APPENDIX A. PROTECTED SPECIES DATA RELATED TO THE ATLANTIC PELAGIC LONGLINE FISHERY App. A-1

APPENDIX B. COMMENTS AND RESPONSES App. B-1

General App. B-1

Use of Time/Area Closures to Reduce Bycatch App. B-10

Gear Modifications App. B-18

Environmental Justice App. B-21

Protected and Endangered Species App. B-21

Dolphin/Wahoo Issue App. B-22

Redistribution of Effort App. B-24

Analysis of Ecological Benefits of Closures App. B-28

Mitigation of Economic Impacts App. B-31

Social and Economic Analyses App. B-38

APPENDIX C. METHODS USED FOR TIME/AREA ANALYSES App. C-1

Time/area Analysis with No Reallocation of Effort App. C-1

Time/area Analysis with Effort Displacement App. C-2

Areas Included in the Proposed Rule but not in the Draft Technical Memorandum App. C-4

Dolphin-Wahoo Pelagic Longline Fishery Analysis App. C-5

APPENDIX D LIVE BAIT VS. DEAD BAIT EVALUATIONS OF U.S. PELAGIC LONGLINE FISHING INCIDENTAL CATCH RATES OF BILLFISH IN THE GULF OF MEXICO.

App. D-1

APPENDIX E. COMMONLY USED FISHERIES MANAGEMENT ACRONYMS AND ABBREVIATIONS

App. E-1

Table A1. Observer's comments on takes of marine mammals by pelagic longline fishing operations.
App. A-2

Table A2. Observed takes of sea turtles in the 1995 - 1998 pelagic longline fishery by year, calendar quarter, and fishing area. Blank areas indicate no effort for that year, quarter, and area.
App. A-5

Table A3. Observed Incidental Takes of Sea Birds, By Species By Pelagic Longlines: July 1990-June 1997. App. A-7

Table C-1. Spatial boundaries for closures within the Gulf of Mexico and along the SE U.S. Atlantic coast.

App. C-6

Table C-2. Example of temporal variations in the effectiveness of closing area GulfB during 1995.
App. C-6

Table C-3. Calculation procedures for estimating dispersion of effort using 1995 blue marlin in GulfB.

App. C-7

Table C-4. Pelagic logbook reports of effort, catch and bycatch in the proposed South Atlantic closed area in 1998. App. C-8

Figure A1. Map of 1995-1997 marine mammal interactions with the Atlantic Pelagic Longline Fishery.
App. A-1

Figure A2. Takes of Sea Birds in the Atlantic Pelagic Longline Fishery: 1997-1998. App. A-6

Figure C1. Percentage in total bycatch by species and month during 1996 from closures in the Gulf of Mexico. App. C-9

Figure C2. Area SAtl E (gray line) and its analytical proxy (black line). App. C-9

Figure C3. DeSoto Canyon area in the northeastern Gulf of Mexico. App. C-10

1. Gulf of Mexico logbook reports estimated by area bounded by GulfD (Table C-1).

APPENDIX A. PROTECTED SPECIES DATA RELATED TO THE ATLANTIC PELAGIC LONGLINE FISHERY

The following tables identify the quantity, location, and nature of interactions of protected species with pelagic longlines in the Atlantic Ocean, Gulf of Mexico, and the Caribbean Sea.

Figure A1. Map of 1995-1997 marine mammal interactions with the Atlantic Pelagic Longline Fishery. Source: Observer data.

Table A1. Observer's comments on takes of marine mammals by pelagic longline fishing operations. Source: Observer data.

Table A2. Observed takes of sea turtles in the 1995 - 1998 pelagic longline fishery by year, calendar quarter, and fishing area. Blank areas indicate no effort for that year, quarter, and area. Source: Observer data. Note: Areas indicate statistical sampling areas for pelagic logbook data.

Figure A2. Takes of Sea Birds in the Atlantic Pelagic Longline Fishery: 1997-1998. Source: Observer Data. Note: Symbols represent the number of birds caught in that area with the frequency of that category in parentheses.

Table A3. Observed Incidental Takes of Sea Birds, By Species By Pelagic Longlines: July 1990-June 1997. Note: A-alive, D-dead; observer coverage: 1992-2.1%, 1993-5.3%, 1994-4.6%

APPENDIX B. COMMENTS AND RESPONSES

NMFS received several hundred comments and several thousand form letters during the two comment periods, 13 public hearings, and two joint AP meetings held during this rulemaking. Comments are summarized here together with NMFS' responses. NMFS would like to thank all the people who took the time to comment. NMFS would also like to emphasize that comments are not a "vote."

General

Comment 1: There is no conservation benefit from proposed closures except for small swordfish, therefore the proposed time/area closures will probably have an imperceptible effect on rebuilding of overfished HMS.

Response: NMFS disagrees. Depending on the amount of redistribution of effort under the proposed closed areas, other species such as sailfish and large coastal sharks may benefit from these closures. Under the no effort redistribution model, billfish discards are reduced by 19 to 43 percent, although as discussed in the FSEIS, the actual benefits of these time/area closures is likely somewhere between the extremes predicted by the effort models. Further, prohibiting the use of live bait will provide a 10 to 46 percent reduction in billfish discards in the Gulf of Mexico. NMFS is compelled by the Magnuson-Stevens Act to reduce bycatch (NS9) as outlined in the HMS FMP and Billfish FMP Amendment. Although it was not a stated objective of the final rule to rebuild overfished stocks through time/area closures or gear modifications, some benefit to rebuilding may be experienced to the degree that mortality rates will be reduced for juveniles, pre-adults and reproductive fish. Also, to the extent that the United States can use the domestic bycatch reduction program, including time/area closures and gear modifications, to convince other International Commission for the Conservation of Atlantic Tunas (ICCAT) member nations that bycatch could be minimized, these actions may have a significant impact on Atlantic-wide rebuilding of overfished HMS stocks.

Comment 2: NMFS is already past the deadline for a rebuilding program for overfished HMS that includes bycatch reduction measures.

Response: NMFS disagrees. The HMS FMP and Billfish FMP Amendment include rebuilding plans that meet Magnuson-Stevens guidelines. The swordfish rebuilding program recently adopted by ICCAT was based in large part on the rebuilding plan outlined in the HMS FMP. Similarly, the rebuilding plans for blue and white marlin emphasize the importance of international efforts to reduce bycatch and bycatch mortality. NMFS implemented bycatch reduction measures in the HMS FMP, including: limited access for swordfish and shark fisheries; time/area closure for pelagic longline gear to reduce bluefin tuna dead discards; limiting the length of mainline for longline fishermen; and other measures summarized in the HMS FMP. The Billfish FMP Amendment also outlined a bycatch reduction strategy. NMFS expects that a suite of additional measures will continue to be implemented for all HMS fisheries, including educational workshops that share results of recent research on gear modifications. Finally, as a result of the jeopardy finding in the early June draft BO, NMFS will initiate implementation of the measures in the final BO via rulemaking and other measures.

Comment 3: NMFS should extend the VMS implementation deadline past June 1, 2000.

Response: NMFS agrees. On April 19, 2000 (65 FR 20918), NMFS extended the effective date until September 1, 2000. This will provide adequate time (2 months) to ensure that all systems are fully functional prior to the implementation of the time/area closures. Also, implementation of the measures in the early June draft BO may require a time/area closure and/or gear setting restrictions to be enforced by VMS.

Comment 4: As the swordfish stocks continue to rebuild, the United States may need more U.S. boats to harvest the swordfish quota.

Response: NMFS disagrees. As a result of the final regulations implementing the HMS FMP (May 28, 1999; 64 FR 29090), NMFS implemented a limited access program for Atlantic swordfish, Atlantic shark, and the pelagic longline sector of the Atlantic tuna fisheries. A description of the qualifying requirements for a directed or incidental limited access permit is contained in Chapter 4 of the HMS FMP. Using a multi-tiered process based on participation, approximately 450 limited access swordfish permits (directed and incidental) were awarded. Subsequent examination of fishing activity by these vessels in preparation of the proposed and final rule indicates that a significant portion did not report any HMS landings in either 1997 (331 vessels reported HMS landings) or 1998 (208 vessels reported HMS landings). When MSY levels are attained (currently the North Atlantic swordfish stock is estimated to be at 65 percent of MSY), it is likely that the number of U.S.-flagged vessels with directed or incidental swordfish permits will be sufficient to adequately handle any potential increase in the U.S. swordfish quota.

