of the Draft Amendment 1 to the Billfish FMP on October 9,

1998 (63 FR 54433) with a comment period ending on January 7, 1999, and

a Notice of Availability of the Draft HMS FMP on October 26, 1998 (63

FR 57093), with a comment period ending on January 25, 1999. NMFS

published a proposed rule to implement the FMPs on January 20, 1999 (64

FR 3154) and extended the comment periods for the FMP documents from

January 25 to March 4, 1999, to coincide with the comment period on the

proposed rule. NMFS scheduled public hearings to receive comments on

the FMPs and proposed regulations, announced in the Federal Register on

January 22, 1999 (64 FR 3486).

NMFS did not identify a preferred alternative for BFT stock

rebuilding in the draft HMS FMP because new information on stock status

from the September 1998 stock assessment by the Standing Committee on

Research and Statistics (SCRS), as well as the results of negotiations

at the November 1998 ICCAT meeting, were not available at the time. On

February 25, 1999, NMFS published a Notice of Availability of an

addendum to the Draft HMS FMP and proposed supplemental regulations to

implement the addendum (64 FR 9298). The addendum and supplemental rule

contained alternatives and updated this information only for BFT: BFT

rebuilding, domestic allocations, quota adjustment procedures, measures

to reduce dead discards of BFT, General category effort controls for

the 1999 fishing season, and data collection requirements.

On March 4, 1999, NMFS announced an additional public hearing and

further extended the comment period on the FMPs and proposed rules from

March 4 to March 12, 1999 (64 FR 10438). All comments received by March

12, 1999, whether specifically directed to any of the documents or to

the proposed rule and its supplement, were considered in the decisions

on the final documents and the final rule.

Information regarding the management of HMS under the draft HMS FMP

and Draft Amendment 1 to the Atlantic Billfish FMP was provided in the

preamble to the proposed regulations to implement those FMPs and in the

preamble to the supplemental rule to implement the HMS FMP addendum and

is not repeated here. Additional background information can be found in

the FMPs and supporting documents available from NMFS (see ADDRESSES).

Although the codified regulatory text contained in the supplemental

proposed rule to implement the HMS FMP addendum has been incorporated

into this final rule, the uncodified 1999 bluefin tuna landings quota

specifications proposed in that same document will be published

elsewhere in this Federal Register issue.

NMFS received approximately 5,000 comments via letter, postcard,

facsimile, and electronic mail. Many individuals and groups provided

verbal and written comments at public hearings. Those comments are

summarized here followed by NMFS' responses thereto.

Comments and Responses

General

Comment 1: Quota management is inappropriate for a recreational

fishery. I do not support a recreational closure of any fishery.

Response: Recreational landings of bluefin tuna and blue and white

marlin are subject to quotas or caps due to international management

recommendations. In addition, domestic regulations prohibit retention

of certain species by all user groups, including a subset of shark

species and spearfish, because these species are either particularly

vulnerable or little is known about their status. In the final HMS FMP

and Billfish FMP amendment, NMFS implements measures that are designed

to increase flexibility and allow continued participation in the

recreational fishery despite the caps or quotas. For example, the

Billfish FMP amendment manages the recreational fishery primarily

through the use of minimum sizes, rather than bag limits or seasonal

closures.

Comment 2: Our coastal and offshore resources need more protection

from

[[Page 29091]]

foreign fishing fleets; NMFS is disadvantaging U.S. fishermen; NMFS

should not implement all these domestic measures because foreign fleets

will catch the fish instead.

Response: There is no foreign fishing for HMS within the U.S. EEZ.

Atlantic-wide, NMFS works through the ICCAT process as well as

bilateral efforts (Canada, Mexico) to address issues of common concern

in the management of HMS.

Comment 3: NMFS has to implement the strongest possible domestic

measures for protecting these fine species [HMS] as a safeguard against

inaction at the international level.

Response: NMFS agrees that strong domestic measures must be taken

to rebuild and maintain HMS. However, for most HMS, international

cooperation is essential to a successful management program. The final

HMS FMP and Billfish FMP amendment establish a foundation for the

development of international rebuilding programs for overfished HMS.

Comment 4: These regulations propose to impose a host of

restrictions and controls on recreational fishing that are unnecessary

and burdensome, and do little or nothing to accomplish the basic goal

of rebuilding HMS, including billfish fisheries that are overfished.

Response: NMFS disagrees. Rebuilding HMS requires improved

monitoring and accounting for all sources of mortality, including

recreational fisheries. In addition, NMFS is required under Magnuson-

Stevens Act and ATCA to provide comparable monitoring of all fisheries.

The final HMS FMP and billfish FMP Amendment provide for new measures

that will enhance monitoring and knowledge of all HMS fisheries,

including recreational fisheries, and that implement controls on

recreational landings under international agreement, such as the limit

on school bluefin tuna and on marlin landings. Nevertheless, the final

FMP and amendment reflect public comment on recreational restrictions,

as some measures have been reduced and/or made voluntary in nature,

such as participation in workshops and in observer programs.

Comment 5: The regulations should specify that U.S. citizens, while

fishing on foreign vessels in foreign waters, may comply with the

regulations for that foreign venue, even if they are less restrictive

than U.S. regulations, and must comply if they are more restrictive.

Response: National standard (NS) 3 requires ``To the extent

practicable, an individual stock of fish shall be managed as a unit

throughout its range, and interrelated stocks of fish shall be managed

as a unit or in close coordination.'' Previous Atlantic billfish

regulations, implemented solely under the authority of the Magnuson

Act, restricted fishing-related activities (possession and retention,

size limits, gear limitations and incidental catch restrictions) within

the jurisdictional limits of the U.S. EEZ. U.S.-flagged commercial and

recreational vessels operating exclusively outside the U.S. EEZ were

not affected by these restrictions, although the sale, purchase or

barter of Atlantic billfish harvested from the management unit (i.e.,

for blue and white marlin, the Atlantic Ocean north of 5o N.

latitude) was prohibited. However, implementation of Atlantic blue

marlin and white marlin regulations under both the Magnuson-Stevens Act

and ATCA will make these regulations applicable to all U.S. citizens

and U.S.-flagged commercial and recreational vessels, regardless where

fishing. NMFS disagrees that such application of the Atlantic billfish

regulations is unfair and too restrictive on U.S. fishermen. The

regulations will be much more effective if they are extended under the

authority of ATCA to cover the operational area of U.S.-flagged vessels

in the Atlantic Ocean, and the range of the impacted stock. The

rebuilding of Atlantic billfish stocks requires reductions in mortality

Atlantic-wide, necessitating management measures for Atlantic billfish

throughout their range.

Comment 6: The language concerning management through international

measures is incompatible with the language of the Magnuson-Stevens Act.

It is clear that the United States is to promote optimum yield (OY),

rather than become involved with the details of foreign management

measures.

Response: NMFS supports the promotion of OY in all fisheries,

including OY as part of a rebuilding plan for overfished species. For

most HMS, international cooperation is essential to a successful

management program. In addition to continued bilateral efforts, the

final HMS FMP and billfish FMP amendment provide the foundation for the

development of international rebuilding programs for overfished HMS.

Comment 7: There should be an interim final rule for the public to

review and comment upon the final measures before the rule becomes

effective.

Response: NMFS disagrees. There was an extensive comment period on

the draft HMS FMP and draft billfish FMP amendment, the bluefin tuna

addendum to the HMS FMP, as well as the proposed rule and supplement to

the proposed rule. Nearly 5,000 comments were received, along with

record attendance at the 27 public hearings, and AP meetings to address

public comment. It is clear that the public was fully aware of and took

advantage of the opportunity to comment on these proposals. The final

HMS FMP and billfish FMP amendment clearly demonstrate that, where

possible, NMFS has effected changes that meet the same objectives but

with less impact on the affected communities. Finally, these documents

provide a framework for the continued management of these species, and

delays will only hinder progress.

Comment 8: Framework provisions should be taken out of the FMP, as

they are not understood by the public, and there is no oversight on the

framework procedures used by NMFS.

Response: NMFS disagrees. The purpose of the framework process is

to facilitate timely management of HMS. Measures proposed under the

framework process will be subject to public comment and at least one

public hearing, and if appropriate, an AP meeting as well. NMFS has

clarified the objectives to which these framework provisions apply, and

somewhat narrowed the range of framework measures from the proposed

framework.

Comment 9: Commercial interests are favored over good scientific

management of the fish, and over interests of the long-standing

recreational fishery.

Response: NMFS disagrees. The final measures in the HMS FMP and

billfish amendment are based on the best scientific information

available and include closure of the commercial fishery for sharks,

swordfish and pelagic longline fishing of BAYS to all but those active

in the fishery. The final shark measures include substantial reductions

in commercial quotas and an expanded list of prohibited species.

Bluefin tuna are subject to an international rebuilding program, and a

foundation is established for the development of an international

rebuilding program for swordfish, bigeye tuna, and billfish at future

ICCAT meetings. Recreational measures have been honed to focus on those

that are most effective while still meeting management goals.

Comment 10: The HMS FMP is extremely long and complicated covering

many species. It would have been better to have separate hearings on

each species rather than all HMS. Timing and location of public

hearings need more input from public sector.

Response: The development of the HMS FMP has greatly benefitted

from the holistic approach to the management of swordfish, sharks, and

[[Page 29092]]

tunas. Many of these species are harvested by the same commercial and

recreational user groups, and an integrated FMP affords an improved

management strategy for all species. The billfish FMP remains separate,

however, due to the exclusively recreational nature of this fishery.

Nevertheless, NMFS has and will continue to hold joint AP meetings on

issues of common concern, and draw important parallels between

management of billfish and other HMS. Location and timing of public

hearings are developed in consultation with AP members, the location of

current participants, and within the schedule required to satisfy a

variety of legal constraints and logistic limitations.

Comment 11: NMFS has not implemented programs to provide reliable,

real time monitoring of recreational catch by private anglers as

required by law.

Response: NMFS disagrees. The HMS FMP and billfish FMP amendment

add to existing recreational data reporting requirements, including

expanded permitting and logbook requirements, tournament registration

and reporting, and an observer program. Recreational catch and harvest

of HMS and billfish are also monitored by the Marine Recreational

Fisheries Statistics Survey (MRFSS), the Large Pelagic Survey,

mandatory self-reporting of all bluefin tuna landed, and individual

state recreational fisheries surveys. In addition, the framework

measures in the FMP and amendment allow for expanded recreational

monitoring. NMFS will continue to work with the APs and affected public

to expand and develop these efforts to improve recreational monitoring.

Comment 12: The HMS FMP is biased against the recreational fishing

industry and favors commercial fisheries. The HMS FMP does not address

the destructive nature of longline fishing. The FMP is overly

burdensome for the collection of recreational fisheries data.

Response: NMFS disagrees. The HMS FMP is focused on reducing

fishing mortality for overfished species of sharks, tunas, and

swordfish. The HMS FMP also addresses those resources that are

currently considered to be fully fished. The final measures in the HMS

FMP include closure of the commercial fishery for sharks, swordfish and

pelagic longline fishing of BAYS to all but those active in the

fishery. The final shark measures include substantial reductions in

commercial quotas and an expanded list of prohibited species. Bluefin

tuna are subject to an international rebuilding program, and a

foundation is established for the development of an international

rebuilding program for swordfish, bigeye tuna, and billfish at future

ICCAT meetings. The final HMS FMP and Billfish FMP Amendment provide

for new measures that will enhance monitoring and reporting in all HMS

fisheries, both commercial and recreational. The final actions reflect

public comment on recreational restrictions, as some measures have been

reduced and/or made voluntary in nature, such as participation in

workshops and in observer programs.

Comment 13: Recreational landing estimates for pelagic species are

generated from the MRFSS database and these estimates of landings are

not accurate.

Response: NMFS disagrees. The MRFSS data program is designed to

estimate recreational catch and effort over broad areas. While the

program admittedly does not capture information on pulse fisheries or

rare event fisheries, such as billfish and swordfish, the generated

estimates and their proportional standard error estimates give an

indication of their statistical validity. The Large Pelagic Survey

(LPS) is designed to better capture catch and effort data on HMS. NMFS

plans to continue this survey and consider expanding the program to

additional geographic areas.

Comment 14: Except for billfish, no basis exists for how the agency

allocates catch among user groups.

Response: NMFS disagrees. NMFS bases all allocation of fishing

privileges on NS 4, which requires all allocations, should they be

necessary, to be fair and equitable to all such fishermen, be

reasonably calculated to promote conservation, and carried out in such

manner that no particular individual, corporation, or other entity

acquires an excessive share of such privileges.

Comment 15: NMFS penalizes fishermen who provide data by using

those data to place restrictions on the fishermen.

Response: NMFS disagrees. NS 1 calls for the prevention of

overfishing and NS 2 states that management measures will use the best

scientific information available. Data are used to monitor the fishery

to prevent overfishing and to support management measures to ensure the

future health of the resource. If a fishery is judged to be overfished,

all sources of information will be assessed to address the problem.

Should fishermen not provide information, or provide inaccurate

information, the management measures developed by NMFS to remedy the

overfishing could be more burdensome than necessary on the fishing

sectors depending on the fishery resource.

Comment 16: NMFS should adopt a more precautionary fishing

mortality threshold that is lower than the fishing mortality that will

result in maximum sustainable yield (MSY).

Response: NMFS agrees and has adopted 0.75FMSY, which is

consistent with precautionary technical guidance for NS 1 established

by NMFS scientists.

Atlantic Billfish

Comment 1: The selected alternatives do not reflect any of the

advice given by the Billfish AP.

Response: NMFS disagrees. The advice from the Billfish AP was

noted under each action in the draft FMP amendment. The agency's

rationale for selecting preferred alternatives, including those that

were not supported by the Billfish AP was also included in the plan.

The Billfish AP was established under section 302(g)(4) of the

Magnuson-Stevens Act, ``to assist in the collection and evaluation of

information relevant to the development of any fishery management plan

or amendment.'' However, it is important to note that decisions and

recommendations made by the AP are advisory in nature. Many of the

final actions are based on advice from the APs.

Comment 2: NMFS violated NS 1 of the Magnuson-Stevens Act and NEPA

by not including a viable rebuilding plan for blue and white marlin in

the draft FMP amendment.

Response: NMFS disagrees. The draft FMP amendment contained

elemental components for rebuilding on an Atlantic-wide basis. However,

the final amendment more clearly defines the relationship between

domestic management actions and international rebuilding alternatives.

Domestic measures ensure U.S. compliance with the 1997 ICCAT

recommendation. The final FMP includes final actions to establish the

foundation for the development of an international 10-year rebuilding

plan. NMFS will work with ICCAT member nations to adopt a rebuilding

program that meets the standards of the Magnuson-Stevens Act and the

NSGs, including an appropriate rebuilding time period, targets, limits,

and explicit interim milestones for recovery, expressed in terms of

measurable improvements of overfished stocks. The final FMP amendment

lists specific management measures that could be a part of the

international strategy.

Comment 3: NMFS should scrap the draft Atlantic billfish FMP

amendment and develop a new document focusing on rebuilding overfished

billfish stocks

[[Page 29093]]

by reducing bycatch in the U.S. pelagic longline fishery.

Response: The multidimensional focus of the draft FMP amendment

addressed the 1997 ICCAT recommendation and the U.S. mandates under the

Magnuson-Stevens Act and ATCA. The actions taken in the final FMP

amendment are critical steps in the ICCAT process, formulating the

basis for international regulations that will rebuild overfished

billfish stocks. Rebuilding overfished Atlantic billfish stocks is not

possible solely by reducing or eliminating bycatch in the U.S. pelagic

longline fishery due to the small percentage of mortality caused by

U.S. vessels. The HMS FMP will be the primary tool for designing,

analyzing and implementing management measures to control bycatch in

association with all HMS commercial fisheries, including Atlantic

billfish.

Comment 4: The management measures included in the Billfish

framework provisions should be dropped because they would allow NMFS to

implement these regulatory actions without input from the Billfish

Advisory Panel or from the public.

Response: NMFS disagrees. Both framework adjustment measures and

proposed FMP amendments must go through extensive public and analytical

review, including development and review by the APs, if appropriate.

