[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Rules and Regulations]
[Pages 30484-30528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12407]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 600 and 635
Atlantic Highly Migratory Species; Atlantic Shark Management Measures;
Amendment 3; Final Rule
Federal Register / Vol. 75 , No. 104 / Tuesday, June 1, 2010 / Rules
and Regulations
[[Page 30484]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 600 and 635
[Docket No. 080519678-0217-02]
RIN 0648-AW65
Atlantic Highly Migratory Species; Atlantic Shark Management
Measures; Amendment 3
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS publishes this final rule implementing the Final
Amendment 3 to the Consolidated Atlantic Highly Migratory Species (HMS)
Fishery Management Plan (FMP). As it developed Amendment 3, NMFS
examined a full range of management alternatives available to rebuild
blacknose sharks and end overfishing of blacknose and shortfin mako
sharks, consistent with recent stock assessments, the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), and
other applicable law, and evaluated options for managing smooth dogfish
as a highly migratory species under the HMS FMP. This final rule
implements the final conservation and management measures in Amendment
3 for blacknose sharks, shortfin mako sharks, and smooth dogfish. In
order to reduce confusion with spiny dogfish regulations, this final
rule places both smooth dogfish and Florida smoothhound into the
``smoothhound shark complex.'' This final rule also announces the
opening date and 2010 annual quotas for small coastal sharks (SCS).
These changes could affect all fishermen, commercial and recreational,
who fish for sharks in the Atlantic Ocean, the Gulf of Mexico, and the
Caribbean Sea.
DATES: The SCS fishery opens on June 1, 2010.
This final rule is effective on July 1, 2010, except for the
amendments to Sec. Sec. 635.27(b)(1)(i) through (v) and 635.28(b)
which will be effective on June 1, 2010.
However, Sec. Sec. 635.4(e)(4), 635.20(e)(4), 635.22(c)(6),
635.24(a)(7), 635.27(b)(1)(vi), 635.27(b)(2)(iv), and section E of
Table 1 of Appendix A, contain information collection requirements
which are pending approval by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act (PRA). A document will be published
in the Federal Register announcing the effective date of those
provisions when they are approved.
ADDRESSES: Copies of the final Amendment 3 to the Consolidated HMS FMP,
including the Final Environmental Impact Statement (FEIS), the latest
shark stock assessments, and other documents relevant to this rule are
available from the Highly Migratory Species Management Division Web
site at http://www.nmfs.noaa.gov/sfa/hms or by contacting LeAnn
Southward Hogan or Karyl Brewster-Geisz at 301-713-2347. Hard copies
may also be requested by writing to the HMS Management Division, 1315
East-West Highway, Silver Spring, MD 20910, or faxing to (301) 713-
1917.
NMFS has not yet submitted an application to OMB for approval of
the collection-of-information regarding the smoothhound shark permit.
The implementation of this specific requirement is delayed pending
approval by OMB. Once submitted, written comments regarding the burden-
hour estimates or other aspects of the collection-of-information
requirements may be submitted to Karyl Brewster-Geisz (see above) and
by e-mail to [email protected] or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz or LeAnn
Southward Hogan at 301-713-2347 or fax 301-713-1917 or Jackie Wilson at
240-338-3936 or fax 404-806-9188.
SUPPLEMENTARY INFORMATION:
Background
The Atlantic shark fisheries have been managed by the Secretary
pursuant to the HMS FMP for Atlantic sharks prepared under the
authority of the Magnuson-Stevens Act Sections 302(a)(3) and 304(g) in
1993 (1993 FMP). NMFS revised the 1993 FMP to include swordfish and
tunas in the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks (1999
FMP). After amending the 1999 FMP in 2003, NMFS consolidated the
Atlantic tunas, swordfish, and shark FMP and its amendments with the
Atlantic billfish FMP and its amendments creating the 2006 Consolidated
Atlantic HMS FMP. Amendments 1 and 2 amended the 2006 Consolidated HMS
FMP in 2009 and 2008, respectively. Amendment 3 further amends the 2006
Consolidated HMS FMP. The 2006 Consolidated HMS FMP and its amendments
are implemented by regulations codified at 50 CFR part 635.
On May 7, 2008, NMFS announced its determination that blacknose
sharks are overfished with overfishing occurring while Atlantic
sharpnose sharks, bonnethead sharks, and finetooth sharks are not
overfished and are not experiencing overfishing (73 FR 25665). These
determinations were based on the results of the 2007 SCS stock
assessment, which was conducted in a manner similar to the Southeast
Data Assessment and Review (SEDAR) process that is used by the South
Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils.
NMFS has found that this 2007 SCS stock assessment is the best
available science regarding the status of SCS. The status determination
criteria that are used to determine the status of Atlantic HMS are
fully described in Chapter 3 of the 1999 FMP, and fully incorporated in
the 2006 Consolidated HMS FMP, are summarized in other documents such
as Amendment 3, and are not repeated here.
NMFS has also determined that blue sharks are not overfished and
overfishing is not occurring. With respect to shortfin mako sharks,
however, NMFS has determined that the species while not overfished, is
approaching an overfished condition, and is subject to overfishing.
These determinations are based on international stock assessments
conducted by the International Commission for the Conservation of
Atlantic Tuna's (ICCAT's) Standing Committee for Research and Science
(SCRS). While these assessments are international, the status
determination criteria are the same as those used for SCS and all
Atlantic shark species that are managed under the 2006 Consolidated HMS
FMP and its amendments. NMFS has determined the ICCAT stock assessment
to be the best available science for managing shortfin mako and blue
sharks.
Under the Magnuson-Stevens Act, NMFS, when managing HMS on behalf
of the Secretary, is required to take action to end overfishing, to
rebuild an overfished fishery, and, if a fishery is approaching an
overfished condition, take action to prevent overfishing from
occurring. Since NMFS determined that the blacknose shark fishery was
overfished, it was responsible for developing conservation and
management measures to end overfishing and rebuild the fishery.