Comment 5: NMFS should be concerned about small sources of mortality which may exacerbate overfishing and slow rebuilding.

Response: NMFS agrees and is concerned about all sources of mortality on HMS stocks. NMFS is committed to work through available international fora to rebuild overfished HMS stocks, even when U.S. fishing is responsible for only a small source of the total Atlantic-wide mortality. The rebuilding plans provided in Billfish FMP Amendment are indicative of this commitment. Further, the agency is required by the Magnuson-Stevens Act to take appropriate conservation actions, while considering the social and economic impacts on fishermen and fishing communities, and as such must consider management actions that meet the national standard guidelines.

Comment 6: NMFS should increase outreach efforts to inform the public of the need for management of HMS resources.

Response: NMFS agrees but is currently restricted from increasing outreach efforts by competing demands for funding (e.g., funds for observers, science). Note that the NMFS Highly Migratory Species Management Division posts current events and useful documents on the website www.nmfs.gov/sfa/hmspg.html. NMFS also produces informational brochures on current fishing regulations, mailouts, and utilizes a fax network for distribution of information. NMFS scientists are also participating in periodic outreach programs to share information on life history of billfish, sharks and tunas, as well as sharing information on methods that will enhance survival of released fish. An information hotline has also been established that summarizes current fisheries regulations as they apply to HMS. The hotline can be accessed by calling toll-free at 1-800-894-5528. Additional outreach efforts will be implemented as funding becomes available.

Comment 7: The proposed closed areas will result in an increase in swordfish imports into the United States; this would deny U.S. seafood consumers access to fresh and HACCP-quality controlled fish.

Response: NMFS did not propose to reduce the swordfish quota in this fishery in this rulemaking, nor does NMFS anticipate that the U.S. fleet will be unable to meet its quota as a result of the implementation of this final rule. Therefore, it is unlikely that imports will increase as a result of closed areas, although imports may increase for other unrelated reasons. NMFS does not control the swordfish market other than to prohibit the import of undersized Atlantic swordfish in this country, which is monitored through the Certificate of Eligibility program. It is expected that the high-quality, HACCP-inspected seafood products provided to citizens of the United States by U.S. commercial fishermen will remain available following implementation of this final rule. Imports of fishery products into the United States are also subject to HACCP guidelines.

Comment 8: The proposed closed areas are not equitable between constituents in different states.

Response: As required by NS2 of the Magnuson-Stevens Act, NMFS utilized the best available scientific information to develop proposed and final action. NMFS used logbooks, observer programs, and various scientific studies to identify distributional patterns of seasonal abundance, by species, and areas of overlap between various HMS species, protected and endangered species as defined by concentrations of bycatch and incidental catch ("hot spots") from pelagic longline gear in the U.S. EEZ. Therefore, in large part, the biology of the species dictated the locations of the closures. The issue of equity was considered, as required by NS4, as were the other national standards, as well as international obligations, in the selection of the final actions. While the final areas may have larger impacts on fishermen who fish in those areas, such impacts are not inconsistent with NS4.

Comment 9: NMFS is ignoring sea bird bycatch by the recreational fishermen who troll for HMS.

Response: NMFS disagrees that it is ignoring sea bird bycatch. NMFS does not currently have any data indicating that sea birds are caught and discarded in the recreational fishery for HMS. NMFS is currently implementing a logbook and voluntary observer program for charter/headboats involved with HMS fisheries. This program will provide additional information on recreational fishing including any possible interactions with seabirds or other protected or endangered species. Further, NMFS is committed to a National Plan of Action for the Reduction of Incidental Catch of Seabirds in Longline Fisheries (see www.nmfs.gov for a draft of this plan). NMFS would therefore be concerned if these animals are discarded and unreported in other HMS fisheries.

Comment 10: NMFS should quantify bycatch and bycatch mortality in the recreational fishery.

Response: NMFS agrees that quantifying bycatch and bycatch mortality in recreational fisheries is important, and has collected data used to quantify bycatch of large pelagics in the recreational fishery. Such data are reported in the U.S. National Report prepared each year by NMFS for submission to ICCAT. Billfish FMP Amendment established a catch-and-release fishery management program for the recreational Atlantic billfish fishery; therefore all billfish released alive, regardless of size, by recreational anglers are not considered as bycatch. However, the mortality associated with the capture and release event is an important component to quantify for population assessment. NMFS currently collects data on the number of billfish retained and released at selected tournaments. NMFS has funded studies to quantify the bycatch mortality in bluefin tuna and billfish recreational fisheries HMS fisheries, and NMFS scientists have recently reported on the use of circle hooks to reduce release mortality for the recreational billfish fishery. NMFS encourages fishermen to release HMS in a manner that maximizes their survival.

Comment 11: NMFS should re-establish the Second Harvest Program for swordfish whereby undersized swordfish are fed to the hungry instead of being discarded as bycatch.

Response: The specific regulations for the second harvest program for swordfish were eliminated when the HMS regulations were consolidated following the final HMS FMP and Billfish FMP Amendment (May 29, 1999; 64 FR 29090). No volunteers were received for this program, although the constraints of the observer requirement, and subsequent establishment of a minimum swordfish size with no tolerance limits probably limited the success of this program. However, under the current regulations, a fishermen could apply for an Exempted Fishing Permit (EFP) to donate regulatory discards, including fish below the minimum size, or fish in excess of the bycatch limits in effect for the particular vessel (e.g., 2 per trip for an incidental permit vessel, or 15 per trip for a directed permit vessel during a closure of the directed fishery, or any fish by any vessel if the incidental fishery is also closed).

Comment 12: NMFS regulations force pelagic longline fishermen to discard swordfish, thus increasing bycatch in this fishery. NMFS should have a higher minimum size with a tolerance for undersized fish to reduce bycatch.

Response: Swordfish caught below the minimum size are regulatory discards, and as such are considered bycatch. The minium size limit was established to create an incentive for fishermen to avoid areas of undersized swordfish. NMFS discontinued the use of a higher minimum size with a set percent tolerance for smaller fish because of concerns about the difficulty in enforcing such a measure. Industry participants largely supported this decrease in minimum size, stating that most of the fish landed under the tolerance provisions were just under the previous minimum size. In the Spring of 1999, the ICCAT Advisory Committee recommended that NMFS evaluate the efficacy of the swordfish minimum size limit and reconsider eliminating that size limit if warranted. Under the 1999 ICCAT recommendation, total North Atlantic discards of undersized swordfish are subject to an allowance of 400 mt Atlantic-wide for the 2000 fishing season; the U.S. receives 80 percent of this dead discard allowance (320 mt). The United States is obligated by international agreement to address swordfish discards. The time/area closures defined in the final rule will significantly reduce swordfish discards by U.S. pelagic longline vessels. Although some small swordfish will still be encountered under time/area management, the overall proportion of the catch that is discarded will be reduced, and in fact may provide an opportunity to consider alternatives to minimum sizes in the international management of Atlantic swordfish.

Comment 13. The proposed closed areas are expected to increase the catch of mako, thresher, and blue sharks. The pelagic shark stocks will not be able to withstand the possible increase in pelagic shark mortality (landings and discards) associated with pelagic longline effort redistribution.

Response: Although the status of pelagic shark stocks are currently designated as unknown, NMFS disagrees that the final rule will have a significant impact on pelagic shark mortality. However, this does not mean that NMFS is not concerned about the status of these stocks. In fact, the HMS FMP established a blue shark quota, including dead discards from pelagic longline gear, that effectively sets an upper limit to the magnitude of impacts from displaced effort. The proposed rule predicted over an 8 percent increase in pelagic shark landings over the 1995 through 1998 levels; however, changes in the temporal and spatial components of the final actions predict a 4 percent increase under the effort redistribution model, which may overestimate impacts on bycatch and target catch. Discard rates are similarly reduced in the final action. NMFS will closely monitor all pelagic shark landings through logbook and observer programs to follow changes in landing patterns resulting from effort redistribution.