Comment 5: Actions taken by the United States alone cannot

sufficiently reduce billfish mortality levels Atlantic-wide to rebuild

overfished billfish stocks. Therefore, management actions taken by

NMFS, without the support and adoption by ICCAT, are a waste of time

and money.

Response: NMFS disagrees. While unilateral management action by

the United States cannot rebuild overfished billfish stocks, the United

States has been a leader in conservation of Atlantic billfish, and has

taken actions (e.g., the 1988 Atlantic billfish FMP) to show our

willingness to take the critical steps necessary to conserve these

stocks. This fact has been a primary negotiation tool at ICCAT, and it

is questionable whether the recent ICCAT actions (i.e., the 1997 and

1998 ICCAT recommendations) could have been possible without these

efforts. Therefore, the final actions and framework provisions in the

FMP amendment and HMS FMP will form the foundation for the development

of rebuilding plans following the 2000 (marlins) and 2001 (sailfish)

assessments.

Comment 6: NMFS received comments supporting and opposing a 10-year

recovery period for blue marlin and white marlin. Comments against the

10-year recovery period include: the recovery time period of 10 years

is too long; a shorter time frame could be justified based on the life

history characteristics of Atlantic blue and white marlin; the recovery

to biomass rebuilding target within 10 years is impossible without

international cooperation by Atlantic commercial fishing operations;

and rebuild overfished populations as quickly as possible, not in the

maximum period allowed by law.

Response: NMFS maintains the recovery period of 10 years in the

final FMP amendment. Life history is not the sole consideration for

determining recovery time period alternatives. The Magnuson-Stevens Act

specifies that a recovery period be as short as possible, taking into

account the status and biology of any overfished stocks of fish, as

well as the needs of fishing communities, recommendations by

international organizations in which the United States participates

(e.g., ICCAT), and interactions of the overfished stock of fish with

the marine ecosystem. The final guidelines for NS 1 indicate that these

factors may be used to adjust the rebuilding period up to 10 years.

NMFS proposed a 10-year recovery period to minimize negative impacts on

recreational and commercial communities/entities. Agreements at ICCAT

may dictate that rebuilding of Atlantic billfish may take up to 10

years, indeed even longer.

Comment 7: The model used to generate the recovery periods for blue

marlin and white marlin may provide overly optimistic projections of

the time required for rebuilding.

Response: The non-equilibrium stock-production model used to

generate recovery periods was based on the best available science at

the time the draft FMP amendment was developed. NMFS maintains these

results in the final FMP amendment, but will review the applicability

of this model following the 2000 (marlins) and 2001 (sailfish) Standing

Committee for Research and Statistics (SCRS) stock assessments.

Subsequently, modifications may be warranted in the recovery period or

other components of the rebuilding plan.

Comment 8: The minimum stock size thresholds (MSSTs) selected for

Atlantic billfish in the draft FMP amendment are too low and should be

more precautionary.

Response: NMFS agrees that the MSSTs selected for Atlantic

billfish in the draft FMP amendment should be more precautionary. The

formulation of MSST for Atlantic billfish using (1-M)BMSY,

where M is the instantaneous natural mortality rate, is a proxy for the

minimum stock size at which rebuilding to the maximum sustainable yield

level would be expected to occur within 10 years if the stock or stock

complex were exploited at the maximum fishing mortality threshold.

Quantitative data necessary to calculate natural mortality rates are

not available; however, reasonable values can be estimated based on

life history parameters and age structure of the population. Estimates

of M range from 0.05 to 0.15 for Atlantic blue marlin, from 0.1 to 0.2

for Atlantic white marlin, and from 0.2 to 0.3 for western Atlantic

sailfish. The draft FMP utilized values near the lower-end of the

precautionary range; however, based on further analyses, the MSST

values selected for the final FMP amendment for Atlantic blue and white

marlin and sailfish are 0.95BMSY, 0.85BMSY, and

0.75BMSY, respectively.

Comment 9: NMFS received comments both supporting and opposing the

extension of the management unit for Atlantic blue and white marlin to

the entire Atlantic Ocean, and implementation of regulatory actions

under ATCA. These comments include the following: the extension is an

important step closing a loophole in the regulations that allows

Atlantic billfish to be caught and sold south of 5o N; this

measure unfairly restricts U.S. recreational anglers fishing in foreign

waters, especially when fishing in foreign tournaments; U.S. commercial

vessels operating under foreign contracts or in countries where all

fish caught must be landed will be adversely affected; enforcement of

these regulations would be impractical and costly for the relatively

few U.S.-flagged commercial and recreational vessels operating in

foreign waters that would be impacted by this proposed management

measure.

Response: NMFS agrees with comments supporting the proposed

preferred alternative to extend the management unit for Atlantic blue

and white marlin to the entire Atlantic Ocean, and implementation of

regulatory actions under ATCA. Expansion of the regulatory authority is

supported by NS 3 that requires ``To the extent practicable, an

individual stock of fish shall be managed as a unit throughout its

range, and interrelated stocks of fish shall be managed as a unit or in

close coordination.'' Implementation of Atlantic billfish regulations

under both the Magnuson-Stevens Act and ATCA will make these

regulations applicable to all U.S. citizens and U.S.-flagged commercial

and recreational vessels, regardless of where they are fishing. NMFS

disagrees

[[Page 29094]]

that such application of the Atlantic billfish regulations is unfair

and too restrictive on U.S. fishermen. Regulations will be much more

effective if they are extended under the authority of ATCA to cover the

operational area of U.S.-flagged vessels in the Atlantic Ocean.

Commercial vessels fishing under lease arrangements in other countries

may need to apply for Exempted Fishing Permits (EFPs) in order for the

agency to collect necessary management information, and to prevent

violations of U.S. law. Since the same vessels potentially catching

billfish are also operating under other Atlantic-wide fishing

prohibitions (north and south Atlantic swordfish) that require

enforcement and monitoring, problems with additional enforcement of

billfish regulations impacting U.S. commercial pelagic longline vessels

operating in the Atlantic are expected to be minimal.

Comment 10: NMFS should implement time/area closures specifically

to reduce bycatch of Atlantic billfish.

Response: NMFS disagrees. Based on the currently available data,

NMFS does not think implementing large closed areas with the sole

objective of reducing billfish bycatch is practicable because of the

minimal effect on billfish and the significant social and economic

impacts on pelagic longline fishermen and their communities. However,

NMFS is preparing additional analyses to identify large areas to

protect small swordfish and will consider the impacts of these closures

on billfish stocks.

Use of Best Available Science in Billfish Management

Comment 1: NMFS violates NS 2 by ignoring or inappropriately

applying available scientific information in the draft FMP amendment.

Response: NMFS disagrees. The draft FMP amendment used the most

recent data available. Scientific information and data sources used in

formulation of the plan include the MRFSS, Large Pelagic Survey,

Recreational Billfish Survey, Cooperative Tagging Center, SCRS stock

assessments and reports, NMFS research/reports, as well as research

funded by the agency and independent research, including publications

in scientific journals, preliminary reports on ongoing research, and

personal communication with experts in the field. NMFS has developed a

comprehensive research and monitoring plan (October, 1998) to support

the conservation and management of Atlantic HMS as required by

971(i)(b) of ATCA. The objective of this comprehensive research and

monitoring plan is to ensure that NMFS science is of the highest

quality and that it advances the agency's ability to make sound

management decisions.

Comment 2: NMFS should limit regulatory changes to recommendations

by committees comprised of professional scientists, not politicians, in

order to reflect the best available science.

Response: NMFS disagrees. The Magnuson-Stevens Act, ATCA, and

ICCAT recognize the highly migratory nature of these international

fisheries, which necessitates an interdisciplinary approach to

fisheries management. The APs play an important role in advising NMFS

not just on science, but on practical constraints, as well as social

and economic impacts of various management alternatives.

Fair and Equitable Allocation of Restrictions/Benefits Among Billfish

Fishery Sectors

Comment 1: NMFS is apparently relying only on reductions in U.S.

recreational landings to rebuild overfished billfish stocks, which is

inconsistent with NS 4. The recreational billfish community is

responsible for only a small portion of Atlantic-wide mortalities and

has a record of voluntary conservation as evidenced by the high

percentage of released billfish, yet the majority of management

measures included by NMFS in the draft Atlantic billfish FMP amendment

are unfairly focused on recreational anglers.

Response: NMFS agrees that the recreational billfish community is

responsible for only a small portion of Atlantic-wide mortalities and

commends their voluntary conservation. However, NMFS disagrees that the

management measures included in the draft Atlantic billfish FMP

amendment were unfairly focused on recreational anglers. The draft FMP

amendment specifically stated that the level of reductions in landings

required to rebuild overfished billfish stocks will necessitate

international cooperation; reduction or even elimination of all sources

of U.S. billfish mortality alone is insufficient to achieve rebuilding

as the United States is responsible for approximately 5 percent of the

Atlantic-wide mortalities of marlin. Reductions of 2,443 mt from 1996

total Atlantic landings will be required to rebuild stocks of blue

marlin and 638 mt for white marlin; the total U.S. reported mortality

of Atlantic marlin during 1996 was 302.3 mt. The final Atlantic

Billfish FMP Amendment includes increases in minimum size limits in

order to reduce landings; the 25-percent reduction in blue and white

marlin landings will result in reductions of U.S. recreational landings

of approximately 21,000 pounds (9.52 mt); however, on a larger scale,

this recommendation will result in nearly a 3.4 million decrease in

Atlantic-wide marlin landings from 1996 levels by other ICCAT member

countries. The 1997 ICCAT recommendation also requires improvement in

monitoring, data collection and reporting in all Atlantic billfish

fisheries.

Comment 2: Continuing the prohibition on commercial landings of

Atlantic billfish, while allowing recreational fishermen to land

billfish, is unfair and discriminatory.

Response: NMFS disagrees. A fundamental element of the 1988

Atlantic billfish FMP was the prohibition of possession and sale of

commercially caught billfish within the U.S. EEZ. Allowing recreational

fishermen to land billfish is consistent with traditional usage of this

fishery. A major objective of the FMP amendment is to develop a

rebuilding plan for overfished billfish stocks, and although unilateral

actions by the United States will not rebuild these highly migratory

species, additional mortalities experienced on these stocks by allowing

U.S. commercial harvest would run counter to the objectives of NS 1 and

the FMP amendment. The Billfish FMP amendment retains the prohibition

of possession and sale of commercially-caught billfish.

Community Impacts Resulting From Billfish Measures

Comment 1: Destin, FL, Port Aransas, TX, and other coastal towns

were not included in the community analysis of the draft Atlantic

billfish FMP amendment. The Atlantic billfish recreational fishery is

an important component of these locations, therefore, these areas

should be included in any analysis of economic and community impacts of

management restrictions.

Response: NMFS agrees that some towns where the Atlantic billfish

recreational fishery is an important component were not included in the

community analysis of the draft Atlantic billfish FMP amendment.

However, the billfish community profiles included in the draft FMP

amendment are not intended as an exhaustive list of where recreational

billfish angling is an important component of the local economy and

culture, rather they provide a broad perspective on representative

areas. Consistent with NS8, the final FMP amendment first identifies

and describes representative Atlantic billfish communities (on the

basis of geographic location, gear-type

[[Page 29095]]

and operational framework of the various components of the fishery) and

then assesses their differing nature and the magnitude of the likely

effects of this FMP amendment. The final FMP amendment also summarizes

anticipated social impacts resulting from the implementation of the

Atlantic billfish FMP amendment on a broader scale, based on the

comments received during the comment period for the draft FMP amendment

and proposed rule. Public hearings for the proposed rule to implement

the draft Atlantic billfish FMP amendment were held in a wide range of

locations (including Panama City, near Destin and Ft. Walton and Port

Aransas) to collect comments from numerous billfish angling

communities.

Comment 2: Destin, Florida has changed an important billfish

tournament to an all-release format based on the economic threat of a

potential zero bag limit included in the proposed rule. If sponsorships

and participation in the tournament decline because of the change to

catch-and-release strategy, the local economy will be negatively

impacted, as will charities that have historically received financial

support from this event.

Response: NMFS evaluated thousands of comments on the issue of

economic impacts of an adjustable bag limit and other measures included

in the draft plan, some of which merited changes in the final FMP

amendment. While the intent of the draft FMP amendment was not to cause

severe impacts to communities, the change to a ``no-kill'' tournament

format should be applauded and certainly is consistent with the

precautionary management strategy of the 1996 Magnuson-Stevens Act. It

should be noted that many other tournaments have gone to an all-release

format without a reduction in participation. NMFS restates advice of

the 1988 Atlantic Billfish FMP, encouraging all tournaments to adopt a

catch-and-release philosophy.

Billfish Harvest Controls and Retention Limits

Comment 1: NMFS should require catch-and-release only of Atlantic

billfish by all recreational anglers. Allowing recreational anglers to

land billfish is inconsistent and counterproductive with the objectives

of the FMP amendment, and undermines the goals of the FMP. Closing the

recreational Atlantic billfish fishery, except to catch-and-release,

supports the conservation ethic of this recreational user group; will

maximize net economic benefits to the nation by managing the fisheries

for long term OY; is consistent with the ICCAT recommendation; and

meets the critical U.S. leadership goal to promote international

conservation.

Response: NMFS disagrees. Most recreationally caught billfish are

already released, either voluntarily or in compliance with minimum size

limits. However, some anglers prefer to land some billfish. Allowing

those few fish to be landed is consistent with ICCAT conservation

recommendations and recognizes the multi-faceted objectives of domestic

and international management of the billfish fishery.

Comment 2: NMFS should not prohibit the use of multiple hooks in

the Atlantic billfish recreational fishery. Using the precautionary

approach as a rationale to support this measure is contrary to the

mission statement of NMFS as there is absolutely no science-based

justification for this action. Limiting the number of hooks in a lure

or bait is an unnecessary regulation because this will not enhance

post-release survival rates; and will have no direct benefit to

recovery of Atlantic billfish resources. This measure would

significantly reduce angler hook-up rates, as well as have a negative

economic impact on anglers by requiring purchases of new equipment and

on tackle manufacturers.

Response: NMFS has not included this proposed action in the final

rule. This measure was developed as a result of discussions with the

Billfish AP, which includes representatives from the charter boat

industry, sport fishing groups, and Fishery Management Council

appointees familiar with the recreational billfish industry. The

objective of this alternative was to reduce the probability of injury

to gills, throat and eyes, thereby decreasing release mortality rates.

After NMFS and the Billfish AP reviewed public comments on this issue,

the majority of panel members rescinded their support of this measure.

Comment 3: NMFS received several different comments regarding the

use of dehooking devices, including: NMFS should require the use of

dehooking devices by both recreational and commercial fishermen

targeting billfish to reduce post-release mortality; NMFS should not

mandate but promote the use of dehooking devices by both recreational

and commercial fishermen; and NMFS should only allow recreational

anglers to utilize hook-removal devices, but still require commercial

fishermen to cut their gear to release a billfish because a dehooking

device can not practically be used to release a billfish caught on

pelagic longline gear, and will result in an increase in bycatch

mortality as fishermen use this ``loop-hole'' try to save hooks; and

NMFS should allow the removal of the hook by any means, provided that

it can be accomplished safely and without increased damage to the

hooked fish.

Response: The draft FMP amendment preferred alternative was to

``allow the removal of the hook from recreational and commercially

caught billfish.'' NMFS maintains this action in the final FMP

amendment but does not mandate the use of dehooking devices. Their use

as a mechanism to reduce post-release mortality is allowed but not

required. There were no conclusive, peer-reviewed scientific results on

which to base such a mandate at the time this FMP amendment was

developed. However, commercially available dehooking devices have been

effective in other commercial and recreational fisheries and have been

successfully employed on removing hooks from other large fish. NMFS

will include information on such dehooking devices in its pelagic

longline workshops, as well as in its educational outreach programs.

