SUPPLEMENTARY INFORMATION:

Federal Atlantic HMS fisheries (sharks, tunas, billfish, and swordfish) are managed under the 2006 Consolidated HMS Fishery Management Plan (HMS FMP) and its amendments, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) and consistent with the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.). HMS are defined at section 3(21) of the Magnuson-Stevens Act (16 U.S.C. 1802(21)) and the provisions for their management are at section 304(g)(1) (16 U.S.C. 1854(g)(1)). ATCA is the implementing statute for binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). HMS implementing regulations are at 50 CFR part 635. The procedures established by the HMS FMP and implemented in the HMS regulations (see § 635.34(b)) allow NMFS to modify management measures, using a framework adjustment implemented by regulation. Section 635.21(c) and (d) provide regulations specific to the use of pelagic and bottom longline gear, respectively.

NMFS has prepared a document that contains a draft Environmental Assessment (EA), draft Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA). This document presents the alternatives considered for this proposed rule and analyzes their anticipated environmental, social, and economic impacts. A brief summary of background information and the alternatives considered is provided below. Additional information regarding this action and HMS management overall can be found in the draft EA/RIR/IRFA, the HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at https://www.fisheries.noaa.gov/​topic/​atlantic-highly-migratory-species.

Statutory Authority

The Magnuson-Stevens Act, among other things, requires measures necessary for the conservation and management of the fishery to be consistent with the ten National Standards set forth in section 301(a) (16 U.S.C. 1851(a)). While all of the National Standards are relevant, specific to the objectives of this action, the National Standards state that measures must: prevent overfishing while achieving optimum yield from the fishery (National Standard 1); be based on the best scientific information available (National Standard 2); to the extent practicable, manage the stock throughout its range and manage interrelated stocks as a unit or in close coordination (National Standard 3); take into account and allow for variations among fisheries, fishery resources, and catches (National Standard 6); and minimize bycatch, and to the extent bycatch cannot be avoided, minimize the mortality of bycatch (National Standard 9). Furthermore, the Magnuson-Stevens Act allows for management actions to designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear (Magnuson-Stevens Act section 303(b)(2)(A) or 16 U.S.C. 1853(b)(2)(A)). The Magnuson-Stevens Act also allows for management actions to establish specified limitations which are necessary and appropriate on the catch of fish (based on area, species, size, number, weight, sex, bycatch, total biomass, or other factors) (Magnuson-Stevens Act section 303(b)(3)(A) or 16 U.S.C. 1853(b)(3)(A)). Section 304(c) and (g) provides for the promulgation of regulations to implement an FMP that is prepared by NMFS, such as the HMS FMP (see 16 U.S.C. 1854(c), (g)).

Background

Prior to 2006, NMFS implemented a number of time/area closures (now referred to as spatial management areas), which include gear restricted areas in the Atlantic Ocean and Gulf of America, which applied specifically to either pelagic longline or bottom longline gear. These spatial management areas include the Charleston Bump, DeSoto Canyon, East Florida Coast, and Mid-Atlantic shark closed area (later renamed the Mid-Atlantic Bottom Longline Gear Restricted Area.

Once these areas were established, NMFS realized that having quantifiable criteria to differentiate between pelagic longline and bottom longline fishing gear in gear restricted areas would assist with effective monitoring of, and compliance with, HMS gear restricted areas. Moreover, such criteria could assist in removing any ambiguities by clarifying that pelagic longline gear would logically be expected to capture pelagic species and vice-versa. As a result, in 2006, NMFS published the HMS FMP and its final rule which, among other things, established a 5-percent limit (by weight) on the allowable amount of pelagic indicator species that bottom longline vessels may possess or land from pelagic longline gear restricted areas, and established a 5-percent limit (by weight) on the allowable amount of demersal indicator species that pelagic longline vessels may possess or land from bottom longline gear restricted areas (measured relative to the total weight of all pelagic and demersal indicator species) (71 FR 58058, October 2, 2006). The indicator species were chosen because they constituted the primary target species in pelagic and bottom longline fisheries in 2000 through 2004. Based on public comment regarding the draft pelagic and demersal indicator species lists, NMFS modified the list of demersal indicator species by removing certain sharks (silky and hammerhead sharks) and by adding several species of tilefish (tilefish, blueline tilefish, and sand tilefish). These modifications were made because the aforementioned shark species can be caught on both pelagic and bottom longlines, and because the tilefish species were indicative of demersal fishing activity. These species are listed in tables 2 and 3 to appendix A to part 635.