Comment 14: The proposed time/area closures will reduce gear conflicts between the growing recreational HMS fisheries and commercial fishing communities, but in some areas, particularly the eastern Gulf of Mexico and Mid-Atlantic Bight, conflicts could potentially increase.

Response: NMFS previously identified gear conflicts between recreational and commercial entities in the 1988 Atlantic Billfish FMP and in the 1999 Amendment to that FMP. NMFS agrees that conflicts between recreational and commercial fishing groups could escalate in areas that remain open as a result of pelagic longline effort redistribution. Mitigating possible user conflicts was one of several reasons that temporal and spatial components of the proposed action were refined in the final action, and in the case of the western Gulf of Mexico, replaced by a live bait prohibition. Any management measure leading to a reduction in bycatch of billfish from commercial fishing gear may lead to localized increases in angler success and resultant economic benefits to associated U.S. recreational industries.

Comment 15: NMFS should consider implementing Individual Transferable Quotas (ITQs) in the future as a bycatch reduction measure, particularly for bluefin tuna in the longline fishery.

Response: Implementation of an ITQ scheme, with the sole or even partial purpose of reducing discards could be considered and would require extensive detailed analysis before proceeding. However, NMFS is constrained from consideration of ITQ systems at this time, as directed by the Magnuson-Stevens Act. The HMS FMP specifically addressed the bycatch of bluefin tuna by the pelagic longline fishery through implementation of a time/area closure during June off the Mid-Atlantic Bight. Initial results of the efficacy of the first closure (June 1999) are preliminary. NMFS is currently reviewing whether the results are due to a limited time frame for outreach (the final rule was published on May 28, 1999, with an effective date of May 24, 1999, for the interim measures of Section 635.25, including the June bluefin tuna pelagic longline closure), enforcement (VMS implementation was delayed until September 1, 2000), or due to expected inter-annual variation in effectiveness.

Comment 16: Large closed areas will pose significant enforcement challenges to U.S. Coast Guard (USCG) since the areas identified for closure in the proposed rule are not routinely patrolled by cutters. (This comment received from the USCG was followed up by a comment that supports the use of VMS to enforce closed areas.)

Response: NMFS recognizes the need for effective enforcement of these closed areas and as such supports the use of VMS which will become effective for all pelagic longline vessels on September 1, 2000 (April 19, 2000; 65 FR 20918). USCG resources will continue to be utilized as that agency is capable of confirming a vessel's location and whether or not it is fishing in the closed area. NMFS has entered into a cooperative agreement with the USCG to assist in the monitoring of fishing vessels at USCG locations.

Comment 17: NMFS should define the closed area by latitude and longitude in the regulatory text, including the designation for the U.S. EEZ.

Response: NMFS agrees and provides latitude and longitude coordinates for all boundaries to the closed areas in the regulatory text of this final rule.

Comment 18: NMFS should take these proposed closed areas to ICCAT and encourage international closed areas.

Response: NMFS supports consideration of closed areas and gear modifications to reduce undersized swordfish catch and fishing mortality, and to protect spawning and/or nursery areas for swordfish and billfish on an Atlantic-wide basis as discussed in the HMS FMP and Billfish FMP Amendment. In 1999, ICCAT adopted a U.S.-sponsored resolution for the development of possible international time/area closures (and gear modifications) and the Standing Committee for Research and Statistics (SCRS) is scheduled to provide a report on this topic at the ICCAT meeting in 2002. The final rule will be included in the U.S. National Report that will be submitted to ICCAT in the October 2000.

Comment 19: NMFS should ban pelagic longline gear, or at least ban use of this gear inside the U.S. EEZ.

Response: NMFS disagrees. Banning pelagic longline gear in the U.S. EEZ is not necessary to protect highly migratory species. Bycatch can be addressed through time/area closures, education, and/or gear modifications as implemented in this final rule. Requiring all vessels using pelagic longline gear to fish only outside the 200 mile limit may also be inconsistent with consideration of safety issues as required under NS10.

Comment 20: Closures are not necessary; swordfish are rebuilding.

Response: NMFS agrees that the North Atlantic swordfish stock may have stabilized and that an international rebuilding program is in place. To the extent that the time/area closures will reduce bycatch and bycatch mortality of undersized swordfish, pre-adults and spawning fish, the closures will enhance stock rebuilding. Furthermore, NMFS is required by an ICCAT recommendation and under NS9 of the Magnuson-Stevens Act to minimize bycatch, to the extent practicable. Providing protection of small swordfish and reproducing fish though time/area closures is particularly critical as stocks begin to rebuild. The United States is responsible for 29 percent of the north Atlantic swordfish quota (1997 through 1999), and approximately 80 percent of the reported dead discards. Under the 1999 ICCAT recommendation, the total North Atlantic dead discard allowance for the 2000 fishing season is 400 mt; the U.S. receives 80 percent of the North Atlantic dead discard allowance (320 mt). The dead discard allowance for the United States is reduced to 240 mt in 2001, 160 mt in 2002, and will be reduced to zero by 2004, with any overage of the discard allowance coming off the following year's quota for that country. A total of 443 mt of swordfish were reported discarded by U.S. fishermen in the North Atlantic during 1998. Under the time/area strategy of the final rule, the no effort redistribution model predicts a 41.5 percent reduction in discards; under the effort redistribution model, discards are reduced by 31.4 percent. The closures could potentially reduce 1998 discard levels to 259 mt under the no effort redistribution model and 304 mt under the effort redistribution model, thereby meeting at least 2000 discard allocation levels without impacting the subsequent year's quota.

Comment 21: NMFS should increase observer coverage of all components of HMS fisheries, including pelagic longline fishery.

Response: NMFS agrees that it would be beneficial to increase observer coverage to document bycatch in all HMS fishing sectors. Observer coverage of the pelagic longline averaged between 4 and 5 percent between 1992 through 1998; a total of 2.9 percent of pelagic longline sets were covered by observers during 1998. However, given current fiscal constraints, NMFS is not able to increase observer coverage in the pelagic longline fishery. NMFS will be implementing an initial phase of the HMS charter/headboat and voluntary observer program in the summer of 2000 that will provide additional bycatch information from recreational fisheries.

Comment 22: NMFS should develop a comprehensive bycatch strategy, including specific targets for bycatch reduction.

Response: NMFS disagrees that setting fixed bycatch targets is necessary, and in fact such targets may be counterproductive. The multi-species approach followed in the development of the proposed and final action to reduce bycatch, bycatch mortality, and incidental catch precludes setting target reduction for specific species without considering the impact on the remaining portion of the catch composition. For example, if the time/area closures were simply based on reducing swordfish discards by a set percentage, a concomitant increase in bycatch of other species could occur, or target catches could be reduced more than necessary to achieve NS9 mandates. NMFS agrees that a comprehensive bycatch strategy is necessary, and has outlined a plan that incorporates data collection, analysis and measures that minimize bycatch, to the extent practicable. This strategy is outlined in the HMS FMP and Billfish FMP Amendment.

Comment 23: NMFS should conduct educational workshops.

Response: NMFS supports the use of educational workshops to disseminate information on current research regarding bycatch reduction and to provide a forum through which fishermen can share bycatch reduction techniques with each other. Depending upon available funding and staff, NMFS will initiate educational workshops to highlight bycatch reduction in HMS fisheries, both for recreational and commercial fishermen. NMFS scientists periodically hold seminars for fishermen to discuss the benefits of circle hooks and other handling techniques in the recreational billfish fishery.

Comment 24: NMFS needs to be able to respond quickly to results of monitoring and evaluation of closed areas. NMFS should develop a framework process for adjusting closed areas, if necessary, in a timely manner.

Response: NMFS agrees that a quick response to shifting fishing effort patterns is necessary. NMFS is currently able to adjust or develop new closed areas through the framework process (proposed and final rules, including public comment period) without amending the HMS FMP in the event that closed areas need to be altered to maximize the benefits to the nation. However, it will take time to collect and analyze the appropriate information, including data from the mandatory logbooks, observer program, and VMS.

Comment 25: NMFS should reduce effort in the longline fishery, not just reduce bycatch.