The final rule implementing the FMP amendment preserves the requirement

that billfish that cannot be legally retained must remain in the water

at all times, but no longer requires that the line be cut. Instead, the

final rule specifies that the hook may be removed, provided that the

method of hook removal used does not harm the fish, and may enhance its

survival. Proper handling techniques to remove a hooked billfish from

commercial or recreational gear will also be included in the pelagic

longline workshops, in order to enhance the effectiveness of this final

action and minimize the mortality of all releases.

Comment 4: It is impossible to determine the size of an Atlantic

billfish without removing the fish from the water.

Response: NMFS disagrees. The 1988 Atlantic Billfish FMP noted

similar comments, but cited advice from the SAFMC Billfish Advisory

Panel which stated experienced billfish anglers and captains would have

little difficulty in estimating the size of these fish quite

accurately. The Plan's intent is ``to encourage the release of all

billfishes not needed for tournament competition or of trophy fish, and

since tournament anglers generally have no difficulty estimating fish

size and trophy fish would be substantially in excess of the minimum

sizes, this is not expected to be a major problem'' (SAFMC, 1988). The

final rule implementing the FMP amendment preserves the requirement

that billfish that cannot be legally retained must remain in the water

at all

[[Page 29096]]

times. NMFS continues to support this regulation and will use its

educational outreach programs for recreational fishermen to instruct

them on the proper handling and release of billfish to maximize their

survivability.

Comment 5: The recreational landings caps for Atlantic blue and

white marlin are unfair and unnecessary. If adopted, this proposal

would be a significant U.S. policy change for billfish management in

the United States from one that controls mortality through size limits

and the encouragement of catch and release, to a quota management

system. Imposing quotas in recreational fisheries does not work. They

are highly disruptive to the orderly conduct of the fishery and weaken

confidence in the entire management system.

Response: These measures are necessary because blue marlin and

white marlin are overfished. Furthermore, the United States is

compelled to comply with ICCAT recommendations as required under ATCA,

therefore the United States, and all other ICCAT member countries/

entities, must reduce landings (i.e., fish brought back to the dock vs.

catch which is taken by fishing gear at sea) by at least 25 percent

from 1996 levels. The true impact of this recommendation can only be

evaluated in terms of Atlantic-wide reductions in marlin landings. The

25-percent reduction in blue and white marlin landings will result in

reductions of U.S. recreational landings of approximately 21,000 lb

(9.52 mt reductions in marlin landings); however, on a larger scale,

this recommendation will result in nearly a 3.4 million pound decrease

(over 1,400 mt reductions in marlin landings) in Atlantic-wide marlin

landings from 1996 levels by other ICCAT member countries. The final

FMP amendment utilizes a size-based strategy to reduce U.S.

recreational landings to required levels.

Comment 6: NMFS received comments supporting and opposing the

recreational retention limit of one Atlantic billfish per vessel per

trip. Comments that support the recreational retention limit include:

NMFS should implement the proposed recreational retention limit for

billfish; the limit of one billfish is appropriate in that it will

result in reduced landings of marlin without creating a hardship for

the charter boat industry since few billfish are retained by anglers;

and a limit of one billfish would be consistent with Florida state

regulations. Comments against this measure include: NMFS should

eliminate the recreational retention limit of one Atlantic billfish per

vessel per trip; given the rare nature of billfish catches, and even

rarer incidences of billfish landings, a limit of one billfish per

vessel per trip would be ineffective in reducing landings by any

significant amount; and this measure would have significant negative

economic impacts on tournaments that have a ``grand slam'' category

(i.e., prize for landing a blue marlin, white marlin and sailfish).

Response: Retention of more than one billfish during a

recreational trip is relatively rare, but the recreational retention

limit was included in the draft FMP amendment as part of a

precautionary management strategy, and to ensure compliance with

landing caps established by the 1997 ICCAT recommendation. In the

interest of responding to public comment on the impact of implementing

recreational retention limits in the Atlantic billfish fishery, and in

consideration of the ability of NMFS to manage landings (mortality)

with size limits that can be adjusted through interim or proposed and

final rule measures, the limit is rejected in the final Atlantic

billfish FMP amendment. Reliance on size limits alone to control

landings simplifies regulatory constraints and effectively accomplishes

the same goal.

Comment 7: NMFS should remove the provision providing the AA the

authority to adjust the billfish recreational retention limit with 3-

day notice, including to a zero bag limit. Imposing an adjustable limit

for billfish is excessive and unnecessary regulation of this

recreational fishery. Contrary to the Magnuson-Stevens Act and

Regulatory Flexibility Act requiring the selection of the least

burdensome alternative, the proposed measure imposes the greatest

economic uncertainty in the billfish fishery. Tournaments could be

canceled, or at least experience significant reduction in

participation, solely on the possibility of a prohibition of landing

any fish. NMFS could manage this fishery through a minimum size limit

in such a way that landings are reduced by at least 25 percent, without

closing the fishery.

Response: In consideration of the ability of NMFS to manage

landings (mortality) with size limits that can be adjusted through

interim or proposed and final rule measures, the provision providing

the AA additional explicit authority to adjust the retention limit to

zero is in the final Atlantic billfish FMP amendment. However, this

approach may be reconsidered in the future if management by minimum

size limits is insufficiently successful.

Comment 8: NMFS should prohibit any billfish from being imported

into the United States, regardless of where the billfish are caught

(i.e., Pacific or Atlantic Ocean).

Response: NMFS agrees that consideration of prohibiting any

billfish imports may be warranted in the future.

Comment 9: NMFS received comments for and against the proposed

preferred minimum size limits, including: the Atlantic billfish size

limits in the draft FMP amendment should be implemented; the Atlantic

marlin size limits proposed by NMFS are excessive, in that they will

reduce landings more than necessary to comply with the 1997 ICCAT

recommendation; and the minimum size limits should be in round numbers

that are easier to remember, for example 100 inches (254 cm) lower jaw

fork length (LJFL) for blue marlin rather than 99 inches (251 cm) LJFL.

Response: NMFS agrees with comments supporting the proposed

preferred minimum size limits. The increase in minimum sizes for

Atlantic blue marlin to 99 inches LJFL, 66 inches (168 cm)LJFL for

Atlantic white marlin and 63 inches (160 cm) LJFL for sailfish is the

final management action because it would reduce mortality rates by at

least 25 percent for each of these overfished species at minimal short-

term economic expense with long-term economic benefits.

Comment 10: NMFS received comments for and against the proposed

preferred alternative to prohibit the retention of longbill spearfish.

Comments against this measure include: lack of scientific information

on this species is not an adequate reason to prohibit its retention;

this measure would only hinder any research efforts; retention should

be allowed until further data are made available that indicate this

species is overfished; and as an alternative measure, NMFS should

establish a toll free number for fishermen to report longbill spearfish

landings and use this information for scientific purposes.

Response: The absence of adequate scientific information is not a

reason for failing to take appropriate conservation and management

measures. The precautionary approach asserts ``states should apply the

precautionary approach widely to conservation, management, and

exploitation of living aquatic resources in order to protect them and

preserve their aquatic environment (1995 Food and Agriculture

Organization (FAO) International Code of Conduct).'' Longbill spearfish

are rarely encountered by commercial fishermen or recreational anglers,

and are generally not included as a target species in billfish

tournaments. Therefore, this

[[Page 29097]]

measure should have only minimal negative social or economic impacts.

The status of spearfish stocks is unknown, but the rare nature of this

species necessitates a cautious management strategy to avoid any

potential negative impacts to the stock.

Billfish Monitoring, Permitting and Reporting

Comment 1: NMFS should expand the use of sampling protocols

utilized in the Gulf of Mexico to other Atlantic coastal areas to

improve monitoring of recreational billfish landings.

Response: NMFS agrees. The 1997 ICCAT recommendation for

improvement in monitoring and data collection, as well as the

establishment of landing caps for Atlantic blue and white marlin, has

focused attention on the need for improvement in sampling and

monitoring programs to ensure that the United States is in compliance

with international agreements. The Gulf of Mexico program was

instrumental in providing a historical framework for developing the

notification and reporting requirements for billfish tournaments, but

expansion of this program to other areas may not provide the sampling

levels necessary to ensure compliance with the ICCAT recommendation.

Additional monitoring and reporting requirements have been added to the

FMP amendment, including logbooks, permits and a voluntary observer

program for charter-headboat vessels, and mandatory tournament

registration.

Comment 2: NMFS received several different comments on the proposed

outreach programs, including: the proposed outreach programs for

recreational billfish anglers are a waste of time and federal

resources, recreational anglers already practice conservation in

releasing over 90 percent of their catch; the proposed outreach

programs will be a valuable addition to the FMP amendment depending on

the level of cooperation with state and other federal agencies, fishing

constituent groups, etc.; and, attendance at workshops and seminars

held as part of this measure should be mandatory.

Response: NMFS disagrees that the proposed outreach programs for

billfish anglers are a waste of time. Although recreational anglers

already release approximately 90 percent of their catch and NMFS has

established a catch-and-release fishery management program in the final

FMP amendment, release of live fish does not guarantee their survival.

Outreach programs established in this amendment will provide proper

handling, tagging, measuring and release techniques in order minimize

the mortality of all live releases, a proactive approach to meeting

several objectives of this FMP amendment. Attendance at workshops by

charter boat operators and recreational anglers will not be mandatory,

but will be encouraged and promoted through various constituent groups,

trade publications and federal and state agencies (e.g., NMFS Office of

Intergovernmental and Recreational Fisheries, Sea Grant). It is

important to note, however, the success of any outreach program is

predicated on reaching the entire billfish recreational angler

community, which may eventually require implementation of a permit or

other registration procedure.

Comment 3: Requiring billfish and other HMS tournaments to notify

NMFS four weeks prior to commencement of the tournament is punitive and

unnecessary. Without corresponding time and area closures of longline

fishing in spawning and nursery areas, mandatory tournament

registration is unfairly biased against the recreational fishing

industry.

Response: NMFS disagrees. The 1997 ICCAT recommendation requires

improvement in monitoring, data collection and reporting in all

Atlantic billfish fisheries. The tournament notification requirement is

critical to developing a sampling frame for tournaments to allow for

better monitoring, data collection, and reporting of billfish and other

HMS tournaments. Tournament registration also gives NMFS a sampling

frame to obtain information on participation level, angler effort, as

well as social, economic and fisheries characteristics data.

Information from the tournament registration forms will provide a

general guide to the total number tournaments, their locations, number

of participants, etc. This action will greatly improve NMFS' collection

of a data from a significant segment of the recreational HMS fishery at

a relatively small social and economic cost. This requirement is

comparable to the logbook data that are submitted by charter/headboats,

and commercial fishermen in that it collects catch and effort

information.

Comment 4: The definition of an HMS tournament, including Atlantic

billfish, as ``any fishing competition involving Atlantic HMS in which

participants must register or otherwise enter or in which a prize or

award is offered for catching such fish,'' is too broad.

Response: The definition of tournament is intentionally broad so

that as much data as possible can be collected to better identify the

universe of billfish anglers. While all tournaments will be required to

register, tournament directors must report only if selected.

Comment 5: The Atlantic billfish tournament reporting form needs to

be revised to more closely match the type of information that can

practically be collected during a tournament.

Response: NMFS will hold joint workshops with fishing

organizations and interested members of the public to discuss the best

format for accurate reporting of necessary data.

Comment 6: Tournaments selected to report should have 100- percent

compliance and summary data should be made available to tournament

directors, the HMS APs, and ICCAT Advisory Committee in a timely

fashion, comparable to other fisheries managed under ICCAT quotas.

Response: NMFS will work to ensure that data from tournament

reports are promptly collected, compiled, and processed to provide

summary data on a timely basis. This information is part of the annual

National Report, as well as the annual SAFE report.

Comment 7: NMFS should include penalties and/or sanctions for

failing to register/and or report catch data.

Response: NMFS agrees. The Magnuson-Stevens Act currently provides

penalties and permit sanctions for regulations promulgated under the

Act. The Magnuson-Stevens Act (section 308(a)) specifies that any

person who is found by the Secretary, after notice and an opportunity

for a hearing in accordance with section 554 of title 5, United States

Code, to have committed an act prohibited by section 307 shall be

liable to the United States for a civil penalty. Section 307(1)(a) of

the Magnuson-Stevens Act states that it is unlawful for any person to

violate any provision of this Act or any regulation or permit pursuant

to this Act. Failure to register and/or report, if selected, is a

violation of the regulations and may be forwarded to NOAA General

Counsel for review.

Comment 8: The draft Atlantic billfish FMP fails to recognize or

utilize the cooperative tagging program.

Response: NMFS disagrees. The Billfish FMP amendment includes

information for Atlantic blue marlin, Atlantic white marlin, and

sailfish, on the total number of tagged and released fish over the last

43 years as part of the Cooperative Tagging Center (CTC) program.

Information on the geographical area where most of the tagging activity

occurred and during what times of year, the average distance tagged

fish traveled before recapture, and specific movement patterns

exhibited by some fish is also included

[[Page 29098]]

in this section. The CTC database was incorporated into maps with other

effort sources to assist with determining essential fish habitat

designations. The life history characteristics, gleaned in part from

the CTC data, were often a factor in the consideration of management

actions for the final FMP amendment. Recent support of a single

billfish stock is also based in part on tag recoveries, which indicate

both trans-Atlantic and trans-equatorial movement of billfish.

Comment 9: NMFS should not require permits and logbooks for charter

boats.

Response: NMFS disagrees. The 1997 ICCAT recommendation required

improvements in monitoring, data collection, and reporting from all

fisheries that encounter Atlantic billfish. The draft FMP amendment

proposed the use of mandatory permits and logbooks for charter/headboat

operations. These management measures provide catch and effort data for

Atlantic billfish that currently are not well quantified. Therefore,

NMFS maintains that permits and logbooks for charter/headboats must be

mandatory.

Comment 10: The Atlantic blue and white marlin landing caps were

generated from reported landings for 1996, when NMFS only minimally

estimated landings based on samples of selected billfish tournaments

and the Large Pelagic Survey. NMFS has proposed several improvements in

monitoring in the FMP amendment that will increase the accuracy of

landing estimates, which could unfairly reduce the number of billfish

available to be landed, relative to 1996, in order to comply with the

1997 ICCAT recommendation.

Response: NMFS agrees that a statistically valid system must be

developed to ensure an accurate comparison between 1996 and years after

monitoring accuracy is increased. A review of all available information

is currently being conducted to obtain the most accurate,

scientifically-based landings for 1996. Other methods are also being

developed to examine catch and landing rates to determine if these

values can be used to reflect the reductions in landings between 1996

and 1998, resulting from the two interim rules (March 24, 1998, 63 FR

14030; and September 29, 1998, 63 FR 51859) implemented to increase

size limits of blue and white marlin during 1998 to immediately comply

with the 1997 ICCAT recommendation.

Comment 11: NMFS should not change the fishing year. The proposed

fishing year does not reflect the true operational time frame of the

recreational billfish fishery and could disadvantage anglers and

tournaments during the spring through potential regulatory changes

implemented by NMFS to control landings to comply with ICCAT

recommendation. Also, the proposed June 1 to May 31 fishing year is

incompatible with ICCAT reporting by calendar year.

Response: NMFS disagrees. The June 1 to May 31 fishing year was

selected as a final action for the Atlantic billfish FMP to provide

NMFS with sufficient time to meet legal requirements for implementing

ICCAT recommendations (e.g., notice and comment). NMFS will report

billfish and swordfish landings to ICCAT on both a calendar year and

fishery year basis. A June to May fishing year is also consistent with

most other HMS fisheries, thereby meeting Objective 5 of FMP amendment.

If landing caps for Atlantic blue or white marlin are exceeded, as

determined by the most recent tournament and other landings data, it is

possible that NMFS would raise the minimum size to avoid exceeding the

landing caps, which could lead to spring tournaments being negatively

impacted. However, it is anticipated that the size limits implemented

in the final rule will be sufficient to avoid this possibility.

Comment 12: NMFS fails to propose any adequate mechanisms to ensure

U.S. compliance with the 1997 ICCAT recommendation for Atlantic

billfish, contrary to the mandates of ATCA. The proposed minimum size

limits and/or recreational retention limits, and the provision

providing the AA authority to adjust the retention limit to zero, will

not accurately account for all recreational landings, as required under

this ICCAT recommendation.