The 5-percent limit was based on data from 2000 through 2004 analyzed in the HMS FMP that indicated that the 5-percent threshold was slightly above the average weight of pelagic species that were reported in the Coastal Fisheries logbook (4.45 percent), and slightly above the average weight of demersal species that were reported in the Atlantic HMS logbook (4.52 percent). Within the HMS FMP and final rule, NMFS further stated that, if necessary, the 5-percent limit (by weight) and the list of indicator species could be modified in the future based upon a review of historic and current landings and the effectiveness of the regulation.

Since 2006, NMFS has implemented additional time/area closures and gear restricted areas, and backstopped ( printed page 20621) regulations related to areas designated by fishery management councils, including marine protected areas in the South Atlantic, time/area closures in the Caribbean, and habitat areas of particular concern in the Gulf of America. Additionally, NMFS has established or improved the effectiveness of a variety of mechanisms that are used to monitor and aid in compliance ( e.g., vessel monitoring systems (VMS)) of pelagic and bottom longline vessels fishing within gear restricted areas. Currently, all vessels with pelagic longline gear on board are required to install and use a VMS unit, and bottom longline vessels are required to install and use a VMS unit when bottom longline gear is on board off South Carolina, North Carolina, and Virginia between 33°00′ N lat. and 36°30′ N lat. from January 1 through July 31. In addition to ensuring the VMS unit is always on, operating, and reporting position data, prior to leaving port for any trip, all longline vessels must declare any HMS the vessel will target on that trip and the specific type(s) of fishing gear that will be on board the vessel (“hail-out”). If the vessel is participating in multiple fisheries or switches to a different gear type or target species group, the vessel must submit another declaration.

Furthermore, since 2006, there have been changes to the management of HMS on the pelagic and demersal indicator species lists. Sandbar sharks cannot be retained in commercial fisheries unless participants are part of the shark research fishery (73 FR 40658, July 15, 2008). The retention and sale of oceanic whitetip sharks were prohibited when caught in association with ICCAT fisheries (76 FR 53652, August 29, 2011). Porbeagle sharks can be retained on pelagic longline gear only when they are dead at haulback (81 FR 57803, August 24, 2016). The commercial retention limit for shortfin mako sharks has been set at zero since 2022 (87 FR 39373, July 1, 2022). Oceanic whitetip shark was removed from the pelagic species list and placed on the prohibited sharks list, following the Endangered Species Act (ESA) listing as threatened and subsequent consultations on HMS fisheries (89 FR 278, January 3, 2024).

In recent years, NMFS has received numerous requests from both pelagic and bottom longline fishermen, including HMS Advisory Panel members, to remove both the pelagic and demersal indicator species regulations and corresponding pelagic and demersal indicator species lists as a way to provide increased flexibility to operate more efficiently. For example, pelagic and bottom longline fishermen have found that these regulations hinder their ability to lawfully retain non-HMS while fishing with appropriate gear in gear restricted areas. These fishermen have pointed out inequities in the various fishing regulations, ( i.e., that fishermen who do not hold HMS permits on their vessels are not required to follow the Federal HMS regulations when fishing for non-HMS in the same areas with the same fishing gears). Furthermore, some species on pelagic and demersal indicator species lists may no longer be retained under Federal regulations for Fishery Management Council managed species, and at a minimum, the species lists may need to be updated.

NMFS presented on this topic at the fall 2021 HMS Advisory Panel (AP) Meeting and solicited recommendations for maintaining, updating, or removing the indicator species lists and/or associated gear regulations. The HMS AP was generally supportive of removing these species lists and regulations.