Response: NMFS disagrees. The intent of this rulemaking is not to reduce effort in the fishery, but to reduce bycatch while minimizing the reduction of target catch by shifting effort away from areas with high bycatch and incidental catch. NMFS agrees that under a quota system, a time/area closure scheme will not necessarily reduce effort, although some vessel operators may choose to discontinue fishing due to economic or social factors. The use of time/area closures and gear restrictions (prohibition of live bait) was deemed by NMFS to be the best available management tool to reduce current levels of bycatch by the pelagic longline fishery, as required by NS9.

Comment 26: NMFS should consider additional actions to address the impact of the increase in sea turtle interactions resulting from pelagic longline effort redistribution.

Response: NMFS agrees that sea turtle interactions with pelagic longline gear must be minimized to the extent practicable. On November 19, 1999, NMFS reinitiated consultation with NMFS' Office of Protected Resources based on preliminary information on the 1999 take levels by the pelagic longline fishery. In early June 2000, a draft BO concluded that the continuation of the pelagic longline fishery could jeopardize the continued existence of loggerhead sea turtles. Pending further analyses, the final BO, expected in late June 2000, could also have a jeopardy finding for leatherback sea turtles. The final time/area closures along the southeastern U.S. Atlantic coast were temporally and spatially reconfigured to mitigate, to the extent practicable, the impact of effort redistribution on sea turtle interactions. Bycatch rates, particularly for sea turtles, may be over-estimated by the effort redistribution model because the model estimated bycatch rates by assuming random or constant catch-per-unit-effort in all remaining open areas. This estimation procedure could skew results for certain species if those species are concentrated in certain areas (such as sea turtles in the Grand Banks), instead of being randomly distributed over the entire open area. Fishing activities will be monitored using VMS, as well as through logbooks and on-board observers to determine impacts of actual effort redistribution, which may require further agency action to address changes in turtle interactions. NMFS is initiating efforts to address concerns raised in the draft BO, including possible regulatory and non-regulatory actions.

Comment 27: NMFS is proceeding with use of time/area management strategies only because of litigation filed against NMFS by various environmental groups following publication of the final rules implementing the HMS FMP.

Response: NMFS disagrees. During public hearings held during the Fall of 1998 as part of the scoping process used to develop management alternatives for the draft HMS FMP and Billfish FMP Amendment, NMFS received many comments regarding the utility of time/area closures to reduce bycatch in various HMS fisheries, including pelagic longline gear, and their use in protecting essential fish habitat (e.g., spawning and nursery grounds). The draft HMS FMP included a closure of a portion of the Florida Straits to reduce swordfish discards. Comments on the proposed action indicated that the area was spatially and temporally too limited to accomplish any significant reduction in bycatch and the area was not included as part of the final actions. However, the HMS FMP was very clear in stating that following publication of a final rule (May 28, 1999; 64 FR 29090) an evaluation of wide-ranging time/area closures would be completed and implemented, if warranted. NMFS honored that commitment through the preparation of the Draft Technical Memorandum, and the proposed and final rules, establishing both time/area and gear modifications to reduce bycatch by the U.S. Atlantic HMS pelagic longline fishery.

Comment 28: The comment period for the DeSoto Canyon area closure alternative is too short. Additional time must be provided to allow those in the affected area to adequately respond to this potentially devastating closure.

Response: NMFS disagrees that additional time was warranted for public comment on the DeSoto Canyon closure alternative. During the public hearing period for the proposed rule (December 15, 1999 to March 1, 2000), NMFS received many comments indicating that an additional closure was needed in the northeastern Gulf of Mexico because of the historically high swordfish discard rate in the area. In response to this comment, NMFS conducted additional analysis and identified an area generally around the DeSoto Canyon that in fact did have high incidence of discards of swordfish relative to swordfish kept. Although the DeSoto Canyon is included within areas analyzed in the DSEIS and draft Technical Memorandum (available November 1999), NMFS decided that an additional comment period was needed specifically on the potential utility of this closure because pelagic longline effort has declined by greater than 50 percent in this area over the past five years. NMFS notified the public of its intentions to consider a sub-area of previously analyzed areas in the Gulf of Mexico (i.e., DeSoto Canyon) through the HMS fax network, which is sent to thousands of permit holders, seafood dealers and fish houses throughout the eastern United States. In addition, NMFS mailed the Federal Register notice, supplementary information summarizing the biological, economic and social analysis of the DeSoto Canyon closure, and VMS materials to all HMS pelagic longline permitees. As a result of the April 26, 2000, Federal Register notice (65 FR 24440) soliciting comment on this alternative, NMFS has received many hundreds of responses, indicating that adequate time has been provided for comment.

Comment 29: Fish farming is the only answer to providing fish as a food for our population.

Response: NMFS agrees that aquaculture and mariculture play an important role in providing fishery products, but NMFS disagrees that this is the only mechanism to provide seafood.

Use of Time/Area Closures to Reduce Bycatch

Comment 1: NMFS should use time/area closures to reduce bycatch.

Response: NMFS agrees that closed areas can be an effective way to reduce bycatch, both in the U.S. and international pelagic longline fisheries, and this final rule implements time/area closures for the pelagic longline fisheries in the Gulf of Mexico and along the southeastern U.S. Atlantic coast. ICCAT has asked its scientific committee to explore the use of closed areas throughout the management unit. Swordfish, marlin, sailfish, and other HMS are considered overfished and are currently experiencing overfishing Atlantic-wide. The rebuilding plans established in the HMS FMP and Billfish FMP Amendment will be enhanced to the extent that reduction of bycatch will decrease mortality of juveniles and reproductive fish. Further, a reduction in swordfish discards is now critical for the U.S. pelagic longline fishery as a result of the 1999 ICCAT recommendation setting an North Atlantic discard allowance that is incrementally reduced to a zero tolerance level by 2004.

Comment 2: NMFS should change the size and/or shape of the proposed western Gulf of Mexico closed area.

Response: NMFS agrees and is closing the DeSoto Canyon area year-round to pelagic longline fishing (see map) to address undersized swordfish discards, and to prevent further increases in swordfish discards as a result of possible effort displacement to this area as a result of the southeastern U.S. Atlantic coastal closures. Further, NMFS is minimizing the economic effects of the proposed western Gulf of Mexico closure that was specifically established to reduce billfish bycatch, by eliminating the western Gulf closure and instead prohibiting use of live bait by pelagic longline vessels. Application of this gear modification is as effective in reducing sailfish discards as the western Gulf closure, and is approximately half as effective in reducing marlin discards. However, in consideration of the magnitude of U.S. billfish discards relative to Atlantic-wide levels and the extent of the economic impacts associated with the proposed western Gulf closure, modifying fishing practices is a viable alternative that effectively accomplishes the objectives of the agency actions by reducing billfish bycatch, to the extent practicable, while allowing fishing to continue in the western Gulf of Mexico.

Comment 3: NMFS should close the Charleston Bump area. Conversely, the level of fishing activity in the Charleston Bump area does not warrant closure of this area.

Response: Although pelagic longline activity in the Charleston Bump area results in bycatch of small swordfish throughout the year, over 70 percent of the swordfish bycatch takes place during February through April. Therefore, NMFS is closing the Charleston Bump area for this 3-month time frame of highest discard rates. This partial year closure addresses the bulk of swordfish discards while minimizing social and economic impacts of the rule by allowing fishing for nine months, rather than the year-round closure included in the proposed agency action. Minimizing the temporal component of the Charleston Bump closure also reduces the magnitude of potential increase of sea turtles interactions and white marlin discards predicted by the displaced effort model for the proposed rule. Nevertheless, NMFS is aware of the overall concerns regarding this area relative to potential increases in effort and concomitant effects on bycatch and incidental catch, and will monitor fishing activity to determine whether a larger/longer closure is necessary in the Charleston Bump area. NMFS would pursue this action through the FMP framework process.

Comment 4: NMFS should consider additional pelagic longline closed areas in a future rulemaking.

Response: NMFS agrees that additional closed areas may be necessary to address bycatch, bycatch mortality, and incidental catch, particularly to address sea turtle takes as discussed in Section 5.8 of the FSEIS. Shifts in fishing effort patterns may also warrant future rulemaking to close affected areas. NMFS will continue to monitor the pelagic longline fleet throughout its range.