Response: NMFS disagrees. The FMP amendment adopts several new

monitoring, permitting, and reporting requirements to better quantify

the number of fishermen and effort. These requirements will be

evaluated as part of the annual SAFE and National Reports and if

determined inadequate, framework provisions in the FMP amendment will

be utilized. Framework provisions for possible future actions include

vessel permits for all U.S. registered vessels fishing recreationally

for Atlantic HMS and a landing tag for all recreationally landed

billfish. In the event that the ICCAT-recommended landing caps are

close to being reached, NMFS has the authority, under section 305 (d)

of the Magnuson-Stevens Act to take appropriate action.

Comment 13: The expansion of the management unit for Atlantic blue

and white marlin to the entire Atlantic Ocean, and implementation of

regulatory actions for all Atlantic billfish under both Magnuson-

Stevens Act and ATCA could result in the double reporting of

recreational landings from U.S. citizens fishing in foreign waters.

Response: NMFS disagrees. The final FMP amendment includes a final

action to expand the management unit for Atlantic blue and white marlin

to the entire Atlantic Ocean, and implement regulatory actions for

Atlantic blue marlin and Atlantic white marlin under both Magnuson-

Stevens and ATCA. NMFS will work with the Department of State, and

other agencies to ensure that fish are counted accurately and to ensure

that accurate catch data are submitted to ICCAT.

Billfish International Rebuilding Strategy

Comment 1: NMFS should negotiate with ICCAT to prohibit the

landing of billfish throughout the Atlantic Ocean.

Response: For some ICCAT member countries/entities, billfish are

used for subsistence and/or as a source of income, while others may

have a ``no discard'' policy. However, this does not preclude these

ICCAT member countries/entities from agreeing to additional management

measures. The United States must continue to work with other members to

reach a practical solution to rebuild Atlantic billfish resources.

Indeed, the United States sponsored the 1998 ICCAT resolution calling

for additional conservation measures following blue and white marlin

stock assessments in 2000 and sailfish stock assessment in 2001.

Recovery of overfished Atlantic billfish stocks will require a multi-

national approach.

Comment 2: It is mathematically impossible for NMFS to reduce U.S.

billfish mortalities by 25 percent simply by placing restrictions on

the recreational fishery. NMFS should apply the ICCAT-recommended 25

percent reduction to all U.S. sources of mortality, not just billfish

landed by recreational anglers.

Response: The 1997 ICCAT recommendation requires member countries/

entities to ``Reduce, starting in 1998, blue marlin and white marlin

landings by at least 25 percent for each species from 1996 landings,

such reduction to be accomplished by the end of 1999.'' Although the

majority of U.S. billfish mortalities reported to ICCAT are a result of

dead discards from the pelagic longline fishery, the ICCAT

recommendation only applies to U.S. recreational anglers because they

are the only U.S. sector allowed to land billfish. The United States is

obligated by ATCA to comply with this recommendation.

[[Page 29099]]

An Atlantic billfish bycatch reduction strategy is established using

the management tools included in the HMS FMP. Billfish mortality

attributed to bycatch in the pelagic longline fleet is managed through

the HMS FMP.

Comment 3: The United States has existing regulations that limit

billfish landings (size limits for recreational anglers, and

prohibitions on commercial possession of Atlantic billfish), therefore

the 1997 ICCAT recommendation does not apply to this country.

Response: NMFS disagrees. The 1997 ICCAT recommendation requires a

reduction of Atlantic blue marlin and Atlantic white marlin landings by

at least 25 percent from 1996 levels, and there is no provision

exempting countries with existing billfish regulations that limit

allowable landings. Each member is to advise ICCAT on an annual basis

of measures in place or to be taken that reduce landings of marlins or

fishing effort. The United States is complying with this recommendation

by increasing the minimum size limit of Atlantic blue marlin and white

marlin, and continuing the commercial prohibition.

Economic Impacts Resulting from Billfish Measures

Comment 1: The draft FMP amendment overlooks the negative economic

impacts of the preferred alternatives on recreational communities.

Preferred alternatives will have negative economic impacts on not just

direct participants in the Atlantic billfish fishery but travel-related

industries; fishing-related businesses; and local charities that

receive large donations from tournaments proceedings.

Response: The draft FMP amendment and the supplementary RIR/IRFA

identified, based on the best-available information, the potential

social and economic impacts of the various management measures,

including expenditures by recreational anglers. The IRFA thoroughly

discussed the recreational retention limit, along with the zero

retention limit provision, and NMFS has dropped this measure from the

final FMP amendment. NMFS has also established a voluntary observer

program for charter/headboat vessels, in part to reduce the negative

economic impacts that would be associated with a mandatory observer

program for charter boats, and has dropped the prohibition of multiple

hooks.

Comment 2: The preferred management measures selected by NMFS

ignore the greater economic value of recreational fisheries relative to

that of the pelagic longline commercial fishery.

Response: NMFS disagrees. The draft FMP amendment and the

supplementary RIR/IRFA refer to a 1989 study by Fisher and Ditton of

Texas A&M University that provided an estimated economic impact (i.e.,

money spent) of the recreational component of the billfish fishery to

be in excess of $180 million. The draft FMP amendment and the

supplementary RIR/IRFA also included an estimate of the total gross

revenues foregone from dead discards of all billfish over the eight-

year period between 1988 and 1996, $5.3 million, or $664,648 per year.

The draft FMP amendment specifically stated: ``While these values are

far from insignificant, they are considerably less than the $180

million spent each year by tournament anglers alone, and net economic

benefits of $2 million per year.''

Comment 3: NMFS should evaluate which industry (recreational or

commercial) provides the most economic value to the United States and

select management measures accordingly. The recreational billfish

community annually generates millions of dollars for the U.S. economy

(economic impact) in the pursuit of what essentially constitutes a

catch-and-release fishery. Conversely, commercially caught billfish

have no value because they must all be discarded. The total ex-vessel

value of targeted commercial species (i.e., tuna and swordfish)

contributes less to the national economy than recreational highly

migratory species anglers. Therefore, NMFS should ban use of pelagic

longline gear in the U.S. EEZ.

Response: NMFS disagrees. The final RIR and the IRFA discuss common

misconceptions of comparing recreational versus ex-vessel economic

effects. Additionally, in determining final management actions, the

economic value of a fishery is an important consideration, however it

is not the sole criterion. NMFS must consider additional factors and

consider resultant potential impacts on each fishing sector. While NMFS

recognizes the significant economic value of billfish recreational

fishery, it does not support banning the use of longline gear.

Comment 4: NMFS should reduce billfish bycatch mortality by

developing a buyout program to reduce or eliminate pelagic longline

vessel effort in the Atlantic Ocean.

Response: Consideration of a fishing capacity reduction plan, as

well constraints on buyback programs and funding mechanisms were

described in the draft FMP amendment. A buyout program can only be

effective in the reduction of billfish bycatch if the overall effort

(i.e., number of hooks in the water) is reduced. The final FMP

amendment action to establish an Atlantic billfish bycatch reduction

strategy includes buyout programs as one of six elemental components in

the HMS FMP that may be used to effectively reduce effort and longline

bycatch mortalities. NMFS may consider establishing a buyout program in

the HMS FMP after the rebuilding program in that plan is established,

along with limited access.

Comment 5: Atlantic billfish tournaments that require landing

billfish constitutes ``trade, barter, or sale.'' NMFS should prohibit

cash/merchandise prizes in association with these tournaments to reduce

the incentive to land Atlantic billfish.

Response: NMFS disagrees. Regulations state that the sale or

purchase of billfish from its management unit is prohibited (50 CFR

635.31). A survey of tournament rules has shown that a billfish is not

required to be given to the tournament to qualify for a prize, rather

the fish is only subject to a measurement of its weight. The fish is

ultimately retained as the property of the individual submitting the

fish for entry in the tournament, therefore no purchase or sale of the

billfish has occurred and the regulations have not been violated. Any

tournament that violates the prohibition on sale would be subject to

civil action. However, the final FMP amendment does not prohibit cash/

merchandise prizes in association with billfish tournaments as long as

they are not given in exchange for any billfish.

Atlantic Tunas

Comment 1: NMFS should prohibit longline and net gear (including

driftnets and purse seines) in the bluefin, yellowfin, and bigeye tuna

fisheries.

Response: Driftnet gear is already prohibited in the bluefin tuna

fishery and through this final action is prohibited in the fisheries

for other Atlantic tunas (bigeye, albacore, yellowfin, skipjack (BAYS

tunas). Pair trawls are prohibited in all Atlantic tuna fisheries.

Longline gear is restricted in the bluefin tuna fisheries with strict

target catch requirements for incidental catch retention. Through this

final action, fishermen who wish to enter the BAYS longline fishery are

required to obtain limited access permits for both Atlantic swordfish

and sharks. As such, access to the BAYS longline fishery is limited.

Since pelagic longline gear is used to target swordfish and other fish

[[Page 29100]]

species, prohibiting the gear in the Atlantic tuna fisheries would

result in increased tuna discards. NMFS maintains that there is no

reason at this time to prohibit the use of purse seine gear in the

Atlantic tuna fisheries. Bycatch concerns are minimal and access to the

fishery is limited.

Comment 2: NMFS received numerous comments regarding bluefin tuna

landings quota allocation, supporting and opposing limiting the Purse

Seine quota to 250 mt. NMFS also received requests to reallocate some

Purse Seine quota to other categories (commercial and recreational) to

reflect historical participation and/or the increase in fishery

participants (e.g., the Angling category). Comments in support of Purse

Seine quota reduction include: the Purse Seine allocation is

inconsistent with NS 4 in that the allocation is not fair and

equitable, a few individuals receive an excessive share of the landings

quota, and since Individual Vessel Quotas are transferrable, it is

conceivable that a single owner could acquire rights to the entire

Purse Seine Quota; NMFS should not incorporate the IVQ system by

reference; and NMFS should implement a buyback program for the Purse

Seine fishery. Comments in opposition to limiting the Purse Seine

category to 250 mt include: the proposed cap was neither presented in

the draft HMS FMP nor to the HMS AP for discussion, would be an

arbitrary and capricious action, and would be contrary to the Magnuson-

Stevens Act provision that NMFS ``allocate both overfishing

restrictions and recovery benefits fairly and equitably among sectors

of the fishery;'' the argument that the fishery does not contribute

catch per unit effort (CPUE) data is invalid; NMFS should not take this

action without conducting a comparative analysis of allocations leading

to ``excessive quota shares;'' and the AP, in discussing the issue of

Purse Seine quota (as referenced in the proposed rule) was referring to

relative quota shares rather than an absolute quota tonnage.

Response: As described in the FMP, NMFS bases the quota

allocations on consideration of several factors, including the

collection of the best available scientific data and the optimization

of social and economic benefits. When NMFS established the current

limited entry system with non-transferable individual vessel quotas

(IVQs) for purse seining in 1982, NMFS considered the relevant factors

outlined in section 303(b)(6) of the Magnuson-Stevens Act. In 1992,

NMFS established ``base'' quotas for all categories, which were based

on the historical share of landings in each of these categories during

the period 1983 through 1991. In 1995, NMFS reduced the Purse Seine

category base quota by 51 mt, in large part because the Purse Seine

category does not provide a catch per unit effort time series used to

estimate trends in stock size. This reduced quota was the base for the

allocation to purse seines in 1996 through 1998. NMFS believes that

limiting the future Purse Seine category to this same quota level is

fair and equitable, given that the limited entry (IVQ) system has

limited participants who are insulated from increased competition and

participation, in contrast to the other categories that are open-access

fisheries with increasing participation and intense competition for the

quota. Similarly, based on consideration of the historical

participation of those in the Purse Seine fishery, NMFS does not

believe that the allocation to the Purse Seine category, including any

possible transfers of quota within the category, constitutes an

excessive share of the bluefin tuna quota.

However, NMFS notes that the AP did not have an opportunity to

address the Purse Seine quota in the context of the quota increase.

Therefore, NMFS will hold the 8 mt in the Reserve until after the AP

has discussed the issue. If NMFS concludes that a different result is

appropriate, the Purse Seine category quota would be modified through

the framework provisions in the FMP.

NMFS has no plans to consider a vessel buyback in the Purse Seine

fishery at this time.

Comment 3: NMFS received numerous comments in support of a

prohibition on the use of spotter aircraft by vessels (other than Purse

Seine category vessels) participating in the bluefin tuna fishery,

specifying that the prohibition would, among other reasons: lengthen

the season via reduced catch rates, ``level the playing field'' for

those fishermen who do not use planes, decrease bycatch and discard of

undersized bluefin tuna, affirm the basis for the allowance of multiple

landings for the Harpoon category (i.e., dependence on good weather),

return the Harpoon category to its traditional fishing methods, and

reduce the potential for accidents. NMFS received comment that the

final rule should be issued before May 15, 1999, so that vessel owners

can choose their appropriate permit category. NMFS also received

several comments from opponents of a prohibition, including: NMFS

should address the spotter plane issue independently of the FMP and

should base its decision on the best available science; NMFS has failed

to identify the important fishery-independent data (e.g., on bluefin

tuna distribution, behavior, and environmental biology) collected by

spotter pilots and has implied in the FMP that CPUE-based indices are

the only scientific data of any importance to bluefin tuna management;

and arguments to prohibit the use of planes in the bluefin tuna fishery

are baseless. Other comments NMFS received regarding the spotter plane

issue include: NMFS should make a decision regarding an increase to the

Harpoon quota independent of the decision on spotter planes; NMFS

should implement a subquota for Harpoon vessels that are assisted by

spotter planes; NMFS should implement a daily catch limit of one

bluefin tuna per day for Harpoon vessels; and NMFS should hire spotter

pilots to conduct scientifically valid, fishery-independent aerial

surveys. NMFS also received comment that, since many General category

permit holders may obtain a Harpoon category permit if NMFS implements

a spotter plane prohibition (for vessels other than in the Purse Seine

category), NMFS should increase the Harpoon category quota.

Response: NMFS did not implement a final action regarding this

issue in the HMS FMP. A separate rulemaking will be undertaken after

further deliberation and analyses. NMFS agrees that analysis of the

effects of spotter aircraft on vessels participating in the bluefin

tuna fishery must be based on the best available science. NMFS intends

to complete a final rule on this issue prior to the commencement of the

General and Harpoon category fishing seasons, June 1, 1999, and

understands that it is preferable to announce the decision prior to the

deadline for permit category changes.

Comment 4: NMFS should not require that Atlantic tunas other than

bluefin tuna be landed with the tail attached; this regulation is

unnecessary and restrictive. The current dressing procedures, which

leave pectoral fin and the dorsal fins attached, provide the necessary

physical features for accurate species identification. Keeping tail

fins intact creates processing and storage problems for tunas that will

reduce quantity and price.

Response: NMFS recognizes the impact of the current required

landing form on commercial fishermen, especially longline fishermen.

NMFS requires the landing of Atlantic tunas with the tail and one

pectoral fin attached to facilitate enforcement of minimum size.

However, NMFS is currently analyzing yellowfin and bigeye tuna

measurement data to

[[Page 29101]]

develop a formula to convert measurements (e.g., pectoral fin to fork

measurement or pectoral fin to keel measurement) for yellowfin and

bigeye tuna landed with the head removed. NMFS may consider allowing

yellowfin and bigeye tuna to be landed with head and tail removed when

an appropriate conversion formula is developed.

Comment 5: NMFS received numerous comments regarding restricted-

fishing days (RFDs), some of which support the status quo, some of

which oppose RFDs altogether, and some suggesting alternate schedules,

including: in order to extend the General category season, NMFS should

implement more RFDs than proposed, e.g., 3 days or more per week

(Sundays, Wednesdays, and Fridays or Sundays, Mondays, and Wednesdays)

in addition to the days that correspond to Japanese market closures,

and NMFS should begin the schedule of RFDs for 1999 in early July.