Similarly, upon learning that the shortfin mako fishery was approaching
an overfished condition, NMFS had a duty, taking into account the
international nature of the fishery, to take appropriate action at the
domestic or international level, to prevent overfishing of the shortfin
mako sharks. NMFS announced its intent to develop
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amendments to the 2006 Consolidated HMS FMP and prepare a corresponding
environmental impact statement (EIS) on May 7, 2008 (73 FR 25665), and
held five scoping meetings in 2008 (73 FR 37932, July 2, 2008; 73 FR
53407, September 13, 2008). During scoping, NMFS also consulted with
the HMS Advisory Panel in October 2008 (73 FR 53407, September 13,
2008), the five Regional Fishery Management Councils on the east coast,
and the Atlantic States and Gulf States Marine Fisheries Commissions.
NMFS also presented information at a bycatch reduction workshop that
was held by the Gulf and South Atlantic Fisheries Foundation. In
February 2009, NMFS presented the Predraft of Amendment 3 to the HMS
Advisory Panel (73 FR 67135, November 13, 2008).
In addition to potential measures to address overfished stocks and
to end overfishing, during the scoping process, NMFS identified the
need to add smooth dogfish into the management unit to provide for
conservation and management of the species. Smooth dogfish was
previously included as an HMS in a fishery management unit (FMU) that
included deepwater and other sharks in order to prevent finning. These
species were removed from the FMU in the 2003 Amendment 1 to the 1999
FMP for Atlantic Tunas, Swordfish, and Sharks since they were protected
from finning under the Shark Finning Prohibition Act (67 FR 6124,
February 11, 2002). As described below, based on comments and other
reasons, NMFS has determined that conservation and management of smooth
dogfish under the Magnuson-Stevens Act are warranted for several
reasons including the need to collect data regarding the fishery,
fishing effort, and life history of the species.
Based in part on the comments received during scoping and from the
HMS Advisory Panel on the Predraft, NMFS evaluated a full range of
alternative management measures for blacknose sharks, SCS, shortfin
mako sharks, and smooth dogfish within Amendment 3 (74 FR 36706 and 74
FR 36892). The details of what NMFS proposed and the alternatives
considered are described in the proposed rule and DEIS, which included
Draft Amendment 3. Those documents are incorporated by reference and
their description of management and conservation measures considered at
the DEIS and proposed rule stage are not repeated here. In the proposed
rule, NMFS announced nine public hearings from New Hampshire to
Louisiana, and set a deadline for the public comment period, which was
to end on September 22, 2009. On August 10, 2009, the comment period
was extended to September 25, 2009 (74 FR 39914), to accommodate two
public hearings scheduled on September 22, 2009, and the New England
Fishery Management Council meeting that was scheduled from September 22
through 24, 2009. The draft Amendment 3 was presented to the South
Atlantic (74 FR 44352), Mid-Atlantic (74 FR 34556), Gulf of Mexico (74
FR 36669), Caribbean (74 FR 40168), and New England (74 FR 45821)
Fishery Management Councils. The draft Amendment 3 was also presented
to ASMFC in August 2009. NMFS received a number of oral and written
comments on the proposed rule. The significant comments and NMFS'
responses are summarized below under the section labeled ``Response to
Comments.''
NMFS prepared an FEIS that discussed the direct, indirect and
cumulative impacts on the quality of the human environment as a result
of the preferred management measures identified for Amendment 3. The
FEIS, including the final actions identified for Amendment 3, was made
available in March 2010 (75 FR 13275, March 19, 2010). On May 18, 2010,
the Assistant Administrator for NOAA signed a Record of Decision
adopting Final Amendment 3 to the 2006 Consolidated HMS FMP. Final
Amendment 3 was comprised of the preferred alternatives identified by
NMFS in the FEIS. A copy of the FEIS, including final Amendment 3, is
available from NMFS (see ADDRESSES). As described in the FEIS and the
responses to comments below, and based in part on the public comments,
NMFS made a number of changes to the preferred alternatives between the
DEIS and FEIS. Corresponding changes were made, where appropriate, to
Draft Amendment 3 and the Proposed Rule resulting in Final Amendment 3
and this final rule. The specific changes are described below in the
section titled ``Changes from the Proposed Rule.'' In brief, the final
management measures implemented in this rule are: implement a non-
blacknose SCS annual quota of 221.6 mt dw; implement a blacknose shark
annual quota of 19.9 mt dw; take action at the international level to
end overfishing of shortfin mako sharks; promote in the domestic
fishery the release of shortfin mako sharks brought to commercial and
recreational fishing vessels alive; add smooth dogfish to the HMS
management unit; establish a smooth dogfish annual quota of 715.5 mt
dw; require that smooth dogfish fins remain attached to the carcass
through offloading; require commercial and recreational fishermen to
obtain a permit authorizing landings of smooth dogfish caught in or
transported through Federal waters; and make several administrative
changes clarifying, correcting, and updating the regulations, as
described in the proposed rule. Amendment 3 also finalized a mechanism
for determining annual catch limits (ACLs) and establishing
accountability measures (AMs) for the Atlantic shark fisheries managed
in the 2006 Consolidated HMS FMP and its amendments.