Comment 5: NMFS should change the shape, size, and/or timing of the South Atlantic proposed closed area.

Response: NMFS agrees. NMFS is closing the southern part of the proposed Southeast area below 31^o N latitude (East Florida Coast) year-round in order to maximize the bycatch reduction benefits. The northern portion of the proposed closed area (Charleston Bump) is closed for the period of highest swordfish discards during February through April. NMFS may consider a larger closure in the Charleston Bump area if effort increases significantly in this area, resulting in increased incidental catches or discards of overfished HMS or protected species. NMFS would pursue this action through the FMP framework process.

Comment 6: NMFS should include a closure of the Mid-Atlantic Bight and/or a Northeast area to pelagic longline gear.

Response: NMFS disagrees that this current final rule should include closures in the mid-Atlantic Bight or northeast area. The areas closed in this final rule are considered temporal and spatial "hot spots" for HMS bycatch from U.S. pelagic longline effort within the U.S. EEZ as evaluated by frequency occurrence, and the relationship between total catch and discard rates. NMFS has included a closure in the mid-Atlantic Bight as part of the final HMS FMP to reduce bluefin tuna discards from pelagic longline gear. Nevertheless, NMFS recognizes that effort will likely increase in areas that remain open (as analyzed in the redistribution of effort model in FSEIS). By minimizing the size of the closure in the Gulf of Mexico and shortening the closed season for the Charleston Bump area, NMFS expects that the effects of effort redistribution would be lessened from those predicted in the proposed rule. In addition, NMFS will continue to consider measures to reduce interactions with sea turtles, particularly in the pelagic longline fishing grounds in the Grand Banks. NMFS does not feel that additional closures of the Mid-Atlantic Bight, beyond the June pelagic longline closure for bluefin tuna discards, or in the offshore waters in the Atlantic Ocean off the northeastern United States are warranted at this time. NMFS will continue to monitor the pelagic longline fleet throughout its range, and will take appropriate action if necessary through the proposed and final rule process to reconfigure closures. As a result of reinitiating a Section 7 consultation, a draft BO was received indicating that the continued operation of the Atlantic longline fishery is likely to jeopardize the continued existence of loggerhead sea turtles. Pending further analyses, the final BO may include a jeopardy finding for leatherback sea turtles. Although the final BO will not be completed until late June 2000, the reasonable and prudent alternatives suggested in the draft BO indicate that additional regulations may include further modifications to fishing methods, gear modifications, closed or limited fishing areas, and expanded monitoring (see Section 5.8 of the FSEIS).

Comment 7: NMFS should close areas to both commercial and recreational pelagic fishing. NMFS should consider closing areas to recreational rod and reel fishermen, particularly to protect small bluefin tuna.

Response: NMFS disagrees. The closures included in the final rule address the requirements of NS9, while minimizing, to the extent practicable, the significant economic impacts that will be experienced by this fishery, as required by NS8. Monitoring programs in place do not identify the recreational fishery as a source of excessive bycatch. In fact, NMFS established a catch-and-release fishery management program in Billfish FMP Amendment in recognition of the operational patterns of the recreational fishery to encourage further catch and release of Atlantic billfish. However, NMFS continues to address both monitoring of the recreational fishery and any bycatch mortality that does occur. At this time, NMFS encourages recreational fishermen to increase survival of released fish through the use of dehooking devices, circle hooks, and other gear modifications that may reduce stress on the hooked fish. Further, depending upon available funding, NMFS will offer educational workshops in order to reduce bycatch in the recreational fishery.

Comment 8: NMFS should consider rolling closures to spread the impacts throughout the region.

Response: NMFS disagrees. NMFS received advice from the HMS and Billfish APs that rolling closures may not be effective and they complicate the management process. NMFS conducted analyses to consider closures with varying spatial limitations on a seasonal basis along the southeastern U.S. Atlantic coast; however, none were as effective as the final action (see Section 7 of the FSEIS). Economic impacts of the closures were minimized, to the extent practicable, in light of the objectives of the conservation measures.

Comment 9: NMFS should use oceanographic conditions to define the size, shape and timing of time/area closures.

Response: NMFS agrees that many life history characteristics of HMS are driven by oceanographic conditions, including the strength of the Gulf Stream and the loop current and the eddies that spin off these structures. By following long-term distributional patterns in establishing the temporal and spatial components of the closures, oceanographic conditions were indirectly utilized in defining and evaluating the effectiveness of the time/area closures. The sizes of the closures around the Charleston Bump and DeSoto Canyon are examples of how NMFS accounted for variations in the current patterns to establish closure boundaries.

Comment 10: NMFS should alter the closed areas to be consistent with Congressional proposals.

Response: NMFS disagrees. The objectives of the legislative proposals are different than those of this action. This final rule reflects the four objectives stated in the proposed rule: 1) maximize the reduction of finfish bycatch; 2) minimize the reduction in target catch of swordfish and other species; 3) consider impacts on the incidental catch of other species to minimize or reduce incidental catch levels; and 4) optimize survival of bycatch and incidental catch species. NMFS has reviewed the various proposed legislative actions and provided (in testimony before Congress) an analysis of the relative effectiveness of the closures following the methods outlined in the FSEIS. In addition to bycatch reduction, the legislative actions also consider gear interactions and economic mitigation through a buyout program, which is beyond the scope of this rulemaking.

Comment 11. The closures proposed by NMFS ignore an historically high area of swordfish discards and nursery grounds in the DeSoto Canyon in the northeastern Gulf of Mexico.

Response: NMFS agrees and is closing an area in the northeastern Gulf of Mexico that includes the DeSoto Canyon. NMFS had evaluated the closure of a larger area in the Gulf of Mexico that included the DeSoto Canyon in the draft Technical Memorandum (area BillD). However, the primary objective for closures in the Gulf of Mexico in the proposed rule was to reduce differentially high billfish discards in the western Gulf of Mexico. In responding to comments on the use of live bait, NMFS noted in the FSEIS (see Section 7.2) that the higher discards in the western Gulf were a likely result of fishing practices rather than an actual reflection of relatively higher abundance. Historically, catches of small swordfish were high in the DeSoto Canyon area; however there has been considerably less effort this area in recent years, which is likely a reflection of the enforcement of stricter minimum size limits. Further rationale for the northeastern Gulf of Mexico closure is to prevent additional effort in this area by pelagic longline fishermen displaced from the southeastern U.S. Atlantic coast closures, which would negate the effectiveness of final rule closures.

Comment 12: NMFS should reconsider the proposed closed areas because the increase in the bycatch of blue marlin, white marlin and large coastal sharks is not "worth" the decrease in swordfish bycatch expected to result from the proposed closed areas.

Response: The effort redistribution model used in the DSEIS and FSEIS is based on the assumption that all effort in the closed areas is randomly distributed throughout the remaining open areas, and as such, offers an estimation of the "worst-case scenario" from a biological perspective. This model estimates that discards of blue marlin could increase by 6.6 percent, and white marlin by 10.8 percent. Blue marlin bycatch rates may be over-estimated by the effort redistribution model because the model estimated bycatch rates by assuming random or constant catch-per-unit-effort in all remaining open areas. This estimation procedure could skew results for certain species if those species are concentrated in certain areas, instead of being randomly distributed over the entire open area (see Section 7 and Appendix C of the FSEIS for full description of analytical procedures). Pelagic longline effort in the Caribbean (fishing areas below 22^oN latitude) represents approximately 14 percent of the total U.S. Atlantic-wide fishing effort, but accounts for over half of the total blue marlin discards by U.S. pelagic longline vessels. These areas were not considered for closure since they are generally located outside U.S. EEZ waters. Therefore, it is likely that the no effort redistribution model would be more applicable for blue marlin (12 percent reduction in discards). White marlin discards were less concentrated in the Caribbean (32 percent of total Atlantic-wide levels), and did not show any identifiable patterns, particularly after the live bait effects were removed from the catch patterns. Therefore the effort redistribution model (11 percent increase in white marlin discards) is probably more applicable in this case, indicating that white marlin discards are problematic and will need to be closely monitored. The prohibition of live bait will potentially further reduce Atlantic-wide discard levels of blue marlin and white marlin by approximately 3 percent, and sailfish by 15 percent. Because large coastal sharks are overfished, management efforts that reduce discards (33.3 percent under the effort redistribution model) are likely to be beneficial to stock recovery, and in that regard, meet the objectives of the final rule.