Response: NMFS has considered these comments and agrees additional

General category RFDs may increase the likelihood that fishing would

continue throughout the summer and fall, and would further distribute

fishing opportunities without increasing bluefin tuna mortality. NMFS

will announce annually the General category effort control schedule

(time period subquotas and RFDs) through a final specifications notice.

NMFS intends to announce the 1999 RFD schedule and address comments

regarding effort controls in the final specifications, to be published

concurrent with this final rule. See Appendix 3 of the final HMS FMP

for the 1999 effort control schedule and a discussion of the effort

control alternatives.

Comment 6: NMFS received some comments in support of the status

quo General category time-period subquotas (three periods), and some

suggesting alternate schedules, including: NMFS should implement two

General category time-period subquotas (e.g., for June-August and

September-December) since prices are higher in August than September

and to avoid derby conditions in October.

Response: NMFS addresses comments regarding effort controls in the

1999 final specifications notice, published concurrent with this final

rule. See Appendix 3 in the final HMS FMP for the 1999 effort control

schedule and a discussion of the effort control alternatives.

Comment 7: NMFS received several comments requesting more

certainty regarding the Angling category season, retention limits, and

quota allocation, including: NMFS should implement a separate daily

retention limit for U.S. Coast Guard inspected vessels; NMFS should

separate recreational landings quotas for Charter and private vessels;

NMFS should implement more and/or different regional subquotas; NMFS

should implement date-certain seasons; NMFS should balance the entire

Angling category quota over three years; and NMFS should shift the

north/south dividing line for the Angling category. Further comment

included: NMFS should establish a set season with daily retention

limits and minimum sizes by area and make adjustments for overharvests

and underharvests annually vs. inseason. With this approach, the

recreational industry and anglers can make plans for the fishing season

that will not get disrupted by uncertain changes (i.e., closures and

adjustments to the daily retention limit). An improved data collection

program would be an important part of this and could be pursued with

industry support to provide accurate catch and effort data for quota/

stock monitoring purposes and to determine the sub-area quotas/seasons

for the following year. The annual assessment of the catch and

adjustment of the sub-area quotas should make it easier to analyze and

implement a better location for the north/south line and the

possibility of a third area in the vicinity of Montauk, New York and

north.

Response: In the HMS FMP, NMFS describes the challenges in

managing and monitoring the recreational fishery for bluefin tuna, with

its highly variable catch rates and locations, and the ICCAT

restrictions on the catch of school size bluefin tuna. In order to

monitor recreational landings of bluefin tuna, NMFS requires

cooperation from the recreational community in using the Automated

Catch Reporting System and participation in the Large Pelagic Survey.

NMFS has the authority and flexibility to open and close the Angling

category in sub-areas in order to ensure equitable fishing

opportunities. The recent ICCAT recommendation which allows 4 years for

countries to balance their landings of school size bluefin tuna also

should allow the United States more flexibility in managing this

fishery, and NMFS is committed to working with the Advisory Panel, the

States, and recreational fishermen in order to better manage the

Angling category fishery.

Comment 8: NMFS should postpone action on the bycatch measures

until it has at least a full year's data from all fishing sectors, in

order to proceed in a fair, equitable, and effective manner.

Response: NMFS has based the bycatch measures on the best available

information. Further, NS 9 requires NMFS to minimize bycatch to the

extent practicable.

Comment 9: NMFS should permit spearguns as an allowable gear type

in the Atlantic tunas Angling category fishery.

Response: The fishery for Atlantic tunas is subject to intense

competition among the various user groups; the addition of spearguns as

an allowable gear type could cause additional conflict among the user

groups, and may pose other problems including safety and discard

concerns. Therefore, NMFS is not adding spearguns as an allowable gear

type at this time.

Comment 10: NMFS received numerous comments for and against the

proposed recreational daily retention limit of 3 yellowfin tuna per

angler. Those in support of the retention limit include: NMFS has

ignored the expansion of the recreational yellowfin tuna (and bigeye

tuna) effort despite the U.S. commitment to ICCAT to limit effective

yellowfin effort to the reported 1992 level, so NMFS should implement

recreational restrictions now; a daily retention limit of 3 yellowfin

tuna per angler is excessive; NMFS should implement a yellowfin tuna

daily retention limit since yellowfin tuna seem to be of less weight

than in previous years. Comments in opposition to the retention limit

include: As yellowfin tuna are not currently considered overfished,

there is no basis for a yellowfin tuna daily retention limit; a limit

now may lead to a further reduction of the retention limit in

subsequent years, as has happened in the bluefin tuna fishery; NMFS has

proposed no commercial limits, so the recreational limit is

inequitable; setting a recreational daily retention limit may

disadvantage the United States in ICCAT negotiations (if a yellowfin

tuna quota is recommended in the future) if it results in decreased

U.S. landings; a retention limit would have a negligible impact on

fishing mortality since on most trips, each angler lands 3 or fewer

yellowfin tuna, and in many areas, captains voluntarily limit each

angler to 3 or fewer yellowfin tuna; there is no domestic benefit for

the regulation since U.S. landings comprise only approximately 4

percent of the Atlantic landings; and until NMFS has scientific data

that show that the implementation of daily retention limits is

warranted, NMFS should not take any action that affects only the

recreational sector.

Response: NMFS acknowledges the importance of yellowfin tuna to

the recreational fishing industry. NMFS chooses to take the

precautionary approach since the latest SCRS report

[[Page 29102]]

indicates that the current fishing mortality rate on yellowfin tuna is

probably higher than that which would support maximum sustainable yield

on a continuing basis. Further, effort restrictions are consistent with

the ICCAT recommendation to limit effective fishing effort for

yellowfin tuna to 1992 levels. NMFS has already implemented, or is

implementing through the HMS FMP, several restrictions in the

commercial yellowfin tuna fisheries, including limited access in the

purse seine and longline BAYS fisheries, and the prohibition on pair

trawl gear and driftnets in the Atlantic tunas fishery. NMFS maintains

that limiting access to the recreational yellowfin tuna fishery is not

desirable at this time and that the retention limit is an alternative

management measure that is consistent with the ICCAT recommendation.

This retention limit for yellowfin tuna is designed to prevent

excessive landings in the recreational fishery and maximize long-term

fishing opportunities.

Comment 11: NMFS should allow dealers more than 5 days after the

completion of each bi-weekly reporting period to submit bluefin tuna

bi-weekly reports. Price information is not available for bluefin tuna

shipped to Japan until 4 days after landing, and allowing dealers only

one day to submit the information is unreasonable.

Response: NMFS agrees, and understands that the proposed reporting

requirement may be difficult for dealers to comply with considering the

market for bluefin tuna. Therefore, NMFS is not modifying the current

10-day reporting period for bluefin tuna bi-weekly reports.

Comment 12: NMFS should not hold 20 mt of the Angling category

school bluefin tuna subquota in reserve, given that NMFS may now

balance overharvests and underharvests over a four-year period.

Response: Because of high, and highly variable catch rates, the

Angling category can easily harvest and exceed its school bluefin tuna

subquota. NMFS maintains that holding some school bluefin tuna landings

quota in reserve is prudent in that it will help to ensure U.S.

compliance with the ICCAT-recommended limit on the retention of school

bluefin tuna. NMFS may allocate tonnage from the school bluefin tuna

reserve during the season, as appropriate.

Comment 13: The provision to add or deduct bluefin tuna

underharvest or overharvest, as applicable, should be discretionary

only for school bluefin tuna, which can be balanced over a four-year

period. For all other size classes, the provision should be mandatory.

Response: NMFS agrees and has clarified the regulations to be

consistent with the ICCAT recommendation. In the case of bluefin tuna

overharvest or underharvest, NMFS must subtract the overharvest from,

or add the underharvest to, the appropriate quota category, or

subcategory, with the exception of the Angling category school bluefin

tuna subcategory, for the following fishing year, provided that the

total of the adjusted landings quotas and the Reserve is consistent

with the ICCAT Rebuilding Program. In the following year, NMFS also may

allocate any remaining landings quota from the Reserve to cover this

overharvest, consistent with the established criteria.

For the Angling category school bluefin tuna subcategory, because

of the ICCAT-recommended 4-year balancing period, NMFS may subtract the

overharvest from, or add the underharvest to, the school bluefin tuna

subquota for the following fishing year. NMFS must, prior to the end of

the 4-year balancing period, make adjustments to account for

overharvest of school bluefin, if necessary to comply with the ICCAT

Rebuilding Program.

Quota monitoring in the bluefin tuna fishery is difficult and

overharvests are likely, thus accounting for overharvests will not be

``punitive,'' in that one category or subcategory's landings quota

overharvest will not be redistributed to other categories. While some

comments submitted to NMFS have suggested that categories should be

``rewarded'' or ``punished'' for their under/overharvests as described

above, NMFS maintains it is not the intent of ICCAT or a domestic

management objective to redistribute quota from one category to another

due to overharvest. The ICCAT provision regarding overharvest and

underharvest is designed to address consistent mortality, not just

compliance.

Comment 14: The Angling category fishery should be catch and

release only.

Response: NMFS considered the elimination of the small fish

landings quota for bluefin tuna, but rejected this alternative because

the elimination of the school, large school, and small medium bluefin

tuna fishery would have adverse social and economic impacts on the

recreational and charter/headboat sectors, and would reduce NMFS'

ability to collect the best available data on the catches of the

broadest range of age classes possible for stock assessment purposes.

Comment 15: Commercial yellowfin tuna landings should be reduced

by at least 50 percent.

Response: As indicated in a previous response, NMFS has taken

numerous measures to restrict the commercial yellowfin tuna fisheries.

Therefore, NMFS maintains that no further action regarding the

commercial yellowfin tuna fisheries is necessary at this time. NMFS is

concerned about the level of fishing mortality on this stock, and will

continue to monitor the status of the yellowfin tuna fisheries.

Comment 16: NMFS should continue to allow the traditional harvest

of skipjack, bonito, and bait fish with driftnet gear. This gear has

been used off the coast of New Jersey for 11 years. This is a clean

fishery with no bycatch of marine mammals or endangered species. The

draft HMS FMP shows that skipjack and bonito stocks are underutilized

and U.S. catches are at low levels. The fisheries for skipjack and

bonito are mixed; a directed fishery for bonito cannot be pursued

without skipjack as bycatch.

Response: Because the Magnuson-Stevens Act does not include bonito

in its definition of HMS, NMFS is not implementing bonito conservation

and management measures in this FMP. NMFS recognizes that the

prohibition on driftnets for Atlantic tunas would preclude a small

coastal driftnet fishery from retaining its catch of skipjack. NMFS may

issue EFPs to the limited number of coastal driftnet fishermen affected

by the gear prohibition in order to collect more information on this

fishery and help determine NMFS' future course of action. Individuals

who wish to use driftnet gear when targeting species other than

Atlantic tunas may apply to NMFS for an EFP to land incidentally caught

Atlantic tunas (other than bluefin).

Comment 17: NMFS should allow individuals renting vessels to obtain

an Atlantic tunas permit (e.g., for tourists in the U.S. Virgin Islands

and Puerto Rico).

Response: Any vessel with state registration or U.S. Coast Guard

documentation may obtain an Atlantic tunas permit. Individuals

chartering or renting a vessel for which NMFS has issued an Atlantic

tunas permit are therefore eligible to fish for Atlantic tunas.

Comment 18: The existing and proposed bluefin tuna regulations

violate the Magnuson-Stevens Act, specifically NS 1. The HMS FMP should

include a valid designation of MSY, OY, and EFH, using the

precautionary approach, as well as objective and measurable criteria

for defining overfishing and the measures for ending overfishing and

rebuilding the fishery. The ICCAT rebuilding program also

[[Page 29103]]

violates NS 2, which requires the use of the best scientific

information available, and it was adopted without public input. NMFS

must explain why it is using untested models to set MSY. Additional

measures that should be included in the HMS FMP include increased

observer coverage, minimization of bycatch in spawning areas such as

the Gulf of Mexico, and minimization of bycatch by regulating longline

fishing gear.

The HMS FMP and proposed regulations also violate the United

Nations Agreement on Straddling Stocks, which requires the application

of the precautionary approach in the management of fish such as bluefin

tuna.

Response: The ICCAT rebuilding program meets the standards of the

Magnuson-Stevens Act in that it includes an appropriate time period,

targets, limits, and explicit interim milestones for recovery; NMFS

indicated in the draft FMP that adoption of the ICCAT rebuilding

program would be the preferred alternative if these standards were met.

The ICCAT rebuilding program is based on the SCRS stock assessment,

which is the best scientific information available. It is consistent

with both the Magnuson-Stevens Act and the Atlantic Tunas Convention

Act in that it implements a quota equal to the ICCAT-recommended

allocation for the United States, and maintains traditional fishing

patterns of U.S. vessels. The bluefin tuna rebuilding program is

precautionary in that it provides the flexibility to modify the Total

Allowable Catch, the MSY target, and/or the rebuilding period based on

subsequent scientific advice.

Finally, note that NMFS is implementing a time/area closure and a

limitation on length of the mainline to reduce pelagic longline dead

discards.

Comment 19: In the draft FMP, NMFS has used definitions and

methodologies that ascribe higher values to the recreational fishery or

the ``existence value'' of HMS than to the ``net economic benefits'' of

the commercial fishery. NMFS appears to interpret NS 8 as less equal

than NS 1.

Response: NMFS disagrees; NMFS is not ascribing higher values to

the recreational fishery, or the ``existence value'' of HMS. To prepare

this FMP in accordance with the Magnuson-Stevens Act, NMFS has

addressed the National Standards for both the commercial and

recreational sectors using the best available information. In addition,

the NSGs state that the consideration of community impacts must not

compromise the achievement of conservation requirements.

Comment 20: Regarding public hearings, NMFS should ensure that

individuals be provided an environment in which they can express their

comments for the record. At a few of the HMS FMP public hearings, some

individuals felt physically or otherwise threatened by other attendees

while or after making their comments and have expressed that they will

not give comments at public hearings until NMFS addresses this issue.

Response: NMFS is very concerned about comments that concern for

personal safety is hindering the public process. NMFS agrees that all

attendees at public hearings should be able to articulate their

comments in a safe environment. Public comment is an essential part of

rulemaking, and public hearings can be an important element in the

public comment process. NMFS acquires good information from the

comments presented at public hearings and expects members of the public

to conduct themselves appropriately for the duration of the meeting. At

the beginning of each public hearing, a NMFS hearing officer explains

the meeting ground rules (e.g., attendees will be called to give their

comments in the order in which they registered to speak, each attendee

will have an equal amount of time to speak, and attendees should not

interrupt one another). The hearing officer attempts to structure the

meeting so that all attending members of the public are able to

comment, if they so choose, regardless of the controversiality of the

subject(s). Attendees are expected to respect the ground rules, and if

they do not, they will be asked to leave the hearing. In the future,

when announcing HMS public hearings or scoping meetings, NMFS will

include in the notice a reminder of the ground rules for these

meetings.

Comment 21: In the FMP, the objectives for bluefin tuna management,

especially those regarding the preservation of traditional fisheries

and historical fishing patterns, should be listed separately, as should

the objectives for the other HMS fisheries, and the seven objectives

(three listed in the 1995 bluefin tuna Final EIS and four in a 1992

bluefin tuna final rule) should be included. This will be especially

important for future ICCAT negotiations as other nations may seek a

portion of the west Atlantic Total Allowable Catch.

Response: In preparing one FMP for the management of Atlantic

tunas, swordfish, and sharks, NMFS has chosen to list the management

objectives together. However, NMFS has added language to the objectives

to include preserving traditional fisheries as well as historical

fishing patterns and participation.

Comment 22: NMFS should allocate the fair share of the 1998 ICCAT-

recommended U.S. landings quota increase to the Incidental category,

the Harpoon category, and the Purse Seine category, and should ensure

that any future landings quota increases be distributed fairly and

according to each user group's historical share of the fishery. NMFS

does not need to maintain such a large reserve, given the improvements

in commercial quota monitoring, the new 4-year balancing period for

school bluefin tuna, and the proposed school bluefin tuna reserve. NMFS

should allocate 17 mt from the Reserve to the Harpoon category quota,

to reflect the Harpoon category's traditional participation in the

fishery.