In this rule, NMFS is placing both smooth dogfish and the Florida
smoothhound into the `smoothhound complex.' NMFS intends this name
change to minimize any confusion with spiny dogfish regulations. Both
smooth dogfish and the Florida smoothhound, which, as described in
Amendment 3, are likely the same species, are found in the smoothhound
family (Triakidae) and are the only members of the smoothhound family
that are found on the Atlantic coast (there are other smoothhound
sharks found in the Pacific Ocean). Spiny dogfish, which have been
managed by the Mid-Atlantic Fishery Management Council (MAFMC) and New
England Fishery Management Council (NEFMC) since the early 1990s, is
often referred to as `dogfish' and is found in the dogfish family
(Squalidae). Thus, referring to `smoothhound' in the regulations and
requiring a smoothhound permit, rather than a smooth dogfish permit,
should help in the long term to eliminate any confusion that might be
caused by having two `dogfish' species and permits. NMFS expects some
confusion in the short term as fishermen adjust to the use of a new
term in the regulations. However, because common names of fish are
often different in different regions (e.g., striped bass and rockfish),
NMFS does not expect this confusion to last long.
The effectiveness of all the smoothhound management measures in
Final Amendment 3 and associated implementing regulations included in
the final rule will be delayed until the start of the 2012 fishing
season for smooth dogfish (approximately April 1, 2012), pending
approval for the data collection requirement under the PRA by OMB. NMFS
is delaying implementation of those measures to provide time for
affected fishermen to change business practices, particularly as it
relates to keeping the fins attached to the carcass through offloading,
and to provide time for implementing a permit requirement. NMFS is also
delaying implementation to provide additional time to complete a smooth
dogfish
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biological opinion under Section 7 of the Endangered Species Act (ESA).
NMFS will announce in a separate notice how to obtain a permit and any
other relevant details regarding implementation of these or other
smoothhound measures.
During the comment period for the proposed rule, NMFS received many
questions regarding the impetus for managing smooth dogfish. Over the
course of this rulemaking process, a number of stakeholders have
indicated, either in conjunction with or independent of this
rulemaking, that management of smooth dogfish is necessary. These
include environmental organizations that have specifically requested
management action, the Atlantic States Marine Fisheries Commission
(ASMFC) that included smooth dogfish in its management unit when
finalizing its Interstate FMP for Coastal Sharks, and the Mid-Atlantic
Fishery Management Council (MAFMC) that specifically requested
management authority to manage the smooth dogfish fishery. Also, based
on existing data, it is apparent that the smooth dogfish fishery is
substantial, and requires sound science-based conservation and
management to provide for the long-term sustainable yield of the stock.
The smooth dogfish fishery has significant annual landings when
compared with other shark fisheries and has a large directed component.
Previous experiences with shark fisheries and shark biology have
indicated that sharks in general are vulnerable to stock collapse in
the face of unrestricted fishing. Thus, adding the species to the FMU
now to begin collecting data is appropriate. Additionally, the vast
majority of the smooth dogfish catch occurs with gillnets. Some gillnet
fisheries in the Atlantic are defined as Category I fisheries under the
Marine Mammal Protection Act (MMPA), meaning the annual mortality and
serious injury of one or more marine mammal stocks in a given fishery
is greater than or equal to 50 percent of the Potential Biological
Removal (PBR) level. While all fisheries need to comply with the
requirements of the MMPA regardless of their management status, it is
more efficient and predictable to ensure the affected fishermen are
engaged in the process if their fishery is consistently managed in
accordance with uniform conservation and management measures developed
and implemented through an FMP in accordance with the procedures in the
Magnuson-Stevens Act. Lastly, the smooth dogfish market could overlap
with that of spiny dogfish, which is a species that is Federally-
managed with a significant directed fishery. Spiny dogfish required
restrictive management measures in the late 1990s and early 2000s to
deal with domestic overfishing. While domestically spiny dogfish stocks
appear to be healthy, other stocks are overfished internationally.
Because of the possible overlap in markets, NMFS is concerned that
smooth dogfish products can be used as a substitute for spiny dogfish
products. If there is market overlap, then declines in spiny dogfish
stocks (as have been seen internationally) and restrictive management
measures (including domestic management) could push, or might have
already pushed, effort into the smooth dogfish fishery. Until initial
management measures are in place to collect data concerning location,
effort, and the status of the stock, NMFS will not be able to determine
whether further or different conservation and management measures
through future FMP amendments and/or regulatory changes are necessary
due to the influence of the foregoing and other relevant factors. For
the foregoing reasons, NMFS has determined that the smoothhound fishery
is in need of conservation and management, and that the species is
suitable for management as a highly migratory species by the Secretary
in accordance with his authority over Atlantic HMS set forth in
Sections 302(a)(3) and 304(g) of the Magnuson-Stevens Act.
Response to Comments
A number of individuals and groups provided comments on the
proposed rule during the comment period in writing or at public
hearings. All written comments can be found at http://www.regulations.gov. The comments received resulted in numerous
changes, as described below in the Changes from the Proposed Rule
section. Significant comments are summarized below by major topic
together with NMFS' responses. There are eight major issues: SCS
commercial quotas, commercial gear restrictions, commercial pelagic
shark effort controls, recreational measures for SCS, recreational
measures for pelagic sharks, smooth dogfish, general comments, and
economic comments. The first major issue, SCS commercial quotas, has
the following sub-issues: science/stock assessment, shrimp trawls and
working with the Regional Fishery Management Councils, and quota
alternatives. The comments are numbered consecutively, starting with 1,
at the beginning of each major issue.
A. SCS Commercial Quotas
1. Science/Stock Assessment
Comment 1: NMFS received comments regarding the average weights
used for blacknose sharks. Commenters noted that the blacknose shark
stock must be healthy, since blacknose sharks of various sizes are
being landed across all fisheries. In addition, the Gulf of Mexico
Fishery Management Council (GMFMC) commented that the average size of
blacknose shark landed in the recreational fishery weighed only 1.5 lb
dressed weight (dw), which corresponds to a fish less than two feet
long, and therefore it appears that this data is incorrect. The
recreational catches included only landed sharks. However, released
blacknose sharks make up a substantial proportion of the total
recreational catches, in some years exceeding landings. In other stock
assessments, a release mortality percentage is applied to the releases
reported in Marine Recreational Fishing Statistics Survey (MRFSS) to
account for recreational dead discards. Leaving recreational dead
discards out may result in erroneous assessment results.