Comment 13: The closures included in the proposed rule will not be effective in rebuilding overfished HMS stocks unless huge areas of the Atlantic Ocean outside the U.S. EEZ are also closed.

Response: NMFS is obliged by NS9 to take actions to minimize bycatch to the extent practicable. The management actions included in the final rule are taken to achieve the NS9 directive, consistent with the other National Standards. To the extent that reducing bycatch and bycatch mortality impacts juvenile and reproductive HMS populations, the final actions may augment rebuilding programs for the overfished HMS stocks. While NMFS agrees that unilateral management action by the United States alone cannot rebuild overfished HMS stocks, the United States has been a leader in conservation of HMS resources and has taken many management actions (e.g., the time/area closures) to show the international forum our willingness to take the critical steps necessary to conserve these stocks. This fact has been used as a primary negotiation tool at ICCAT. The swordfish rebuilding program adopted by ICCAT in 1999 was based in large part on the rebuilding plan outlined in the HMS FMP. To the extent that the United States can use time/area closures and other bycatch reduction management strategies to convince other ICCAT member entities that bycatch can be minimized, the actions contained in the final rule may have a significant impact on Atlantic-wide rebuilding of overfished HMS stocks.

Comment 14: The entire Gulf of Mexico should be closed to pelagic longline fishing.

Response: NMFS disagrees that closure of the entire Gulf of Mexico to pelagic longline fishing is warranted. The proposed closure of the western Gulf of Mexico was predicated on the relatively higher billfish discards associated with the pelagic longline fishery operating in that area. Additional information and analyses obtained by NMFS subsequent to the publication of the DSEIS and proposed rule on December 15, 1999, indicate that prohibition of live bait could reduce blue and white marlin discards in the Gulf of Mexico by approximately 10 to 20 percent, and sailfish discards by 45 percent, depending upon the analytical procedure used. Closure of the DeSoto Canyon area in the northeastern Gulf of Mexico, although only a third the size of the western Gulf of Mexico closure (32,800 square miles vs. 96,500 square miles), will provide a greater benefit in the reduction of swordfish discards (4 percent reduction Atlantic-wide vs a 3.1 percent increase under the effort redistribution model) and will prevent vessels displaced from the southeastern U.S. Atlantic coastal closures from fishing in an area with an historically high rate of swordfish discards. The cumulative benefits of the northeastern Gulf closure and live bait prohibition meet the objectives of the final rule by providing a reasonable alternative to reduce bycatch rates, while minimizing economic and social impacts throughout the Gulf of Mexico.

Comment 15: NMFS has already closed too many areas to commercial fishing. The proposed closures will eventually lead to total closure of the entire region to commercial fishing.

Response: NMFS disagrees that the final rule closures will lead to elimination of the commercial pelagic longline fishery. However, NMFS agrees that use of time/area closures as a fishery management tool must involve careful consideration of the impact of agency action on all components of both commercial and recreational fisheries. However, implementation of reasonable conservation measures that meet Magnuson-Stevens Act directives is the overarching objective of the agency. To that end, NMFS has reduced the spatial and temporal constraints of the proposed closures and included a gear modification (prohibition of live bait) to address the economic and social concerns stemming from the proposed rule.

Comment 16: Closure of the DeSoto Canyon area, in addition to the western Gulf closure, will cause vessels to displace into the Atlantic and/or Caribbean which will negate the conservation measures associated with the closures.

Response: NMFS disagrees because the effort redistribution model assumes that effort is displaced randomly throughout the remaining open areas. Therefore, the conservation benefits associated with the final action closures account for movement of effort into the Caribbean, Mid-Atlantic Bight, or any other open area. Further, since the final rule does not close the western Gulf of Mexico, it is likely that the limited fishing effort currently expended within the DeSoto Canyon closure area (approximately one-third the size of the proposed Gulf closure) will be displaced within the Gulf of Mexico.

Comment 17: The proposed time/area closures are unjust, unnecessary, and inequitable, and as such will result in further lawsuits against NMFS.

Response: NMFS is obliged by NS9 of the Magnuson-Stevens Act to reduce bycatch, as throughly discussed in the HMS FMP and the proposed rule to reduce bycatch and incidental catch from the pelagic longline fishery. The use of time/area management is reasonable for the conservation and management of HMS resources and careful consideration of the participants in the pelagic longline fishery who target these over-fished, international fishery resources. The IRFA, RIR and other components of the DSEIS clearly identified the significant economic, social and community impacts associated with the proposed time/area closures. NMFS selected conservation measures in the final rule that meet the directives of the Magnuson-Stevens Act, while being mindful of the requirements of NS8 to minimize negative economic, social and community impacts, to the extent practicable. The agency must take appropriate actions to conserve resources as required by various national and international laws and agreements, whether or not these actions lead to litigation.

Comment 18: The DeSoto Canyon closure is needed to protect a swordfish nursery area, but it needs to be larger to be more effective.

Response: NMFS agrees that the DeSoto Canyon area is an area with an historically high ratio of swordfish discarded to swordfish kept. Although effort has been declining around DeSoto Canyon, NMFS has selected this area to be closed in the final rule to prevent further effort from being expended in this area, either by displaced effort from the Atlantic or by other vessels from other areas of the Gulf of Mexico. However, NMFS does not agree that additional areas are warranted at this time. The analysis that identified the constraints of the final rule closure included an investigation of catch history from the entire northeastern Gulf of Mexico, east of the Mississippi River and north of 26^oN latitude (general location of the U.S. EEZ).

Comment 19: NMFS should have considered closures in the Caribbean, including the EEZ around Puerto Rico and the U.S. Virgin Islands, to protect spawning populations of swordfish and billfish.

Response: Closures in the Caribbean were considered; however, as discussed in the DSEIS and FSEIS, closures were generally limited to U.S. EEZ waters where they would have maximum impact on all pelagic longline fishing effort. NMFS agrees that the Caribbean waters support important HMS spawning and nursery areas as identified in the essential fish habitat components of the HMS FMP and Billfish FMP Amendment. Pelagic longline effort in the Caribbean (fishing areas below 22^oN latitude) by U.S. flagged vessels is very effective in targeting swordfish with relatively low discard rates (approximately 6.7 fish kept to 1 discarded, as compared to an average 0.9 swordfish kept to 1 discarded in the DeSoto Canyon area). Conversely, the U.S. pelagic longline effort in the Caribbean represents approximately 14 percent of the total U.S. Atlantic-wide fishing effort, but accounts for over half of the total blue marlin discards by U.S. pelagic longline vessels. NMFS did not select a closure in the Caribbean area because of the extensive range of the fishing effort in the Caribbean, which occurs mainly in international waters. In addition, the configuration of the EEZ around both Puerto Rico and the U.S. Virgin Islands would make closures relatively ineffective.

Comment 20: NMFS should close the DeSoto Canyon area in addition to the proposed western Gulf of Mexico closure.

Response: NMFS agrees that the DeSoto Canyon should be closed year-round to reduce swordfish discards and prevent an increase in fishing pressure in this area as a result of displaced effort from the East Florida Coast closure. However, NMFS disagrees that the western Gulf of Mexico closure (March to September) is warranted at this time. The final rule includes a prohibition on the use of live bait on pelagic longline gear in the Gulf of Mexico. Analyses on this alternative indicates prohibiting use of live bait is likely to be as effective in reducing sailfish discards as the western Gulf closure, and about half as proficient in reducing marlin discards. However, in consideration of the magnitude of U.S. billfish discards relative to Atlantic-wide levels and the extent of the economic, social, environmental justice, and community impacts associated with the proposed western Gulf closure, modifying fishing practices is a reasonable alternative that effectively accomplishes the objectives of the agency actions by reducing billfish bycatch, to the extent practicable, while allowing fishing to continue in the western Gulf of Mexico.