Response: The FMP implements percentage share allocations for

bluefin tuna, and all categories other than the Purse Seine category

will share in the impacts of both quota increases and reductions (see

response to comment 2). Bluefin tuna allocation issues were discussed

extensively at several HMS AP meetings in 1998, and there was general

support for maintaining the 1997/1998 quota allocations (which are

based upon the historical share of landings in each of these categories

during the period 1983 through 1991, modified in 1995 and 1997). While

NMFS agrees that improved commercial bluefin tuna monitoring, along

with the 1998 ICCAT recommendation and the measures adopted in this

FMP, allow for more flexible management of the fishery, NMFS maintains

that the Reserve is necessary to ensure that the United States does not

exceed its ICCAT-recommended landings quota, and to utilize it for

inseason or post-season transfers as necessary and appropriate.

Comment 23: In order to avoid potential bycatch mortality, NMFS

should not implement a daily retention limit for the Incidental other

subcategory (e.g., for traps), but rather should allow landings until

the quota is filled.

Response: The FMP eliminates the Incidental permit category for

Atlantic tunas, and creates two new categories: ``Longline'' to reflect

the existing authorization of directed longline fisheries for tunas

other than bluefin tuna, and ``Trap'' to account for unavoidable catch

of bluefin tuna by pound nets, traps, and weirs. To address enforcement

issues concerning unauthorized landings of bluefin tuna under the

Incidental category quota, fixed gear other than ``traps'' and purse

seines for non-tuna fisheries will no

[[Page 29104]]

longer be allowed to land bluefin tuna. Because of the limited ``Trap''

quota, and the infrequent catch of bluefin tuna by pound nets, traps,

and weirs, NMFS maintains that the proposed one fish per year retention

limit for the Trap category is sufficient, and will not result in

additional bycatch.

Comment 24: The comment period for the Bluefin Tuna Addendum was

not long enough.

Response: NMFS filed the supplemental proposed rule regarding

bluefin tuna issues on February 22, 1999, and express-mailed copies of

the Bluefin Tuna Addendum to AP members and other consulting parties to

maximize time to review the document before the deadline for comments.

In response to public requests that additional time was needed to

review the Addendum, NMFS subsequently extended the comment period

deadline (except for proposed swordfish import restrictions) to March

12, 1999, to allow for 2 weeks of additional comments, and added a

public hearing at the end of the scheduled 26 hearings.

Atlantic Swordfish

Swordfish Rebuilding

Comment 1: NMFS received many comments in support of swordfish

rebuilding programs with various timetables, including the adoption of

an ICCAT-recommended rebuilding program and rebuilding programs shorter

than 10 years.

Response: NMFS must implement the ICCAT-recommended quota once it

is accepted by the United States, and has supported the development of

a rebuilding program for swordfish by ICCAT scientists. NMFS believes a

10-year rebuilding program for North Atlantic swordfish is appropriate.

NMFS considered a shorter rebuilding program but seeks to balance a

reduction in short-term impacts on small businesses and recovery of the

stock.

Comment 2: NMFS should ban swordfish fishing for 5 years.

Response: The United States cannot reduce the swordfish quota to

zero for 5 years; the United States is required by ATCA to adopt ICCAT

quotas once the United States accepts the ICCAT recommendation. NMFS is

establishing a foundation for working through the ICCAT process, to

develop an international rebuilding program for Atlantic swordfish once

measures are accepted by the United States. Unilateral action will not

rebuild swordfish. Banning U.S. swordfish fishing will not rebuild the

stock; international action is necessary.

Comment 3: NMFS should have a clear statement of objectives and

measures for the international rebuilding of swordfish, contrary to

what happened at ICCAT in 1998 with bluefin tuna. Those objectives

should include a 10-year rebuilding program with associated quota

reductions, closed spawning areas to reduce bycatch of juvenile

swordfish, and a reduction in fishing capacity.

Response: The ICCAT Advisory Committee (IAC) works with the U.S.

commissioners to ICCAT and NMFS to develop the negotiating strategy at

ICCAT. The HMS FMP serves as the foundation for developing an

international rebuilding program that is consistent with the Magnuson-

Stevens Act; the final action states that NMFS believes a 10-year

program is appropriate. The IAC and commissioners will seek comment on

the U.S. position at ICCAT at five regional meetings in the Fall of

1999 as well as at the IAC meeting scheduled for October 1999.

Comment 4: NMFS should include an allowance for having swordfish

fillets/steaks on board for personal consumption, similar to the

groundfish fishery management plan.

Response: NMFS cannot implement this measure at this time because

it was not contained in the proposed rule (or draft FMP). However, NMFS

has studied similar existing regulations in other fisheries and may

raise the issue at a future meeting of the HMS Advisory Panel.

Comment 5: NMFS should reinstate the commercial retention limit

(trip limit) for swordfish to help maintain higher prices and make sure

quotas are not exceeded.

Response: NMFS established the commercial retention trip limit in

order to slow catch rates. Since that time, many large capacity vessels

have left the Atlantic pelagic longline fishery. If a need arises in

the future, NMFS will consider other commercial retention limits, as

well as other alternatives, for addressing these problems.

Comment 6: NMFS should not exempt vessels with a vessel monitoring

system (VMS) unit from the swordfish retention limits in the North

Atlantic Ocean during a closure of that directed fishery. Vessels could

make one set south of the line, come north, and then continue to make

sets north of the line and NMFS would not know where the swordfish were

caught.

Response: VMS is required by all pelagic longline vessels, and

regulations have been altered to accommodate this measure, therefore,

there is no ``exemption.'' NMFS agrees that VMS does not indicate how

many swordfish are caught in a set. However, VMS would reveal if a

longline set was made in the (closed) north Atlantic, should such a

violation occur. It is not necessary to know the number of fish caught

in a closed area to impose civil penalties.

Comment 7: When the quota for swordfish landings is met, no

swordfish imports should be allowed into the United States.

Response: NMFS disagrees. Trade restrictive measures must be based

on strong evidence that there are resource conservation benefits to

such measures and must be consistent with international legal

obligations. Note also that NMFS has implemented a final rule

prohibiting the import of Atlantic swordfish less than the ICCAT

alternative minimum size, and requiring documentation of the source of

all swordfish imports in an effort to better monitor international

fishing levels.

Comment 8: The swordfish data collected off the coast of south

Florida in the 1980s are biased and incomplete. The fishery was

severely depleted at that time due to the expansion of the near-shore

longline fishery off Florida, which adversely affected juvenile and

migrating fish.

Response: The data collected on fishing mortality of juvenile and

migrating swordfish off Florida in the 1980s are currently the best

available scientific information to reflect the historical conditions

of that fishery. However, if additional data become available, they

could be incorporated in the stock assessment.

Swordfish Recreational Fishery

Comment 1: NMFS received many comments on the issue of accounting

for recreational fishing mortality, including suggestions for future

monitoring programs. These suggestions included maintaining the status

quo, establishing a new recreational directed fishery quota, or

supporting the proposed measure of subtracting recreational landings

from the incidental catch quota.

Response: NMFS needs time to assemble the historical data that

exist and therefore cannot set a reasonable recreational directed

fishery quota at this time. However, NMFS recognizes that effort in

this sector is growing as swordfish encounters appear to be increasing

in some areas and therefore swordfish recreational landings need to be

subtracted from the U.S. swordfish quota. NMFS will subtract

recreational swordfish landings from the incidental catch quota and may

establish a directed

[[Page 29105]]

fishery quota and monitoring program, when and if appropriate.

Comment 2: NMFS should establish a recreational swordfish

retention limit of 1 swordfish per person per day.

Response: NMFS disagrees. Recreational directed fishing mortality

is not sufficiently known at this time to determine the impacts of a

recreational retention limit for swordfish. Retention limits may be

established in the future through the framework process.

Comment 3: The proposed regulations imply that if the recreational

catch is subtracted from the Incidental catch quota and that quota

category closes because the quota is met, then there will be a closure

of the recreational fishery.

Response: NMFS' intent is to account for all sources of mortality,

including the recreational catch of swordfish. Therefore, if the

incidental catch quota category is closed, all fishermen who catch

swordfish incidentally, including all recreational fishermen, must

release them. As noted in Comment 1 in this section, NMFS may consider

a subquota for recreationally-caught swordfish in the future.

Counting Dead Discards Against the Swordfish Quota

Comment 1: NMFS received many comments on the issue of accounting

for all sources of mortality on the swordfish stock. These comments

supported either unilateral or multilateral (or both) measures to count

dead discards against overall quotas.

Response: NMFS agrees that accounting for all sources of mortality

will enhance rebuilding, and this FMP establishes the foundation to

count dead discards against the swordfish quota. NMFS cannot count dead

discards against the ICCAT quota unless recommended by ICCAT.

Comment 2: If NMFS counts dead discards of swordfish against the

quota, then NMFS should eliminate the minimum size and allow fishermen

to land and utilize all hooked swordfish.

Response: NMFS implemented the alternative ICCAT minimum size of 33

lb dw in 1996 and has implemented a ban on sale of swordfish less than

that size in the United States. Counting dead discards against the U.S.

quota may serve as an incentive for fishermen to avoid areas of small

swordfish concentration. By coupling a minimum size measure with a

future time/area closure, NMFS' intent is to reduce U.S. mortality of

undersized swordfish.

Comment 3: Allocation of quotas should be gear-specific and

discards should be counted against these specific gear allocations.

Response: NMFS authorized longline, harpoon, and other handgear

fishermen to fish for Atlantic swordfish in a directed commercial

fishery. NMFS does not intend to further sub-divide the directed quota

at this time due to low swordfish landings by handgear fishermen. Dead

discards would be counted against the entire category.

Comment 4: NMFS counted swordfish dead discards against the quota

in the past and it did not make a difference to the stock.

Response: NMFS has always monitored and reported dead discards in

the commercial swordfish fishery to ICCAT, and this mortality was taken

into account in assessing total mortality of swordfish. NMFS wants to

account for all sources of mortality, and to create every incentive for

vessel operators to minimize bycatch and bycatch mortality of HMS.

Rebuilding swordfish stocks requires more than just accounting for dead

discards, it requires a decrease in fishing mortality rate to rebuild

overfished stocks. In the past, the fishing mortality rate was too high

and has resulted in overfishing, regardless of whether dead discards

were included in the quota.

Swordfish Size Limits

Comment 1: NMFS should consider eliminating the minimum size limit

for swordfish because other countries keep all their swordfish.

Response: A minimum size is effective only if it results in a

decrease in catch of small swordfish because fishermen are able to

modify their behavior or if the survival of released fish is

sufficiently high to offset the fishing mortality that may result.

Fishermen have been able to reduce small swordfish bycatch to a certain

extent, but additional measures may now be necessary to enhance the

effectiveness of the minimum size (e.g., time/area closures.) NMFS

recognizes the need for further progress in reducing small swordfish

mortality, and will use all available information to consider other

measures to do so (e.g., time/area closures, gear modifications, etc.)

Comment 2: The United States has failed to comply with ICCAT

recommendations to protect juvenile swordfish.

Response: NMFS has adopted the alternative minimum size for

swordfish, has prohibited the sale of undersized swordfish, and keeps

appropriate records of swordfish discards. All of these measures are

consistent with ICCAT recommendations to protect small swordfish.

Comment 3: NMFS received many comments on the minimum size for

swordfish that ranged from maintaining the status quo to adopting a

schedule of small annual increases in the swordfish minimum size limit

above the current minimum size limit of 33 lb (15 kg) dressed weight

(dw). Other comments: include the minimum size in the framework;

consider more creative options for minimum sizes such as changing

tolerance levels so the swordfish are not wasted; and consider options

that would be acceptable in the international context to reduce size

compliance issues that would otherwise undercut rebuilding schedules.

Response: Reducing mortality of small swordfish is important to the

recovery of the stock. Increasing the minimum size in increments over

time, however, makes it difficult to assess changes in stock size and

structure due to the way size-specific abundance data are collected.

Increasing the minimum size might increase longline discards given the

fact that swordfish do not segregate by size class throughout the

Atlantic. NMFS prefers to maintain the minimum size and implement time/

area closures, gear modifications, and other measures to reduce bycatch

of undersized swordfish and increase survival of released fish. NMFS

has included the swordfish minimum size in the FMP framework and is

addressing small swordfish bycatch reduction through development of

more effective time/area closures of the pelagic longline fishery.

Atlantic Sharks

Shark Fishing Gears

Comment 1: NMFS should prohibit commercial fishing gears; NMFS

should prohibit longline gear.

Response: NMFS disagrees. The final actions in the HMS FMP are

expected to meet the conservation goals to rebuild large coastal sharks

(LCS) and prevent overfishing of pelagic and small coastal sharks (SCS)

while allowing limited commercial harvest of sharks to continue.

Comment 2: NMFS should ban shark drift gillnets because of

excessive bycatch of finfish and protected species in that fishery, and

because the Atlantic Large Whale Take Reduction Plan (ALWTRP)

regulations do not address sea turtle and finfish bycatch issues.

Response: NMFS is gathering information on the effect of drift

gillnets in Atlantic shark fisheries on protected species, juvenile

sharks, and other finfish. However, because the limited data available

at this time do not indicate high bycatch and bycatch mortality of

protected species, juvenile sharks, and other finfish in the shark

drift gillnet fishery, NMFS is not

[[Page 29106]]

prohibiting use of this gear in shark fisheries at this time,

consistent with NS 2 which requires that management measures be based

on the best scientific information available. NMFS requires 100 percent

observer coverage in the southeast shark drift gillnet fishery at all

times to increase data on catch, effort, bycatch and bycatch mortality

rates in this fishery.

Comment 3: NMFS should not adopt the ALWTRP regulations, which are

implemented under the Marine Mammal Protection Act, under Magnuson-

Stevens Act because the purposes and goals of the Acts are different.

Response: NMFS believes that adoption of these regulations under

the Magnuson-Stevens Act will increase effective regulatory consistency

by regulating fishing activities under the authority of the Magnuson-

Stevens Act to comply with Marine Mammal Protection Act objectives.

NMFS is currently considering the implications of several regulations

that affect the practice of strikenetting in the shark drift gillnet

fishery. These regulations include the List of Fisheries and Gear under

the Magnuson-Stevens Act (64 FR 4030), the ALWTRP regulations under the

Marine Mammal Protection Act (64 FR 7529), and the proposed rule to

implement the HMS FMP (64 FR 3154). NMFS will address any

inconsistencies through future regulatory and other actions.

Comment 4: NMFS should require 100 percent observer coverage in the

southeast shark drift gillnet fishery to make sure that all bycatch is

documented.

Response: NMFS agrees.

Comment 5: The ALWTRP regulations, which are effective in April,

1999, will have huge economic impacts on, and may eliminate, the

southeast shark drift gillnet fishery due to the prohibition on night

sets.

Response: The economic effects of the regulations implementing the

ALWTRP were considered in that rulemaking (62 FR 39175, July 22, 1997;

64 FR 7529, February 16, 1999).

Comment 6: NMFS should not require 100 percent observer coverage in

one fishery; observer coverage should be comparable in all fisheries.

Response: NMFS agrees that observer coverage should be comparable

in that the level of coverage should be adequate to meet scientific and

management data needs. NMFS disagrees that levels of observer coverage

must be the same across fisheries that use different gear, fish in

different areas, or have different bycatch rates.

Comment 7: NMFS should consider converting all shark drift gillnet

boats to longline gear to reduce bycatch and the costs of monitoring

this fishery.

Response: NMFS believes that the combination of the measures in the

HMS FMP, including capping the SCS quota, the requirement for 100

percent coverage at all times in southeast shark drift gillnet fishery,

and adoption of the ALWTRP regulations under Magnuson-Stevens Act, are

appropriate to address bycatch concerns in this fishery at this time.

Comment 8: NMFS should require species-specific reporting in the

menhaden purse seine fishery, count all dead discards of sharks against

the commercial quotas, and encourage use and development of bycatch

excluder devices.