Proposed Measures

As stated above, the purpose of this action is to increase fishing flexibilities, remove regulatory inefficiencies, and optimize the ability of pelagic and bottom longline fisheries to harvest available quotas to the extent practicable while still achieving fishery management and conservation goals in the HMS pelagic and bottom longline fisheries. To achieve these goals, NMFS considered three alternatives regarding the pelagic and demersal indicator species regulations and indicator species lists. These alternatives included both no action and the preferred alternative.

Specific to the preferred alternative, Alternative 3, NMFS is proposing to remove the current regulations at 50 CFR 635.21(c)(1)(i) and (d)(2) implementing a 5-percent limit (by weight) on the allowable amount of indicator species that pelagic longline and bottom longline vessels may possess or land when fishing in pelagic and bottom longline gear restricted areas. NMFS would also remove the pelagic and demersal indicator species lists (tables 2 and 3 of appendix A to 50 CFR part 635).

This alternative would likely provide HMS permitted longline fishermen with more fishing flexibility. HMS pelagic and bottom longline fishermen who hold permits for HMS and Council-managed species at the same time would be able to land the allowable amount of pelagic and demersal species under those permits without the restrictive five-percent weight limit. Increased flexibility would allow HMS pelagic and bottom longline fishermen the opportunity to use fishing gears ( i.e., bandit gear) authorized under regulations for Council-managed species in the same way as fishermen that hold permits for only Council-managed species, noting that HMS fishermen cannot retain bluefin tuna with a gear type onboard the vessel that is not authorized for bluefin tuna retention under an Atlantic Tunas Longline category permit. This alternative may allow for additional opportunities to harvest available quotas for both HMS and non-HMS ( e.g., grouper, snapper, tilefish) and thus generate some additional revenue on HMS trips.

Other Alternatives Analyzed

NMFS also analyzed a no action alternative (Alternative 1) that would maintain the status quo. NMFS does not prefer the no action alternative as it would continue to maintain pelagic and demersal indicator species regulations that may be outdated, difficult to enforce, and no longer necessary to determine the gear types being used by either pelagic or bottom longline fishing vessels in HMS gear restricted areas. Alternative 1 could contribute to inequitable fishing opportunities for HMS pelagic and bottom longline fishermen who hold permits for both HMS and Council-managed fisheries.

NMFS also considered another alternative that would update the lists of pelagic and demersal indicator species (tables 2 and 3 of appendix A to 50 CFR part 635) and maintain the current regulations at 50 CFR 635.21(c)(1)(i) and (d)(2) implementing a five-percent weight limit on possessing or landing indicator species (Alternative 2). NMFS does not prefer Alternative 2 because, although this alternative would update the pelagic and demersal indicator species lists, the current 5-percent limit would continue to be in effect thus limiting the flexibility of pelagic and bottom longline fishermen.

Request for Comments

NMFS is requesting comments on this proposed rule, which may be submitted via www.regulations.gov or at the public hearing (see below). NMFS solicits comments on this action by May 29, 2026 (see DATES and ADDRESSES ).

During the comment period, NMFS will hold a public hearing via webinar for this proposed action on May 21, 2026, from 1 p.m. to 3 p.m. ET. Further information on how to attend the webinar can be found at https://www.fisheries.noaa.gov/​action/​proposed-rule-pelagic-and-demersal-indicator-species-regulations-atlantic- ( printed page 20622) highly-migratory. Requests for sign language interpretation or other auxiliary aids should be directed to Larry Redd, Jr., larry.redd@noaa.gov, or Carrie Soltanoff at carrie.soltanoff@noaa.gov, by email or by phone at 301-427-8503, at least 7 days prior to the meeting. In addition, any requests for in-person public hearings during the comment period should be directed to Larry Redd, Jr., or Carrie Soltanoff.

The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each public hearing, a representative of NMFS will explain the ground rules ( e.g., alcohol is prohibited from the hearing room, 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). At the beginning of each webinar, the moderator will explain how the webinar will be conducted and how and when participants can provide comments. The NMFS representative(s) will attempt to structure the webinar so that all attending members of the public will be able to comment, if they so choose, though time limits or restrictions on back-and-forth discussion may be necessary to ensure everyone in the queue has an opportunity to speak. Attendees are expected to respect the ground rules, and if they do not, they may not be allowed to speak during the webinar.