Comment 21: There is no reason for NMFS to close the Desoto Canyon area to pelagic longline gear.

Response: NMFS disagrees. The rationale for closing the Desoto Canyon area year-round to pelagic longline fishing is two-fold. The first is to prohibit fishing in an area with an historically low ratio of swordfish kept to number of undersized swordfish discarded, which over the period of 1993 to 1998 has averaged less than one swordfish kept to one swordfish discarded. The other factor considered in closing this area was to prevent further increases in swordfish discards as a result of effort displacement into this area from the Florida East Coast year-round closure.

Comment 22: The closures included in the proposed rule are more effective than measures contained in various bills being considered in Congress.

Response: There are 3 different versions of bills currently before Congress. All are under review as part of the legislative process in developing a Congressional action. Therefore, it is difficult at this time to provide an accurate comparison of the areas that will be included in the final version of a time/area bill, if enacted, relative to the closures included in this interim final rule. The objectives of the legislative proposals are also different from those of the final action. NMFS has reviewed the various proposed legislative actions and provided (in testimony before Congress) an analysis of the relative effectiveness of the closures following the methods outlined in the FSEIS.

Comment 23: Although the original proposed rule and the additional Desoto Canyon closed area may not be contrary to ICCAT recommendations, they are in violation with sections of the Magnuson-Stevens and Atlantic Tunas Convention Acts. The action is not being taken to comply with ICCAT recommendations.

Response: NMFS disagrees that the proposed and final rules violate the Magnuson-Stevens Act and ATCA. In fact, if NMFS failed to address the issues developed in the final action, the agency would be in violation of Magnuson-Stevens Act directives related to NS9. Further, the 1999 ICCAT recommendation established a dead discard allowance that will require the United States to reduce swordfish discards by 25 percent from 1998 levels (i.e., 443 mt to 320 mt) during the 2000 fishing year; any discards in excess of the dead discard allowance will be taken off the following year's quota. The dead discard allowance is subsequently reduced to 240 mt in 2001, 160 mt in 2002 and 0 mt by 2004. The final rule considers all ten national standards in developing and selecting reasonable conservation and management measures toward reducing bycatch, to the extent practicable.

Gear Modifications

Comment 1: NMFS needs to do gear research specifically for the Atlantic pelagic longline HMS fishery. Results from gear modification research on other fisheries may not have the same effectiveness when applied to the Atlantic pelagic longline fishery.

Response: NMFS agrees that research on gear modifications would be most helpful if conducted in the Atlantic pelagic longline fishery. In fact, there have been several historical and on-going gear-based data collection and research programs specifically directed on the Atlantic and Pacific HMS pelagic longline fisheries. One study is looking at whether gear modifications such as circle hooks are effective at reducing bycatch mortality and cost-effective for the fishermen. Results are either inconclusive or too preliminary for application in the final rule. Funding is very limited at this time so research results are often applied to similar fisheries (e.g., western Pacific tuna longline and Gulf of Mexico tuna longline fishery).

Comment 2: NMFS should provide exempted fishing permits (EFPs) to research vessels in closed areas to investigate the effectiveness of gear modifications and fishing practices to reduce bycatch and incidental catch interaction with pelagic longline gear.

Response: NMFS agrees. Researchers must obtain a Scientific Research Permit (SRP) or EFP from NMFS to conduct research in a closed area with pelagic longline gear. A mechanism exists whereby NMFS can grant an SRP/EFP in order to obtain data (50 CFR 600.745). If a research team submits the required information including a research plan, NMFS would consider granting an SRP/EFP subject to the terms and requirements of the existing regulations.

Comment 3: NMFS received comments both supporting and opposing a regulation requiring the use of circle hooks in HMS fisheries. Comments include the following: require them on commercial and/or recreational HMS vessels; don't require them; they are safer than regular hooks, better, cheaper, and more effective than the DSEIS indicated.

Response: NMFS agrees that circle hooks are a promising tool that can be used in many hook and line fisheries to improve survival of hooked fish and turtles. NMFS has funded a study in the Azores, which has just begun to evaluate the effectiveness of circle hooks on sea turtle interactions and survival. NMFS may require circle hooks in the future if evidence is compelling that its effective use warrants the economic impacts as well as the enforcement costs. NMFS seeks the cooperation of all fishermen to explore the use of circle hooks as a means to reduce bycatch mortality which is less expensive and has less economic impact than other measures (e.g., more extensive time/area closures). Many recreational anglers have already switched to circle hooks, particularly when fishing with dead bait, with several recent articles in sportfishing magazines reporting on the value of using circle hooks to reduce hooking-related mortality levels.

Comment 4: NMFS should prohibit the use of live bait in the pelagic longline fishery. Conversely, if NMFS prohibits live bait, fishermen will switch from tuna to catch more swordfish, since most pelagic longline fishermen have incidental swordfish permits, which would result in increased bycatch of undersized swordfish.

Response: NMFS agrees that live bait should be prohibited. Live bait is used for 13 percent (logbook data) to 21 percent (observer data) of all pelagic longline sets in the Gulf of Mexico. Logbook and observer data indicate that blue and white marlin discards occur approximately twice as frequently on hooks with live bait; sailfish are discarded four to five times more frequently when live bait is utilized. Live bait is generally used to target yellowfin tuna, although dead bait is used on the majority of pelagic longline sets. Prohibiting live bait may lead to additional use of squid or other dead bait, which may be less effective than live bait in catching yellowfin tuna, but is a reasonable alternative to reducing billfish bycatch through an extensive closure of the western Gulf of Mexico. Some fishermen may switch from targeting tuna (daytime fishery) to targeting swordfish with dead bait, thereby increasing swordfish discards. However, fishing for swordfish with pelagic longline gear generally takes place during night-time hours, and has an added expense and complexity with the use of light sticks. In anticipation of fishermen targeting swordfish in the Gulf of Mexico in reaction to this prohibition, NMFS has implemented a time/area closure in a known swordfish nursery area in the eastern Gulf of Mexico (Desoto Canyon) in an attempt to avoid the increased catch rates of small swordfish there. Further, if longline fishermen "target" swordfish despite holding an Incidental swordfish permit, NMFS may need to reconsider Incidental bycatch limits because swordfish catches and/or bycatch of undersized swordfish could increase. Prohibiting use of live bait could be just as effective in reducing sailfish discards (approximately 15 percent reduction from the Atlantic-wide U.S. totals during 1995 through 1998) as the western Gulf closure. The live bait prohibition would be less effective in reducing marlin bycatch discards than the March to September area closure (e.g., blue marlin: 3.3% vs. a 7.2% reduction under the displaced effort model). The prohibition of live bait in the Gulf of Mexico is a practical alternative to the western Gulf closure.

Comment 5: NMFS should implement other gear modifications (e.g., decreasing length of longline, decreasing soak time, and timing of sets).

Response: NMFS agrees that gear modifications could be effective at reducing bycatch. However, many of these measures are difficult to enforce or could be circumvented by altering fishing patterns (e.g., additional sets made to offset a shortening of gear or soak time), resulting in no bycatch reduction. NMFS continues to support research projects regarding effectiveness of gear modifications, to the extent that funding allows.

Comment 6: NMFS should allow the U.S. Atlantic pelagic longline fishery one year to voluntarily reduce bycatch with the use of self-imposed gear modifications.

Response: NMFS disagrees. In the past, fishermen have been made aware of the economic, conservation, and policy reasons for bycatch reduction. During that time, fishermen generally have not been able to, or have chosen not to, use gear modifications to reduce bycatch to appropriate levels. Further, as a result of a 1999 ICCAT recommendation setting Atlantic-wide discard quotas, the United States must immediately reduce swordfish discards during the 2000 fishing year to 320 mt; in 1998, a total of 443 mt of swordfish discards from the North Atlantic were reported by the United States. The ICCAT recommendation also incrementally reduces the dead discard allowance to zero by the 2004 fishing year. Any dead discards over the annual allowance will be taken off the following year's quota. Therefore, it is in the best interest of the industry for NMFS to mandate bycatch reduction measures at this time.

Comment 7: NMFS should limit the soak times of pelagic longline gear to reduce the number of dead discards.