Response: NMFS agrees that more species-specific reporting and

increased observer coverage may be warranted to determine the catch,

effort, and bycatch and bycatch mortality rates in the menhaden purse

seine fishery. NMFS intends to fully analyze available information and

will work with the appropriate regulatory agencies to consider

additional management measures in the future as necessary.

Comment 9: NMFS should implement the authorized gears for sharks as

proposed.

Response: NMFS agrees. NMFS is currently considering the

implications of several regulations that affect the practice of

strikenetting in the shark drift gillnet fishery. These regulations

include the List of Fisheries and Gear under the Magnuson-Stevens Act

(64 FR 4030), the ALWTRP regulations under the Marine Mammal Protection

Act (64 FR 7529), and the proposed rule to implement the HMS FMP (64 FR

3154). NMFS will address any inconsistencies through future regulatory

and other actions.

Sharks-General

Comment 1: The original FMP is working and NMFS should give the

regulations a chance to be reflected in the science before making more

changes.

Response: NMFS disagrees. The final HMS FMP measures for Atlantic

sharks are in large part based on 1998 Shark Evaluation Workshop

results that indicate that additional reductions in effective fishing

mortality are necessary to rebuild LCS. The HMS FMP also implements

several precautionary measures for pelagic and SCS in order to prevent

these species from being overfished.

Comment 2: NMFS should ensure that states implement similar size

restrictions for sandbar sharks; effective LCS and SCS management will

require coordination with regional councils and states.

Response: NMFS has asked states to attend AP meetings and to

implement regulations consistent with Federal regulations. Several

states have implemented or are in the process of implementing

consistent or more stringent shark regulations. NMFS intends to

continue to work with the Atlantic and Gulf coastal states, the

regional fishery management councils, and the regional commissions to

coordinate consistent regulations for sharks in state and Federal

waters.

Comment 3: NMFS developed management options without international

consensus and has failed to pursue comparable shark conservation

throughout the range of these species. NMFS should justify implementing

unilateral actions when international actions are necessary to rebuild

shark stocks.

Response: Domestic action is warranted due to the fact that several

important nursery areas are located within U.S. waters and that

proactive domestic management is a critical element for successful

international shark management. NMFS disagrees that it has failed to

pursue comparable shark conservation internationally. The United States

was a leading participant in the recent FAO Consultation on Shark

Conservation and Management, which resulted in the adoption of the

Global Plan of Action for Sharks. ICCAT is pursuing additional data

collection and analyses on sharks through its current authority. NMFS

is also pursuing regional management through cooperative discussions

with Canada and Mexico.

Comment 4: NMFS must increase observer coverage and port sampling

(perhaps to 50 percent of fishing effort) to determine the

effectiveness of the measures in the HMS FMP, particularly the

effectiveness of minimum sizes to reduce fishing mortality on juvenile

sandbar and dusky sharks, and to determine bycatch and bycatch

mortality of prohibited species and undersized fish. NMFS should

conduct length frequency monitoring on an annual basis.

Response: NMFS agrees that observer coverage, port sampling, and

length frequency monitoring can be important tools in evaluating the

effectiveness of the final actions, including the prohibition on

possession of dusky sharks. One of NMFS' goals is to ensure that

monitoring and observer coverage meet scientific assessment needs. NMFS

[[Page 29107]]

intends to take practicable steps to increase observer coverage.

Comment 5: NMFS should consider regional differences in its

management.

Response: NMFS agrees and has attempted to do so in the development

of the HMS FMP. NMFS believes that the establishment of ridgeback and

non-ridgeback LCS subgroups and the new procedures to adjust for quota

over/underharvest address these concerns.

Comment 6: NMFS received several comments regarding minimum sizes

for sharks, ranging from a minimum size of 4 feet and 4.5 feet for all

sharks, 5 feet for all sharks, 3 feet for all small sharks, 6 feet for

large sharks, 6 feet for mako and thresher sharks, 7 feet for LCS, and

8 feet for blue sharks, and support for using slot limits for sharks.

Response: NMFS agrees with use of minimum sizes as a tool to reduce

effective fishing mortality on sharks. For this tool to be successful,

it must be relatively simple, comprehensive, and enforceable. NMFS has

selected the most efficient minimum size limit for accomplishing the

FMP objectives within these constraints. NMFS may consider additional

management measures, including increasing minimum sizes and slot

limits, in the future.

Comment 7: NMFS should do population assessments in 1999 for

pelagic sharks and in 2000 for SCS.

Response: NMFS agrees that the stock status of pelagic sharks and

SCS should be assessed at the soonest practicable time. The ICCAT SCRS

bycatch subcommittee will be analyzing pelagic shark catch rates in May

1999, and the United States will participate in that meeting.

Additional stock assessments will be conducted as practicable.

Comment 8: NMFS should establish all catch and release or tag and

release fishing for sharks.

Response: NMFS disagrees. NMFS believes that limited harvest of

some sharks subject to reduced retention limits and a minimum size in

commercial and recreational fisheries meet the conservation goals to

rebuild overfished species and prevent overfishing while minimizing

social and economic impacts that an all tag-and-release fishing

requirement would impose.

Comment 9: NMFS should rebuild coastal sharks within 30 years.

Response: NMFS agrees that the 30 year rebuilding program for the

non-ridgeback LCS species outlined in the HMS FMP is appropriate.

However, for the ridgeback LCS species, NMFS believes that a 39-year

rebuilding program is appropriate because of the sandbar shark (the

primary ridgeback LCS) life history.

Comment 10: Analyses of total mortality may be in error if

``catch'' vs. ``harvest'' data are used, especially for sharks.

Response: NMFS agrees and the sections in the final HMS FMP that

describe recreational fisheries, particularly for shark recreational

fishing mortality, have been clarified and uniformly refer to

recreational landings or harvest, not catches, consistent with MRFSS

terminology.

Comment 11: NMFS should dissolve the Operations Team (OT) because

the HMS AP fulfills the OT's role.

Response: NMFS agrees.

Comment 12: NMFS should initiate species identification training

for sharks.

Response: NMFS agrees and intends to increase public education and

outreach including workshops and the production of an identification

guide for all HMS.

Shark Public Display Permitting and Reporting

Comment 1: NMFS should implement the proposed shark EFP process

because it is necessary to track/enforce the regulations.

Response: NMFS agrees.

Comment 2: NMFS should extend the reporting period to 72 hours at a

minimum and ideally to 5 days to allow collectors time to determine

whether the animal can adapt to the aquarium (if not, the animals are

released alive).

Response: NMFS agrees. In the draft HMS FMP, NMFS proposed to

require EFP holders to mail in the information cards for authorized

collections within 24 hours of collection to increase the ability to

track and enforcement of authorized EFP activities. NMFS received

several comments that supported extending the reporting period, and

that were consistent with the intention of selected EFP process.

Therefore, NMFS extends the reporting period to 5 days to allow

collectors time to determine the health of the animal.

Comment 3: NMFS should not require American Zoo and Aquarium

Association (AZA) membership in order to get an EFP because it is

expensive and new aquariums cannot join until they've been open for a

couple of years.

Response: NMFS agrees. The draft HMS FMP did not specifically

propose to require AZA membership in order to receive an EFP, but did

discuss the possibility of linking EFP issuance to AZA membership due

to the detailed protocol and facility requirements for membership. Due

to the inability of new aquariums to obtain AZA accreditation and the

burden and expense of the accreditation process, NMFS will not require

AZA accreditation but will consider AZA accreditation, or equivalent

standards, as meeting the requirement to provide adequate facilities

for animal husbandry (under merits of the application).

Comment 4: NMFS should implement quarterly quotas for EFPs to

ensure fair and equitable allocation of animals under the public

display quota.

Response: NMFS disagrees. The HMS FMP does not establish quarterly

quotas for EFPs because the selected annual quota of 60 mt ww should be

sufficient to ensure fair and equitable allocation. Should the requests

for sharks public display collections increase in the future, NMFS will

reconsider the public display quota at that time.

Comment 5: NMFS should not implement the public display quota

because the take is insignificant, the delays and burden in the current

system are manageable, and aquarium people are honest.

Response: NMFS does not believe that low harvest levels preclude

the need for improvements in monitoring and enforcement capabilities,

where practicable. Regarding delays and burden under current

regulations, NMFS believes that the benefits of increased monitoring

and enforcement capabilities exceed those associated with the status

quo.

Comment 6: NMFS should evaluate an EFP request based on the number

of animals previously collected, not requested.

Response: NMFS believes that both the number of animals previously

requested and collected must be considered in evaluating an

application.

Comment 7: NMFS should not require the use of invasive tags which

can become infected and are unsightly.

Response: NMFS agrees that the least invasive tags are preferable.

NMFS implements the requirement that all sharks harvested under the

selected public display regulations be immediately tagged with a

Hallprint tag issued by NMFS in order to be considered an authorized

collection. The tag may be removed from the animal and kept on file

once the animal is transported to the aquarium where it will be

displayed. NMFS may consider alternative types of tags as costs and

practicalities warrant.

Comment 8: NMFS should develop species-specific public display

quotas, especially for sand tiger sharks.

Response: NMFS agrees that species-specific harvest levels are

preferable and NMFS may develop species-specific harvest levels as data

permit.

[[Page 29108]]

Comment 9: Aquarium personnel should be allowed to remove the tags

when the animal reaches its final destination and to keep the tags on

file.

Response: NMFS agrees and has modified the HMS FMP and final rule

accordingly.

Comment 10: NMFS should keep the status quo system because NMFS has

not given the EFP process, which was new in 1998, a chance to be

evaluated.

Response: NMFS disagrees. The current regulations governing EFP

issuance have been in place, and NMFS has been issuing EFPs for sharks

for the purposes of public display, since 1996. The prohibition on

possession of sand tiger sharks, a popular aquarium species, in 1997

increased the requests and issuance of EFPs for public display in 1997

and 1998. Accordingly, NMFS has had three years to evaluate the current

regulations and believes that the selected public display permitting

and reporting system is preferable because it allows for increased

monitoring and enforcement of the authorized collections.

Comment 11: NMFS should not count animals and tags for fish that

are collected under an EFP but are eventually released alive.

Response: NMFS agrees, as long as the sharks are released alive.

Comment 12: NMFS should establish a separate public display quota

for sharks exported to foreign aquariums.

Response: NMFS disagrees. Sharks harvested in Federal waters in the

Atlantic Ocean, Gulf of Mexico, and Caribbean Sea are taken from the

same stocks regardless of their ultimate destination such that NMFS

does not believe that separate quotas are warranted.

Comment 13: The proposed public display quota of 60 mt ww is

reasonable.

Response: NMFS agrees.

Anti-Finning of Sharks

Comment 1: NMFS should implement the proposed total prohibition on

finning.

Response: NMFS agrees. Extending the prohibition on finning to all

species of sharks will greatly enhance enforcement and contribute to

rebuilding or maintenance of all shark species.

Comment 2: NMFS should not extend the prohibition on finning sharks

because it disadvantages U.S. fishermen relative to foreign competitors

and NMFS should allow a tolerance for blue shark fins to be landed.

Response: NMFS disagrees. Finning of sharks within the Federal

management unit has been prohibited since the original shark FMP was

implemented in 1993 due to excessive waste associated with this

practice. NMFS extends the prohibition on finning to all sharks to

enhance enforcement and facilitate stock rebuilding and maintenance.

Sharks: Prohibited Species

Comment 1: NMFS should implement the prohibitions on possession for

all species proposed as part of the policy change from prohibiting

species that cannot withstand fishing pressure to one allowing

retention of only those species known to be able to withstand fishing

pressure.

Response: NMFS agrees.

Comment 2: NMFS should not include more species into the prohibited

species group because enforcement is a problem and it is difficult to

distinguish certain sharks from each other. Response: NMFS acknowledges

that some of the prohibited species are difficult to distinguish from

species that are allowed to be retained. Regarding problems of

enforcement, additional training and education in shark identification

as well as reducing the number of shark species authorized for

retention may facilitate enforcement. The approach taken in the HMS FMP

should encourage fishermen who have doubts about the identification of

a certain fish to release rather than retain it, thereby reducing

fishing mortality of fish that are difficult to identify.

Comment 3: The proposed additions to the prohibited species list

will increase dead discards because certain sharks are already dead

when gear is retrieved. It would be better to utilize the mortality

than discard.

Response: NMFS acknowledges that, for sharks that come to the

vessel dead, adding them to the prohibited species list will increase

regulatory discards. NMFS also acknowledges that adding such species to

the prohibited species list will prevent utilization of such mortality.

However, the benefits of preventing directed fisheries and/or markets

for species that may not be able to withstand directed fishing pressure

far outweigh the drawbacks of increasing regulatory discards,

especially since NMFS believes that the magnitude of such regulatory

discards is likely to be minor. As these species could have been

retained previously and most have not been landed in large volume to

date (except dusky sharks, see below), NMFS believes that most of these

species are either not currently marketable or are not frequently

encountered.

Comment 4: NMFS received numerous comments on the proposal to add

dusky sharks to the prohibited species management group, including

complete support of the measure as proposed, support of a commercial

prohibition with an allowance for recreational catches if there was a

high minimum size, support of more regional management since the

problems with dusky sharks seem to be mostly in the Atlantic,

opposition to the proposal because current regulations provide adequate

protection, concerns that a dusky shark prohibition will lead to data

degradation because they will be landed as sandbar sharks due to their

high market value, and concerns that a prohibition on dusky sharks for

the Gulf of Mexico will increase waste and regulatory discards because

they all come to the boat dead or because fishermen will discard all

sandbar sharks as well because they cannot be distinguished from dusky

sharks.

Response: By prohibiting possession of dusky sharks, NMFS expects

that fishermen will adjust their fishing activities accordingly.

Further, although many dusky sharks are dead when brought on board the

vessel, some are not dead and requiring their release will reduce

fishing mortality. Additionally, other measures in the HMS FMP will

reduce fishing effort and, therefore, catch. NMFS also notes that dusky

sharks have been placed on the Candidate Species List for the

Endangered Species Act due to their stock status, which further

justifies a prohibition on possession. The most effective way to reduce

fishing mortality would be to prohibit fishing for sharks. However,

NMFS believes that the measures in the HMS FMP will allow rebuilding

while limited commercial fishing for and harvest of sharks can

continue.

Comment 5: NMFS should prohibit the possession of sandbar sharks as

well as dusky sharks because these species are caught frequently in the

same areas on the same gear and because fishermen cannot tell them

apart.

Response: NMFS disagrees that such a measure, which would

essentially close directed commercial shark fisheries, is necessary to

meet conservation goals and rebuild sandbar shark stocks. NMFS believes

that the combination of final actions in the HMS FMP will rebuild

sandbar sharks while allowing limited commercial harvest of sharks to

continue.

Comment 6: NMFS should consider implementing a minimum size and

maximum size for dusky sharks to protect both juveniles and adults.

Since the largest sandbar shark is smaller than the largest dusky

shark, a maximum size limit may allow fishing on all adult sandbar

sharks while limiting fishing on

[[Page 29109]]

dusky sharks to only a portion of the population.

Response: At this time, NMFS believes that a complete prohibition

on dusky sharks is warranted due to their severe population declines

and low reproductive rate. NMFS may consider a minimum and maximum size

limit as appropriate in the future as dusky shark populations rebuild.

Comment 7: Data do not support adding dusky, bignose, and bigeye

thresher sharks to the prohibited species list; just because these

species are not landed does not mean that they are not out there.

Response: NMFS disagrees that data do not support the prohibition

on possession of dusky sharks. Catch rate data indicate large

population declines of dusky sharks since the 1970s and NMFS is

concerned that even bycatch mortality alone may negatively impact this

species' ability to rebuild to MSY levels due to its low reproductive

rate. Regarding the prohibition on possession of bignose and bigeye

thresher sharks, addition of these species to the prohibited species

list is a precautionary measure to ensure that directed fisheries and/

or markets do not develop; the measure is not based on evidence of

stock declines at this time.

Comment 8: NMFS should take longfin mako off the prohibited species

list and add them to the pelagic list.