Classification

Rulemaking Authority

NMFS is issuing this rule pursuant to section 304(c) and (g) of the Magnuson-Stevens Act. The NMFS Assistant Administrator has determined that this proposed rule is consistent with the HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law, subject to further consideration after public comment.

Executive Order 12866

This proposed rule has been determined to be significant for purposes of Executive Order 12866.

Executive Order 14192

This proposed rule is expected to be an Executive Order 14192 deregulatory action.

Executive Order 13175

NMFS has determined that this action would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes; therefore, consultation with Tribal officials under Executive Order 13175 is not required, and the requirements of sections (5)(b) and (5)(c) of Executive Order 13175 also do not apply. A Tribal summary impact statement under section (5)(b)(2)(B) and section (5)(c)(2)(B) of Executive Order 13175 is not required and has not been prepared.

Initial Regulatory Flexibility Analysis

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows, and a copy of the entire analysis is available from NMFS (see ADDRESSES ).

Section 603(b)(1) of the RFA requires agencies to describe the reasons why the action is being considered. The purpose of this action is to increase fishing flexibility, remove regulatory inefficiencies, and optimize the ability of pelagic and bottom longline fisheries to harvest available quotas to the extent practicable while still achieving fishery management and conservation goals in the HMS pelagic and bottom longline fisheries.

Section 603(b)(2) of the RFA requires agencies to state the objectives of, and legal basis for, the proposed action. The objective of this proposed rulemaking is to modify or remove inefficient and outdated regulations to allow for additional fishing opportunities in HMS pelagic and bottom longline fisheries. The legal basis for the proposed rule is the Magnuson-Stevens Act and ATCA.

Section 603(b)(3) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. SBA's regulations authorize other agencies to develop their own industry-specific size standards after consultation with the SBA Office of Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register , which NMFS did on December 29, 2015 (80 FR 81194). In that final rule, effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (North American Industry Classification System (NAICS) code 11411) for RFA compliance purposes. NMFS completed a review of the small business size standard on November 24, 2025 (90 FR 52917) that resulted in maintaining the existing size standard.

The proposed rule would apply to the permit holders of 164 Swordfish Directed, 63 Swordfish Incidental, 188 Shark Directed, 221 Shark Incidental, and 223 Atlantic Tunas Longline category limited access permits. NMFS considers all commercial HMS permit holders to be small entities because they have average annual receipts of less than their sector's standard of $11 million. NMFS has determined that the proposed rule would not likely affect any small governmental jurisdictions. More information regarding the description of the fisheries affected, and the categories and number of permit holders can be found in the HMS SAFE Report.

Section 603(b)(4) of the RFA requires agencies to describe any new reporting, record-keeping, and other compliance requirements. This proposed rule does not contain any new collection of information, reporting, or record-keeping requirements.

Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed action. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other fishery management measures. These include, but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed action has been determined not to duplicate, overlap, or conflict with any Federal rules.

Under section 603(c) of the RFA, agencies must describe any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize ( printed page 20623) any significant economic impact of the proposed rule on small entities. The analysis shall discuss significant alternatives such as: (1) establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities. These categories of alternatives are described at 5 U.S.C. 603(c)(1)-(4). NMFS examined each of these categories of alternatives. Regarding the first, second, and fourth categories, NMFS cannot establish differing compliance or reporting requirements for small entities or exempt small entities from coverage of the rule or parts of it because all of the businesses impacted by this rule are considered small entities and thus the requirements are already designed for small entities. NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed several different alternatives in this proposed rulemaking, and provided rationales for identifying the preferred alternatives to achieve the desired objectives. The alternatives considered and analyzed are described below. The IRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.