Response: NMFS recognizes that blacknose sharks of various sizes
are caught in the SCS fishery, and that the average weight for
recreationally-caught blacknose sharks, which is the best available
data from MRFSS, may be underestimated. However, only recreational
landings and discard data were used in the stock assessments; average
weights in the recreational fishery were not used in the 2007 SCS and
blacknose shark assessments. In order to estimate recreational landings
and dead discards for the stock assessment, NMFS used data from three
recreational surveys (MRFSS, the NMFS Headboat Survey, and the Texas
Parks and Wildlife Department Recreational Fishing Survey). NMFS also
used MRFSS to estimate blacknose shark average weights, and NMFS
realizes that an average weight for recreationally-caught blacknose
sharks of less than 2 lb dw reflects a small juvenile shark, but this
average weight of blacknose sharks is the best available data from
MRFSS. Recent data from the Southeast Fisheries Science Center (SEFSC)
has shown that the average size of blacknose sharks caught in gillnets
is 18.7 lb dw, as opposed to the 14.4 lb dw that was used in the Draft
Environmental Impact Statement (DEIS) analysis. Based on this updated
average weight, NMFS has modified the average weight of blacknose
sharks across all commercial gear types to 6.4 lbs, as opposed to 5.4
lbs used in the DEIS. Consistent with 40 CFR 1503.4(2) and (3), NMFS
responded
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to this comment in the DEIS, improved its analysis of blacknose
mortality rates, and developed, identified, and evaluated a new A6,
which would set the SCS quota at 221.6 mt dw and the blacknose quota at
19.9 mt dw. The preferred alternative in the DEIS was A4.
Comment 2: Several commenters had questions on where the research
for the stock assessments occur, who does the assessments and research,
what data goes into the assessments, and whether the assessments
considered the Atlantic Large Whale Take Reduction Plan regulations.
Response: The 2007 Southeast Data, Assessment, and Review (SEDAR)
SCS stock assessment was organized around three workshops. All
workshops are open to the public to ensure the assessment process is
transparent. The first is a Data Workshop, during which fisheries
monitoring, life history data, catch data and indices of abundance from
both fishery independent and fishery dependent sources are reviewed and
compiled. The report of the Data Workshop provides all sources of data
and research that was conducted and included in the stock assessment.
The data reviewed at this workshop includes fishery dependent data
(e.g., fishermen, dealer and observer reports), fishery independent
data (e.g., scientific surveys), and scientific data regarding the
biology of the species. Participants of the Data Workshop reviewed over
20 individual catch indices along with other data regarding catches and
biological information. Current and historical regulations such as the
Atlantic Large Whale Take Reduction Plan regulations and the Atlantic
HMS regulations are summarized for consideration by the participants in
the stock assessment. The scientists realize that management can affect
fisheries monitoring, and data collection and work to account for these
impacts when finalizing the data to be used in the assessment models.
The explanation of the process for conducting the stock assessment is
provided in Chapter 3 of the FEIS.
Comment 3: Fishermen are not fishing for sharks, including
blacknose sharks, anymore since it is not profitable. NMFS could be
misinterpreting this decline in effort as population declines. Shark
catches are just incidental catches and occur only in the Tortugas.
Response: NMFS recognizes that effort has decreased in the shark
fisheries in terms of the number of boats and in the number of sets,
but notes that there are several fishermen in the Atlantic, GOM and
Caribbean who still fish for sharks in both directed and incidental
manners. In order to account for this decreased effort, NMFS uses a
weighted average of effort and landings when conducting data analysis.
This provides a better understanding of the catch-per-unit effort of
the active vessels in the fishery. Furthermore, the SEDAR stock
assessment process uses fishery-independent data in the analysis. This
type of data is generally immune to, and helps correct for, changes in
fishing effort.
Comment 4: NMFS received several comments stating that the SEDAR 13
2007 SCS stock assessment is not the ``best available science.''
Commenters noted concerns over certain data issues, the use of trawl
data before and after TEDs were required, modeling assumptions, and
management choices described in the stock assessment. One commenter
stated that while he has advocated closing the shark gillnet fishery,
he is concerned that NMFS is using suspect data to justify what would
otherwise be a good outcome. Other commenters noted that shark stock
assessments for various species tend to move the species assessed from
overfished to healthy and then from healthy to overfished frequently.
Many commenters felt that NMFS should wait for the new stock assessment
and should not implement new quotas or other regulatory changes for
blacknose sharks based on the 2007 assessment.
Response: NMFS used the best available science and a rigorous SEDAR
stock assessment process to make the determination that blacknose
sharks are overfished with overfishing occurring. The independent
review panel determined that the data used in the SCS stock assessment
were considered the best available at the time. They also determined
that appropriate standard assessment methods based on general
production models and on age-structured modeling were used to derive
management benchmarks given the data available. Therefore, NMFS
believes that the 2007 SCS stock assessment represents the best
available science and is not considering delaying implementation of
management measures until the next stock assessment is completed. Under
Section 304(e) of the Magnuson-Stevens Act, as implemented by the NS1
Guidelines, if a stock is overfished, NMFS is required to ``take
remedial action by preparing an FMP, FMP amendment, or proposed
regulation * * * to rebuild the stock or stock complex to the MSY level
within an appropriate time frame'' (50 CFR 600.310(e)(3)(ii)).