Response: NMFS disagrees. This species is added to the prohibited

species list because it is not currently landed and including it on the

prohibited species list will ensure that directed fisheries and/or

markets do not develop until it is known that this species can

withstand specified levels of fishing mortality.

Comment 9: NMFS should not prohibit night sharks because data

indicating declines in catches are due to fishermen avoiding areas with

night sharks in order to avoid small swordfish.

Response: NMFS acknowledges that changes in fishing patterns may

affect catches and catch rate data and NMFS has listed this issue as a

research area for further investigation. NMFS disagrees that

prohibiting possession of night sharks based on existing data is

inappropriate at this time; however, NMFS may consider additional

management measures, including removing night sharks from the

prohibited species management group, as data warrant.

Comment 10: NMFS received numerous comments on the proposal to add

blue sharks to the prohibited species management group, including that

NMFS should not add blue sharks to the prohibited species management

group because the catch rate data in the HMS FMP do not warrant a

prohibition, that it is unfair and discriminatory to ban harvest of

blue sharks in the recreational fishery while the commercial fisheries

can kill 273 mt dw of blue sharks through the dead discard quota

contrary to NS 4 and section 304(g) of the Magnuson-Stevens Act, that

blue sharks are one of the last available species for recreational

fisheries as regulations on other species have become more restrictive,

that the prohibition on blue sharks would have significant economic

impacts because numerous tournaments and charter operations in the mid-

Atlantic and northeast target blue sharks, that waste is not as

prevalent as the HMS FMP indicates because some tournaments provide

blue shark meat to food banks and prisons, and that prohibiting blue

sharks will increase regulatory discards, contrary to NS 9.

Response: NMFS agrees that blue sharks should not be added to the

prohibited species management group. As stated in the draft HMS FMP,

NMFS proposed the prohibition on blue sharks to address concerns

regarding the high numbers of blue sharks discarded dead in commercial

fisheries and to create an incentive to reduce blue shark discards

(especially dead discards). NMFS proposed the prohibition on blue

sharks for both the commercial and recreational fisheries to be

equitable to all user groups. However, NMFS received substantial

comments describing the social and economic impacts of the proposal to

prohibit possession of blue sharks. In part due to these comments, the

upcoming ICCAT SCRS meeting to analyze pelagic shark catch rate data,

and the establishment of a blue shark quota against which landings and

dead discards will be counted, NMFS withdraws the proposal and does not

implement the prohibition on possession of blue sharks. By establishing

a blue shark commercial quota and reducing that quota by blue shark

dead discards as well as landings, NMFS hopes to create an incentive to

maximize the survival of blue sharks caught incidentally to other

fishing operations. NMFS will reduce the pelagic shark quota by any

overharvest of the blue shark quota to address concerns that dead

discards of blue sharks can constitute a significant portion of the

pelagic shark quota. If dead discards of blue sharks do not exceed the

selected 273 mt dw quota, the pelagic shark quota would not be

affected.

Comment 11: NMFS should maintain the commercial prohibitions on

those species of concern (like blue sharks) but should allow

recreational harvest with a high minimum size to continue because the

impacts of recreational harvest are so low.

Response: NMFS disagrees. As stated in the draft HMS FMP, NMFS

proposed the prohibition on possession of several shark species for

both the commercial and recreational fisheries to be equitable to all

user groups. While bycatch and bycatch mortality rates may warrant an

analysis of allowing retention of species by some user groups while

denying access to other user groups in the future, NMFS believes that

regulations on retention should apply to all user groups equally at

this time.

Comment 12: Environmental groups should put up some money for a

``dusky fund'' to pay for fishermen to photograph and release all the

dusky sharks they catch.

Response: This comment is not within NMFS' authority to implement.

Commercial Shark Fishery

Comment 1: NMFS should ban commercial fishing for sharks, stop all

sales of sharks caught offshore of the United States, and not allow any

shark parts (especially fins) to be exported or consumed domestically.

Response: NMFS disagrees as noted above(under Shark Fishing Gears).

Comment 2: NMFS' proposed alternatives will destroy the directed

shark fishery and do not provide for sustained participation by

directed shark fishermen and their communities, contrary to NS 8.

Response: NMFS acknowledges that the final actions will likely have

a significant economic impact on some shark fishermen, particularly LCS

fishermen. NMFS specifically chose the final actions, as a group, both

to minimize social and economic impacts to the extent practicable and

to meet the goals of the HMS FMP and the Magnuson-Stevens Act to

rebuild overfished fisheries. The final action attempts to maximize

fishing opportunities while attaining the rebuilding requirements of

the Magnuson-Stevens Act.

Comment 3: NMFS should schedule fishery openings for specified

periods and adjust the season-specific quotas the following year.

Response: NMFS agrees.

Comment 4: NMFS should count dead discards and state commercial

landings made after Federal closure against the quotas.

Response: NMFS agrees.

Comment 5: Counting dead discards and state commercial landings

after Federal closures against the quotas is

[[Page 29110]]

``double-dipping'' in that the assessments already account for dead

discards and state landings and taking them off the quotas will doubly

reduce the quotas.

Response: NMFS disagrees. Dead discards and landings in state

waters after Federal closures are included in the stock assessments

when evaluating stock status and making projections for rebuilding

based on different harvest levels. However, dead discards and landings

in state waters after Federal closures have not been included in

establishing past total harvest levels, which has likely contributed to

the need for recent harvest reductions. If NMFS does not include all

mortalities when establishing harvest levels, actual harvest levels are

set too high and total mortalities exceed levels that would allow

rebuilding.

Comment 6: NMFS should establish a secondary target species quota

for pelagic longline fisheries to allow secondary catches of LCS and

pelagic sharks on pelagic longline vessels to be landed and to reduce

waste.

Response: NMFS agrees that separate quotas or set-asides may be

appropriate for directed and/or incidental fisheries or different

gears. NMFS may consider further subdivisions of available shark quotas

once limited access is implemented and appropriate quotas or set-asides

can be determined.

Comment 7: NMFS should promote fuller utilization of catches

instead of increasing regulatory discards. NMFS should consider

eliminating all discards and requiring fishermen to land all their

catches, which would provide true data and eliminate waste.

Response: NMFS agrees that fuller utilization of catches,

consistent with conservation objectives and other applicable law, is

preferable to regulatory discards. NMFS may consider additional

management measures, including retention of all catches which are

counted against applicable quotas, in the future as appropriate.

Comment 8: Measures for commercial fisheries should not be delayed

pending development of a vessel buyback program.

Response: NMFS agrees.

Comment 9: NMFS should buy back commercial shark vessels.

Response: NMFS has the authority to administer a vessel buyback

program depending on availability of funds.

Comment 10: NMFS should move finetooth sharks from the SCS

management group to the LCS management group.

Response: NMFS disagrees that finetooth sharks should be moved from

the SCS management group to the LCS management group at this time

because finetooth sharks have not been included in the LCS stock

assessments to date. However, NMFS may consider adjustments to

management groups under the framework procedure in the future.

Comment 11: NMFS should implement quarterly quotas to distribute

shark catches more evenly.

Response: NMFS disagrees. The HMS FMP establishes several measures

to address derby fishing conditions and distribution of shark catches.

However, NMFS may consider additional measures, including quarterly

quotas, as appropriate in the future.

Comment 12: NMFS should have its assessments peer reviewed before

taking any further actions, especially since the 1997 regulations are

still the subject of legal review.

Response: NMFS disagrees. The 1998 stock assessment represents the

best available scientific information and peer review prior to

implementing these measures is not necessary.

Comment 13: NMFS should reduce quotas.

Response: NMFS agrees that commercial quota reductions are needed

to rebuild LCS. A commercial quota cap is implemented to prevent

excessive growth in SCS fisheries. NMFS believes that the actions,

including subquotas for porbeagle and blue sharks, under pelagic shark

commercial quotas will meet conservation goals at current quota levels.

Comment 14: NMFS should hold workshops for commercial shark

fishermen using rod and reel.

Response: NMFS agrees. NMFS intends to increase public education

and outreach efforts including workshops for commercial fishermen.

Comment 15: NMFS should not issue any experimental commercial shark

fishing permits because LCS are severely overfished and pelagic and SCS

are fully fished and any new gears will only increase derby conditions.

Response: The status of shark stocks will be considered in

decisions on whether to issue experimental fishing permits in

commercial fisheries.

Large Coastal Sharks

Comment 1: NMFS should establish the proposed ridgeback LCS

subgroup with the 4.5 ft (137 cm) fork length (FL) minimum size and the

non-ridgeback LCS subgroup with the reduced quota of 218 mt dw.

Response: NMFS agrees.

Comment 2: NMFS should close the directed LCS fishery and apply any

available quota for this group to the unavoidable bycatch in the

pelagic longline fisheries for other HMS. If it is concluded that these

actions would preclude rebuilding of the coastal shark stocks, then

neither recreational nor commercial harvest should be allowed until the

stocks are rebuilt.

Response: NMFS disagrees, as noted in the preceding general shark

section.

Comment 3: NMFS should deal with sharks on an emergency basis and

cut the quota in half again.

Response: NMFS is reducing the non-ridgeback LCS and SCS quotas by

66 and 80 percent by weight, respectively, in addition to other

measures (e.g., counting dead discards against the quota) that may

further reduce the LCS, pelagic, and SCS quotas, consistent with the

conservation goals.

Comment 4: The ridgeback LCS quota, in addition to the prohibitions

on possession of dusky and other sharks, may actually increase fishing

mortality on sandbar sharks; NMFS should reduce the quota on ridgeback

LCS in addition to the minimum size.

Response: NMFS is aware that the prohibitions on possession of

dusky and other sharks may increase fishing effort and mortality on

sandbar sharks. However, dusky sharks comprised 2 and 5 percent of

commercial shark landings in 1996 and 1997, respectively, and other

prohibited species comprised less than 1 percent. Therefore, NMFS does

not expect increased effort to be significant because the reductions in

landings due to the prohibition of these species are not large.

Additionally, NMFS believes that the combination of final actions will

sufficiently reduce effective fishing mortality to allow rebuilding of

sandbar and other ridgeback LCS.

Comment 5: The proposed ridgeback vs non-ridgeback separation would

skew the LCS quota toward slower-growing ridgebacks and could be

extremely detrimental to their recovery. Status quo on the LCS

management group except for overall quota levels would be better.

Response: NMFS disagrees. The final actions that establish

ridgeback and non-ridgeback LCS subgroups with separate management is

based in part on the recommendation of the 1998 SEW that ``[e]very

effort should be made to manage species separately.'' These actions do

not manage on an actual species level because NMFS believes that the

identification and enforcement problems of species-specific management

are too great at this time. However, these actions will allow for

management measures to be more tailored to those species complexes

within the larger LCS group with which

[[Page 29111]]

different fisheries interact. These actions will establish higher

harvest levels, but with a minimum size, for the ridgeback LCS than

harvest levels for the non-ridgeback LCS due to the lack of size-depth

segregation of the primary non-ridgeback LCS as well as new biological

data that indicate that blacktip sharks have a lower reproductive rate

than previously thought. For these reasons, NMFS selected a lower non-

ridgeback LCS harvest level than that for ridgeback LCS, and does not

believe that these actions will be detrimental to ridgeback LCS

rebuilding. These separate management measures will allow for more

tailored rebuilding programs than managing all 22 species of the LCS

management group as an aggregate.

Comment 6: NMFS received several comments on minimum sizes for LCS,

including support of the proposed limit, opposition to the proposed

limit, that NMFS should implement species-specific minimum sizes and

not an arbitrary 4.5 ft (137 cm) minimum size, that NMFS should

implement a 120 cm minimum size for ridgeback LCS, that NMFS should

implement a single minimum size for all LCS, and that NMFS should not

implement a minimum size on sharks unless that minimum size is applied

to all fishermen throughout the species' range.

Response: NMFS agrees that a single minimum size for ridgeback LCS

is warranted. A single minimum size of 137 cm FL for all ridgeback LCS,

based on the age at first maturity for sandbar sharks, will afford

year-round protection in Federal waters for the juvenile and subadult

sizes that are the most sensitive to fishing mortality. This minimum

size for the ridgeback LCS subgroup is selected because the sandbar

shark, the primary species in the commercial and recreational

fisheries, segregates by size and depth so that fishing effort can be

concentrated on the less sensitive adults. No minimum size is

implemented for the non-ridgeback LCS subgroup because the primary

species in this subgroup, the blacktip shark, does not segregate by

size and depth such that a minimum size may actually increase effective

fishing mortality (more small fish would be caught and discarded in

order to harvest the same quantity of larger fish). NMFS does not

believe that species-specific minimum sizes are practicable at this

time due to the lack of species-specific biological information on some

species such that the appropriate minimum size is unknown and due to

the practical problems of education and enforcement of multiple minimum

sizes. NMFS believes that establishing a minimum size for ridgeback LCS

is appropriate despite the lack of international management because

strong domestic management is critical to establishing the foundation

for international management and to compliance with domestic law.

Comment 7: Because some small ridgeback LCS will still be caught in

deeper water where they will be regulatory discards, a minimum size

will increase overall mortality rates because at least some of those

small fish will be discarded dead.

Response: NMFS is aware that some undersized ridgeback LCS will

still be caught in commercial fishing operations, which will be

regulatory discards, and that some of these fish will be discarded

dead. As stated in the HMS FMP, NMFS believes that such bycatch and

bycatch mortality will be minimized to the extent practicable due to

the size-depth segregation that sandbar and dusky sharks exhibit that

should allow fishing efforts to concentrate on the mature adults.

However, should the bycatch and bycatch mortality of undersized

ridgeback LCS be higher than anticipated (based on observer data) and

impede or jeopardize rebuilding, then NMFS may consider additional

management measures to address these issues.

Comment 8: The proposed minimum size on ridgeback LCS will increase

waste because many undersized fish come to the boat dead. This also

encourages illegal fishing activity.

Response: NMFS acknowledges that the minimum size on ridgeback LCS

may increase regulatory discards due to the inability of fishermen to

land undersized fish and may increase waste if undersized fish are

brought to the boat dead. As stated in the HMS FMP, NMFS is

implementing a minimum size for ridgeback LCS due to observer data

which indicate that sandbar sharks, the primary target species,

segregate by size and depth so that fishing effort can be concentrated

on adult sharks offshore. This size-depth segregation should minimize

the amount of undersized fish caught and discarded (both dead and

alive) such that regulatory discards and waste should also be

minimized. (Due to the lack of depth-size segregation of the primary

non-ridgeback LCS species, the blacktip shark, NMFS did not propose or

implement a minimum size for this subgroup.) NMFS may consider

additional management measures to address concerns regarding regulatory

discards and waste due to the selected minimum size on ridgeback LCS as

data warrant. Regarding illegal activity, the ridgeback LCS minimum

size should be readily enforceable which should minimize illegal

harvest.

Comment 9: The adoption of a minimum size for ridgebacks is a good

attempt to protect juveniles, but the position of forward measurement

point is too variable. The first anterior cartilaginous dorsal fin ray

(exposed when dorsal fin is removed) would be better.

Response: NMFS agrees and changes the acceptable measurement of a

dressed ridgeback LCS carcass from the first anterior cartilaginous

dorsal fin ray to the precaudal pit or terminal point of the carcass to

determine the size of ridgeback LCS.

Comment 10: NMFS should restore the 1996 quota levels and implement

minimum sizes, time/area closures, and limited access to control effort

instead.

Response: NMFS disagrees. Status quo harvest levels for LCS (which

are 50 percent lower than 1996 harvest levels) would not meet NS 1 to

prevent overfishing and rebuild overfished fisheries. NMFS does not

believe that minimum sizes, time/area closures, and limited access

would sufficiently reduce effective fishing mortality to allow LCS

rebuilding under 1996 quota levels.

Comment 11: NMFS should maintain the ridgeback LCS quota at 642 mt

dw.

Response: NMFS agrees, subject to the final actions to take dead

discards and state landings after Federal closures off Federal quotas

and as reduced by the public display and scientific research quota.

Comment 12: NMFS should not reduce the non-ridgeback LCS quota but

should leave it at 642.5 mt dw.

This text is long and has been trimmed here. Open the source document for the complete record.