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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A99-13090

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 28, 1999
- **Citation:** 64 FR 29090

## Text

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 shoul

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-13090. Public record. Not legal advice.