Additionally, ``in cases where a stock or stock complex is
overfished, [the] action must specify a time period for rebuilding the
stock or stock complex that satisfies the requirements of section
304(e)(4)(A) of the Magnuson-Stevens Act.'' Therefore, consistent with
the results of the 2007 SCS stock assessment results, the 2006
Consolidated HMS FMP, the Magnuson-Stevens Act, and the NS1 Guidelines,
NMFS is implementing final management measures to end overfishing and
rebuild blacknose sharks, while providing an opportunity for the
sustainable harvest of the other sharks in the SCS complex. The
discussion of the SEDAR stock assessment process is included in Chapter
3 of the FEIS. NMFS believes that the assessment remains the best
scientific data available at this time and the agency is required by
National Standard 2 to utilize this information.
Comment 5: The stock assessment should not have combined the two
blacknose shark stocks found in the Gulf of Mexico region and the
Atlantic coast region. The problem arises with the differences caused
by a lack of migration movement between regions and the annual breeding
cycle of the Gulf of Mexico stock coupled with the biennial breeding
cycle of the Atlantic stock of mature female blacknose sharks. NMFS
scientists should model them as two separate stocks and not one.
Additionally, because of differences in life history parameters,
blacknose sharks in the western North Atlantic should be managed
separately from those in the Gulf of Mexico.
Response: In the 2007 SCS stock assessment, the assessment
scientists considered the issue and determined that blacknose sharks
should be assessed as one stock. The scientists noted that there was
conflicting genetic data regarding the existence of two separate
stocks, and the potential differences in the reproductive cycle for
South Atlantic and Gulf of Mexico populations. As a result, the
assessment used an average reproductive cycle of 1.5 years (the average
between reproductive cycles of one year in the Gulf of Mexico and two
years in the South Atlantic region). Also, reproductive scenarios were
conducted during the stock assessment to determine the effect of
different reproductive cycles on the stock status. Under both
reproductive scenarios, the overall stock status of blacknose sharks
did not change. Thus, the reviewers and assessment scientists agreed
that the base case scenario of a 1.5-year reproductive cycle was
appropriate for the assessment. Because it was determined that
blacknose sharks are one stock, NMFS plans on implementing regulations
to rebuild the blacknose shark stock for the South
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Atlantic and Gulf of Mexico together. The discussion of the SEDAR stock
assessment process is included in Chapter 3 of the FEIS and adequately
addressed this issue. NMFS believes that the assessment remains the
best scientific data available at this time and the agency is required
by National Standard 2 to utilize this information. NMFS has determined
that the existing analysis is adequate. As such, changes were not made
in the FEIS or the final rule in response to this comment.
Comment 6: Commenters had questions on why the SCS stock assessment
only included data up to 2005 and on the catch rate data from the trawl
survey over the last 30 years.
Response: The data used in the 2007 SCS stock assessment includes
data up to 2005, which was the most current year of data available at
the time the SEDAR Data Workshop was held in February of 2007. Full
descriptions of the data used in the 2007 blacknose stock assessment to
estimate blacknose bycatch in the GOM are in SEDAR13-DW-31 and SEDAR13-
DW-32. Both papers are available on the SEDAR Web site at http://www.sefsc.noaa.gov/sedar/Sedar_Documents.jsp?WorkshopNum=13&FolderType=Data. As outlined in the Final
SEDAR 13 SCS Report, the blacknose shark bycatch in the South Atlantic
was calculated as a proportion of the Gulf of Mexico bycatch. As for
the data from the Southeast Area Monitoring and Assessment Program
(SEAMAP), six ``time series'' were used to estimate blacknose shark
bycatch in the shrimp trawl fisheries. These were the fall time series
Fall Groundfish (FG) 1972-1986, First Fall (FF) 1987, Fall SEAMAP (FS)
1988-2006; and the summer time series Summer SEAMAP (SS) 1987-2006,
Early SEAMAP (ES) 1982-1986, and Texas Closure (TC) 1981. The SEAMAP
surveys did not utilize TEDs. However, shrimp trawl observer data from
1972-2005 also were used to estimate blacknose bycatch in the shrimp
trawl fisheries and shrimp trawl effort data for the Gulf of Mexico and
the South Atlantic from 1972-2005 were also used in the SEDAR 13
assessment. The discussion of the SEDAR stock assessment process is
included in Chapter 3 of the FEIS. It discloses the data sources that
existed at the time of the stock assessment. NMFS believes that the
assessment and the data upon which it relied remains the best
scientific data available at this time. The agency is required by
National Standard 2 to utilize this information. NMFS has determined
that the existing data and analysis are adequate. Therefore, no changes
were made in the FEIS or final rule in response to this comment.
Comment 7: Will the next blacknose shark assessment be a benchmark
or update? The protocol of the shrimp observer program seems to be
reporting just shark groups, not species specific reporting. NMFS
should follow up on this through the observer program.
Response: Since the 2007 stock assessment, NMFS and industry
scientists have been developing different models for analyzing the
shrimp trawl data. Because the new models, which currently have not
been peer reviewed, would be a change in methodology from the 2007
stock assessment, the next blacknose shark assessment will be a
benchmark assessment. The Data Workshop for this assessment, which will
also assess sandbar and dusky sharks, will take place in summer 2010.
NMFS is currently working with the shrimp observer program to increase
species specific shark data reporting.
Comment 8: NMFS received comments regarding the survival of
blacknose sharks that stated that blacknose sharks are alive at the
boat and will survive if released. NMFS also received comments that
disputed the reduction of blacknose catches.
Response: A review of the data from the 2005-2008 Shark Gillnet
Observer Database, which reported the number of sharks caught in the
gillnet fishery during observed trips, detailed the disposition of the
sharks caught in gillnets. From this data, the number of sharks that
were landed and kept, landed alive and released, and landed dead and
discarded was determined. Based on this data, NMFS has changed the
mortality rate for discards to 80 percent instead of 100 percent that
was used in the DEIS. Although catch rates may remain unchanged, a
stock may show signs of stress through changes in average size towards
smaller individuals, or to increasingly larger numbers of younger
individuals in the stock. While there has not been a reduction in
blacknose shark commercial landings, based on the most current stock
assessment, the blacknose shark stock has been determined to be
overfished, with overfishing occurring. For this reason, NMFS has
decided to implement management measures to rebuild this overfished
stock and to end overfishing. Based on this comment, NMFS modified the
FEIS by adjusting the mortality rates based on observer coverage and
made conforming changes in the Final Amendment 3 and this final rule.