Alternative 1

Under Alternative 1, the no action alternative, NMFS would maintain the current regulations at 50 CFR 635.21(c)(1)(i) and 635.21(d)(2). As part of this alternative, NMFS would also keep the lists of pelagic and demersal indicator species (tables 2 and 3 to appendix A to 50 CFR part 635). Under this alternative, NMFS would continue to differentiate between vessels using pelagic and bottom longline gear based upon the percentages of pelagic and demersal indicator species catch onboard or landed. Maintaining the status quo would continue to restrict the ability of pelagic and bottom longline fishermen to switch gears in gear restricted areas to possibly fish for non-HMS, thus resulting in a missed opportunity to earn revenue from their non-HMS catch. Furthermore, this alternative would likely not change fishing rates and efforts by pelagic and bottom longline fishermen from current levels. Thus, Alternative 1 would likely result in neutral to minor adverse economic impacts on small entities participating in HMS pelagic and bottom longline fisheries.

Alternative 2

Under Alternative 2, NMFS would update the lists of pelagic and demersal indicator species (tables 2 and 3 of appendix A to 50 CFR part 635). As part of this alternative, NMFS would also maintain the current regulations at 50 CFR 635.21(c)(1)(i) and (d)(2) implementing a 5-percent weight limit on possessing or landing pelagic and demersal indicator species. Under this alternative, NMFS would update the pelagic and demersal indicator species lists based on several factors including, but not limited to, determination of the primary species landed in pelagic and bottom longline fisheries, consideration of HMS that are prohibited or have no retention or limited retention, or consideration of species that are prohibited or have no retention in areas under the relevant fishery management councils. This alternative would continue to restrict the ability of pelagic and bottom longline fishermen to switch gears in gear restricted areas to possibly fish for non-HMS, thus resulting in a missed opportunity to earn revenue from their non-HMS catch. Furthermore, this alternative would likely not change fishing rates and efforts by pelagic and bottom longline fishermen from current levels. Thus, Alternative 2 would likely result in neutral to minor adverse economic impacts on small entities participating in HMS pelagic and bottom longline fisheries.

Alternative 3

Under preferred Alternative 3, NMFS would remove the current regulations at 50 CFR 635.21(c)(1)(i) and (d)(2) implementing a 5-percent weight limit on the allowable amount of indicator species that pelagic longline and bottom longline vessels may possess or land when fishing in pelagic and bottom longline gear restricted areas. NMFS would also remove the pelagic and demersal indicator species lists (tables 2 and 3 of appendix A to 50 CFR part 635). The goal of this action is to increase fishing flexibility, remove regulatory inefficiencies, and optimize the ability of pelagic and bottom longline fisheries to harvest available quotas to the extent practicable while still achieving fishery management and conservation goals in the HMS pelagic and bottom longline fisheries. Under this alternative, HMS pelagic and bottom longline fishermen would have more fishing flexibility that may allow for additional HMS and non-HMS landings. HMS pelagic and bottom longline fishermen who hold permits for HMS and Council-managed species at the same time will be able to land the allowable amount of pelagic and demersal species under those permits without the restrictive 5-percent weight limit. Increased flexibility would allow HMS pelagic and bottom longline fishermen the opportunity to use fishing gears ( i.e., bandit gear) authorized under regulations for Council-managed species in the same way as fishermen that hold permits for only Council-managed species, noting that HMS fishermen cannot retain bluefin tuna with a gear type onboard the vessel that is not authorized for bluefin tuna retention under an Atlantic Tunas Longline category permit. This alternative may allow for additional opportunities to harvest available quotas for both HMS and non-HMS ( e.g., grouper, snapper, tilefish) thus generating some additional revenue on HMS trips. Thus, NMFS believes Alternative 3 would likely result in neutral or minor beneficial economic impacts on small entities participating in HMS pelagic and bottom longline fisheries.

Paperwork Reduction Act

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 635 as follows:

1. The authority citation for part 635 continues to read as follows:

Authority: 16 U.S.C. 971 et seq.;16 U.S.C. 1801 et seq.

2. In § 635.21, remove and reserve paragraphs (c)(1)(i) and (d)(2).

3. Remove and Reserve Table 2 of Appendix A to Part 635.

4. Remove and Reserve Table 3 of Appendix A to Part 635.

91 FR 20619