Response: NMFS evaluated an alternative in the FSEIS that would reduce pelagic longline soak time to six hours. The strategy would reduce the amount of time that pelagic longline gear could be deployed and thus reduce fishing effort (hours/hook) for each longline set. The current range of soak time for pelagic longline gear is 5 to 13 hours. This alternative was rejected based on the practicality of enforcement and the likelihood that fishermen would make two sets during a day, or otherwise extend a fishing trip to execute a similar level of effort/trip. Since most billfish hit a longline hook during setting or retrieving, requiring a measure that forced a greater frequency of hooks moving through the water column could increase billfish discards. However, consideration of limiting soak time will likely be considered in developing alternatives to address concerns raised in the draft BO to reduce sea turtle takes.

Environmental Justice

Comment 1: The proposed closed areas would disproportionally affect African-Americans in South Carolina, Vietnamese-Americans in the states bordering the Gulf of Mexico, and low-income crew members.

Response: NMFS considered environmental justice concerns as required by E.O. 12898 in selecting the final actions of the final rule. By minimizing the size of the closure in the Gulf of Mexico through prohibiting the use of live bait, and by shortening the closed season for the Charleston Bump area, NMFS expects that the economic and social effects of the closures on minority groups and all other components of the pelagic longline fishing community will be minimized to the extent practicable from proposed rule levels.

Protected and Endangered Species

Comment 1: NMFS should re-designate the longline fishery from a Category I to a Category II fishery under the MMPA because the fishery bycatch meets the criteria of a Category II designation.

Response: The fishery classification criteria consists of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. The classification of each fishery into Category I, II, or III is established in the annual List of Fisheries. NMFS bases its classification of commercial fisheries on a variety of different types of information. The best source of information concerning the level of fishery-specific marine mammal incidental serious injury and mortality is a fishery observer program. If observer data are not available, NMFS may use fishermen's reports submitted per the requirements of the Marine Mammal Authorization Program since 1996 (or the Marine Mammal Exemption Program from 1989 to 1995), stranding data, data from other monitoring programs, and other sources of information. The Atlantic pelagic longline fishery has been monitored with about 2 to 5 percent observer coverage, in terms of sets observed, since 1992. The 1992-1997 estimated take was based on an analysis of the observed incidental take and self-reported incidental take and effort data. The 1998 stock assessment reports, which were used for the 1999 List of Fisheries, included data which placed the pelagic longline fishery into Category I. NMFS will reevaluate the categorization of fisheries in the 2001 List of Fisheries. However, NMFS anticipates using serious injury data, which would likely cause the pelagic longline fishery to remain in Category I.

Comment 2: NMFS should be more concerned about fishermen than sea turtles.

Response: NMFS is concerned about achieving conservation benefits of the final rule while at the same time minimizing expected economic impacts on fishermen and related businesses, to the extent practicable. However, NMFS must also be in compliance with the Endangered Species Act, which requires NMFS to take appropriate actions to protect endangered or threatened species (e.g., sea turtles). The final rule includes reasonable actions that balance requirements of the Magnuson-Stevens Act and ATCA (as it applies to swordfish discards) to reduce bycatch and seek long-term rebuilding of overfished HMS stocks, while minimizing economic and social impacts to the extent practicable. It is clear that the final actions will have significant social and economic impacts on various components of the pelagic longline communities. NMFS chose the alternatives that maximize the conservation benefits while minimizing the economic and social impacts. NMFS recognizes those impacts and has noted possible sources of relief (see Section 8.0 of FSEIS).

Comment 3: The projected increase in turtle takes as a result of the proposed closures (under the redistribution of effort model) is not likely because many boats are not capable of redistributing their longline effort to the Grand Banks.

Response: NMFS agrees that turtle bycatch rates may be over-estimated by the effort redistribution model because estimation of catch-per-unit-effort in the remaining open areas could be skewed if species are concentrated in one area (such as sea turtles in the Grand Banks or blue marlin in the Caribbean; see FSEIS for further information), rather than randomly distributed over the entire open area. Although fishing in the Grand Banks area would necessitate the use of a relatively larger vessel, for practical and safety reasons, than currently utilized in some of the closed areas (e.g., east Florida coast), it is possible that some boats will commence fishing on the Grand Banks or increase current effort in this area to avoid closed areas, resulting in potential increases in turtle interactions. It is not known at this time how many vessels are expected to redistribute their effort to areas and times where turtle interactions are highest, but fishing activities will be continually monitored through the VMS program, as well as through logbooks and on-board observers. The anticipated takes for loggerheads and leatherback sea turtles for pelagic longline gear established by the incidental take statement were exceeded during 1999, as discussed in Section 5.8 of the FSEIS. A draft BO from early June 2000 had a jeopardy finding for loggerhead sea turtles. The final BO, expected in late June 2000, might have an additional jeopardy finding pending further analyses. NMFS is initiating efforts to address this issue as raised in the draft BO, including possible regulatory and non-regulatory actions.

Dolphin/Wahoo Issue

Comment 1: Comments were received that the mahi "loophole" undermines the effectiveness of the HMS time/area rule; Vessels using longline gear to target dolphin (mahi) should be prohibited from the HMS pelagic longline closed areas; NMFS should continue to work with the Councils to coordinate closed areas to reduce bycatch; If an exception is made for the closed area, HMS longline fishermen may move into the dolphin fishery.

Response: NMFS has notified the respective fishery management councils of the jurisdictional issues presented by vessels fishing with longline gear for species that are not directly managed by the Secretary of Commerce (e.g., dolphin). The South Atlantic Fishery Management Council has prepared a proposed Dolphin and Wahoo Fishery Management Plan with a preferred alternative that would prohibit the use of pelagic longline gear for dolphin and wahoo in areas closed for HMS. NMFS cannot predict whether HMS longline fishermen will move into the dolphin fishery but it is unlikely that there would be a major shift in effort. Vessel operators may not fish with pelagic longline gear in closed areas if they hold an HMS permit, therefore they would have to relinquish all HMS permits in order to do so. NMFS does not expect that longline fishermen would sell their swordfish and tuna permits in order to target dolphin for a seasonal fishery of limited size and duration.

Comment 2: NMFS should implement emergency regulations until the respective Councils can close the potential loophole posed by the longline fishery for dolphin:

Response: If the level of fishing effort targeting dolphin increases, it would most likely be due to factors other than the time/area closures implemented for bycatch reduction in the tuna/swordfish longline fisheries. It is unlikely that vessels affected by the HMS closures would give up HMS permits specifically to conduct a dolphin fishery. NMFS and the respective Councils can monitor effort, catch and bycatch of non-HMS permitted longline fishermen targeting dolphin in the HMS closed areas and determine if further action is required. The South Atlantic Fishery Management Council has already undertaken preliminary steps in preparing a proposed Dolphin and Wahoo FMP that includes parallel closures.

Comment 3: No billfish or swordfish are caught in the mahi fishery; NMFS should not shut down the mahi longline fishery; it has virtually no discards and the stock is healthy; NMFS needs to analyze the dolphin fishery more closely in evaluating the impacts of the pelagic longline time/area closure.

Response: Recognizing the jurisdictional issues, NMFS has asked the appropriate Fishery Management Councils to examine management options guiding use of pelagic longline gear to target dolphin. In the FSEIS, NMFS has included a more detailed discussion of the potential bycatch issues in the pelagic longline fishery for dolphin. Logbook reports from 1998 were examined for all sets made in the area from Key West, FL to Wilmington Beach, NC. It was not possible to identify effort in the dolphin fishery with certainty, but sets were separated into those targeting swordfish/tunas/sharks and those listing a target as "other." It was presumed that sets listing a target as "other" are predominantly targeting dolphin and this was reflected in the nearly 10 fold higher catch per set of dolphin. While swordfish and bluefin tuna discards were generally lower for the presumed dolphin sets, bycatch of billfish, sharks and BAYS tunas seems to be a concern. More specific information on catch occurring when pelagic longlines are set to target dolphin would be needed to confirm or refute the bycatch concerns. In the interim, to facilitate enforcement and to take a precautionary approach, NMFS has decided that HMS- permitted vessels should be prohibited from setting all pelagic longline gear in the closed areas, regardless of target specie