2. Shrimp Trawls and Working With the Regional Fishery Management
Councils
Comment 9: NMFS received many comments regarding the blacknose
shark mortality related to the Gulf of Mexico shrimp trawl fisheries.
The State of Louisiana agrees that the majority of the reported
blacknose shark mortality comes as bycatch from the Gulf of Mexico
shrimp trawl fishery, but notes that the effort in this fishery has
been reduced from 2005 due to hurricanes Katrina and Rita and fuel
prices. The GMFMC and others also commented that the Gulf of Mexico
shrimp trawl bycatch portion of blacknose shark mortality (45 percent)
seems high. Specifically, these commenters note that shrimp fishing
effort in 2005 in areas where red snapper are abundant was reduced by
50 to 60 percent from 2001-2003 periods and was reduced by
approximately 65 percent in 2006. It was further reduced in 2007 and
2008 by approximately 75 percent. The number of vessels participating
in the offshore shrimp fishery is expected to continue declining until
at least 2012, and has been further reduced by the impacts of
hurricanes Katrina and Rita. With time/area closures, the shrimp trawl
effort is unlikely to rebuild to its prior historical levels. As a
result, basing blacknose shark mortality rates by gear type using the
years 1999-2005 may produce anomalous results that are not
representative of long term trends. Those estimates should be
recalculated using more recent years or a longer time series of years.
All of these comments stated that NMFS should update their mortality
figures utilizing current offshore Gulf of Mexico shrimp trawl effort
data.
Response: NMFS would like to thank the State of Louisiana and the
GMFMC for their comments. NMFS is working with the GMFMC, and agrees
that blacknose shark mortalities have dropped significantly due to
decreased effort in the shrimp trawl fishery in the Gulf of Mexico.
NMFS also recognizes that the impacts from hurricanes, and other
events, in recent years may have affected effort or landings data.
Effort in the Gulf of Mexico shrimp fishery has decreased 64 percent
from the average effort across the entire Gulf of Mexico in 1999-2005
compared to effort in 2008 (James Nance, NMFS SEFSC pers. comm.).
Although an analysis of the spatial/temporal distribution of this
reduction relative to the distribution of blacknose shark bycatch has
not been conducted, a starting assumption could be that this equates to
a commensurate 64 percent reduction in bycatch.
[[Page 30489]]
Modeling efforts are ongoing that incorporate a TED effect in the
bycatch estimation model. Preliminary analyses utilizing the new
modeling technique indicate that bycatch may have been reduced by
approximately 50 percent in 1999-2005. When bycatch reductions from the
effort reduction of 64 percent are combined with an approximately 50-
percent bycatch reduction anticipated from the TED effect, a
preliminary estimate of the overall reduction is approximately 82
percent from 1999-2005 levels. Full results will be provided once the
study is complete. The uncertainty is not fully defined in these
preliminary bycatch estimates, and there may be spatio-temporal
differences in bycatch trends. More data and further analyses are
required to determine any uncertainty in the estimates and to re-
evaluate the status of the blacknose shark stock. The next assessment
is scheduled for 2010, and NMFS will re-visit shrimp bycatch and shrimp
trawl effort at that time. Since the modeling data, analyses and
conclusions are preliminary and have not been peer reviewed, they were
not available for use in the FEIS or in this final rule. NMFS believes
that the 2007 SCS assessment and the data upon which it relied with
respect to bycatch in the shrimp trawl fisheries remains the best
scientific data available at this time. The agency is required by
National Standard 2 to utilize this information. NMFS has determined
that the existing data and analysis are adequate. Therefore, no changes
were made in the FEIS or this final rule in response to this comment.
Comment 10: NMFS received comments regarding the Georgia Bulldog
trawl video and the ability of blacknose sharks to go through TEDs.
Several commenters expressed skepticism that blacknose sharks could fit
through the four inch bar spacing of a TED. Other commenters asked
about the species of shark in the video and whether they went through
the TED.
Response: The SEFSC's video footage of TEDs in shrimp trawls shows
sharks and protected resources (e.g., sea turtles) being excluded from
shrimp trawls using TEDs with less than 4-inch bar spacing. The video
footage was taken from a shrimp trawler, the R/V Georgia Bulldog, off
the coast of Georgia, within 10 miles of shore, in water depths less
than 40 feet. The footage shows that some small sharks (blacknose,
bonnethead, and Atlantic sharpnose), as well as various other finfish,
can pass through the TEDs and into the codend of the trawl; NMFS has
not conducted any analysis on the bycatch at this time (e.g., bycatch
was not identified to species, length measurements were not taken). The
video is not appropriate for detailed analysis of the TED impact on
catch and bycatch, but rather serves as a starting point because it
shows that sharks do make it through this bycatch reduction device
technology. The discussion and analysis of SCS bycatch in the shrimp
trawl fisheries used in the 2007 SCS stock assessment remains the best
scientific data available at this time. The agency is required by
National Standard 2 to utilize this information. NMFS has determined
that the existing data and analysis are adequate. Therefore, no changes
were made in the FEIS or this final rule in response to this comment.
Comment 11: NMFS received numerous comments regarding the bycatch
of blacknose sharks in shrimp trawl fisheries. Commenters suggested
that NMFS should study potential ways to reduce bycatch of blacknose
sharks and other species in trawl fisheries, including gear
modifications, gear restrictions, or time-area closures and implement
measures to reduce this bycatch. In addition, NMFS received comments
that NMFS should work together with Regional Fishery Management
Councils to reduce the bycatch of blacknose sharks in the shrimp trawl
fisheries and to ensure ACLs and AMs are set for fisheries that catch
blacknose sharks in order to limit the significant mortality in the
shrimp fisheries.
Response: NMFS is working with the Gulf of Mexico and South
Atlantic Fishery Management Councils to establish bycatch reduction
methods, as appropriate, to reduce blacknose shark mortality in the
shrimp trawl fisheries. In addition, NMFS SEFSC has been working with
industry scientists to re-evaluate the shrimp bycatch models used in
the 2007 SCS stock assessments. In particular, they have been
evaluating the effect of TEDs on SCS bycatch in shrimp trawls. NMFS
continues to monitor and evaluate bycatch in HMS fisheries through the
pelagic longline (PLL), bottom longline (BLL), and gillnet observer
programs, and evaluation of management measures such as closed area
trip limits, and gear modifications. Because the Gulf of Mexico and
South Atlantic Fishery Management Councils manage the shrimp trawl
fisheries, NMFS is only implementing measures in this amendment to
reduce the landings and discards in Atlantic shark fisheries.
Regulatory changes to the shrimp trawl fisheries in the South Atlantic
and Gulf of Mexico regions would be done through the Council process in
those regions. This amendment includes a mechanism to specify ACLs for
stock complexes, including the SCS complex, and certain specific shark
species as well as identify AMs, consistent with the Magnuson-Stevens
Act requirements to establish a mechanism for specifying ACLs and AMs
at a level that will prevent overfishing. The regulations necessary to
adjust ACLs as needed and to apply AMs are currently in place. The DEIS
explained NMFS' approach to reducing bycatch by working with the
Regional Fisheries Management Councils responsible for those fisheries.
In addition, NMFS has committed to ongoing monitoring and future
evaluation of this issue. That discussion is included in Chapter 1 of
the FEIS.
Comment 12: Some commenters noted that the shrimp industry has
mandated TEDs and other bycatch reduction devices, and ask if there are
other shrimp trawl bycatch reduction measures that can be implemented.
Response: NMFS agrees that the mandating of TEDs and other bycatch
reduction devices have aided in the reduction of blacknose shark
catches and other protected resources. Currently, NMFS is working with
the GMFMC, South Atlantic Fishermen Management Council (SAFMC), and the
shrimp industry to look at other ways to decrease the shark bycatch in
the shrimp fishery. For the reasons stated in response to comment 11,
NMFS did make changes in the FEIS based on this comment.
3. Quota Alternatives
Comment 13: NMFS should implement alternative A1, which calls for
no action to the SCS commercial quota. This alternative is appropriate
given the concerns on the science for blacknose and the range of
alternatives. The Atlantic Large Whale Take Reduction Plan (ALWTRP)
regulations eliminate gillnet fishing for 5 months a year (November to
April), which should be positive for blacknose sharks. When the fishery
opens in April and May, the blacknose sharks are within State waters,
therefore, NMFS should not change anything and stay with the 5 month
ALWTRP closure.
Response: The results of the 2007 SCS stock assessment determined
that, despite the ALWTRP, blacknose sharks are overfished and
overfishing is occurring. The assessment recommended a blacknose shark
specific TAC and a corresponding rebuilding timeframe. One objective of
this rulemaking is to ensure that fishing mortality levels for
blacknose sharks are maintained at or below levels that would result in
a 70 percent probability of rebuilding in the timeframe
[[Page 30490]]
recommended by the assessment. Under the Magnuson-Stevens Act, as
implemented by the NS1 Guidelines, if a stock is overfished, NMFS, in
addition to taking action to propose and implement measures to end
overfishing, is required to ``take remedial action by preparing an FMP,
FMP amendment, or proposed regulation * * * to rebuild the stock or
stock complex to the MSY level within an appropriate time frame'' (50
CFR 600.310(e)(3)(ii)). NMFS chose not to select the status quo
alternative as the preferred alternative because it does not end
overfishing or implement a rebuilding plan for overfished stocks as
required by the Magnuson-Stevens Act and NS1 Guidelines. Based on
further analysis of new data and public comment, NMFS selected an SCS
quota alternative in the FEIS that was different from the preferred SCS
quota alternative in the DEIS. Specifically, NMFS selected alternative
A6 in the FEIS which has a non-blacknose SCS quota of 221.6 mt dw and a
blacknose shark quota of 19.9 mt dw because it implements quotas
necessary to rebuild and end overfishing of blacknose sharks. The final
action also allows the gillnet fishery to continue, thus mitigating
some of the economic impacts that are expected and necessary in order
to reduce fishing mortality as prescribed by the recent stock
assessment. Thus, the final SCS quota and commercial gear alternatives
strike a balance between positive ecological impacts that must be
achieved to rebuild and end overfishing of blacknose sharks shark
stocks while minimizing the negative economic impacts that would occur
as a result of these measures.
Comment 14: NMFS received a number of comments indicating that
gillnet fishermen can adapt their fishing techniques and gear to avoid
catching blacknose sharks. Specific comments included: Did NMFS
consider that fishermen can adapt and select on certain species?;
gillnet fishermen can adapt to avoid catching blacknose sharks similar
to how they reduced turtle and marine mammal bycatch; strikenet gear is
a clean gear and can be modified to avoid blacknose sharks; it is
possible to design gillnet gear to eliminate blacknose shark catches;
and NMFS should set aside Amendment 3 or go with status quo until more
gear research can be conducted.
Response: Due to this comment, NMFS reviewed the 2005-2008 Shark
Gillnet Observer Data. Based on this analysis, NMFS agrees that
fishermen may be able to adapt and specifically target some species
while avoiding others. The percentage of blacknose sharks in the catch
from gillnet trips that were targeting other species were: 2.6 Percent
from 5 trips that targeted blacktip sharks, 1.4 percent from 17 trips
that targeted Atlantic sharpnose sharks, 8.3 percent from 6 trips that
targeted bonnethead sharks, and 3.9 percent from 118 unspecified shark
trips. NMFS used this information to re-analyze the SCS quota and
commercial gear alternatives. Based on this analysis and public
comment, NMFS selected alternative A6, which is a new alternative and
would have a non-blacknose SCS quota of 221.6 mt dw and a blacknose
shark quota of 19.9 mt dw. In addition, NMFS chose not to prohibit
gillnet gear as an authorized gear type and selected the commercial
gear alternative to B1, the No Action alternative. If in subsequent
analysis the data shows that shark fishermen have been able to avoid
catching blacknose sharks, NMFS will re-evaluate the landings data, and
increase the quota for non-blacknose SCS, blacknose sharks, or both.
However, if a re-evaluation of the data shows that fishermen have not
been able to minimize blacknose shark mortalities, then NMFS reserves
the right to decrease either, or both, quotas. In response to this
comment, NMFS modified the FEIS to include the identification and
selection of preferred alternatives that would establish blacknose and
non-blacknose SCS quotas and continue to allow the use of gillnets as
authorized gear for harvesting all Atlantic sharks. The changes to the
final rule are discussed in more detail below.
Comment 15: NMFS received numerous comments on the proposed non-
blacknose SCS quota. Several commenters were concerned that the non-
blacknose SCS quota was too low particularly since these species stocks
are healthy and are a viable alternative for fishermen. The low quota
could result in high regulatory discards. The State of North Carolina
noted that if NMFS reduced the non-blacknose SCS quota, North Carolina
fishermen will be disproportionately impacted by this regulation by
removing fair and equitable distribution of SCS quota and implementing
measures contrary to measures in State waters. The State of South
Carolina noted that the proposed quota of 56.9 mt dw for small coastal
sharks will result in a 76 percent reduction in the landings of
finetooth, Atlantic sharpnose and bonnethead sharks in the shark
fishery. As such, this reduction in the quota for these three species
would seem unwarranted at this time. Additionally, this proposed
reduction will have significant repercussions among South Carolina's
permitted commercial fisherman who landed 10 mt dw of these three
species in 2008 or nearly 17 percent of the proposed quota for the
Atlantic, Gulf of Mexico and Caribbean fisheries, combined. In
addition, the small quota is likely to be reached and the fishery
closed before South Carolina fishermen have an opportunity to land
their traditional catch. For these reasons, NMFS should implement
alternative A2 in combination with the gillnet prohibition, alternative
B3.
Response: NMFS recognizes that the status of non-blacknose SCS is
not overfished and not experiencing overfishing. In the DEIS, the
preferred alternative, A4, would have set the commercial quota for non-
blacknose SCS sharks at 56.9 mt dw, and the blacknose shark quota at
14.9 mt dw. Due to recent data updates, analysis, and public comments,
NMFS has changed the preferred alternative from A4 in the DEIS to A6 in
the FEIS, which would set the commercial quota for non-blacknose SCS at
221.6 mt dw and the blacknose shark quota at 19.9 mt dw. The final non-
blacknose SCS quota sets the commercial quota equal to the average non-
blacknose sharks SCS landings from 2004 through 2008 and therefore
would not have economic impacts beyond the status quo. By looking at
the recent Gillnet Observer Data from 2005-2008, NMFS agrees that it
appears that commercial shark fishermen can target non-blacknose sharks
and avoid catching blacknose sharks. If subsequent reviews of the
management measures implemented under alternative A6 indicate that
commercial shark fishermen are able to minimize their catch of
blacknose sharks, NMFS could increase the non-blacknose SCS quota to
allow for greater access to these species. Also, any underharvest of
the non-blacknose SCS quota from the previous year could be added to
the quota the following year, because all of the shark species in this
complex (Atlantic sharpnose, finetooth and bonnethead) are not
overfished and overfishing is not occurring. NMFS recognizes that there
may be a high mortality rate for the blacknose sharks released from the
various gears used in the SCS fishery. NMFS is attempting to limit the
discard mortalities of blacknose sharks in the SCS fishery associated
with the proposed SCS quota, by allowing the commercial shark fishermen
to retain the number of sharks equal to the average landings of
blacknose sharks from all gears based on the 2004-2008 Coastal
Fisheries Logbook and Shark Gillnet Observer Data. In response to this
comment,
[[Page 30491]]
NMFS made the foregoing changes to the FEIS and this final rule
including the selection of an alternative to establish a non-blacknose
SCS quota at 221.6 mt dw and allow continued use of gillnet as
authorized gear for harvesting SCS. Changes to the final rule are
discussed in more detail below.
Comment 16: NMFS received several comments specific to the quota
levels for blacknose sharks. Comments suggest that NMFS should prohibit
the retention of blacknose sharks by placing the species on the
prohibited list. Other commenters suggested that the blacknose shark
quota needs to be high enough to allow for the retention of incidental
catch. The State of Georgia supports the quotas in alternative A4 with
gillnet closure in alternative B3 as it will significantly reduce the
impacts of regulatory discards of blacknose sharks, which would occur
if the quota for blacknose sharks is reached before the non-blacknose
SCS quota.
Response: NMFS agrees that the blacknose shark quota needs to be
large enough for fishermen to keep blacknose sharks that are caught
incidentally. As detailed in Chapter 4 and Appendix A, NMFS has changed
the preferred alternative from A4 in the DEIS to A6 in the FEIS. Under
alternative A6, the non-blacknose SCS (221.6 mt dw) and blacknose shark
(19.9 mt dw) quotas would allow for incidental catch of blacknose
sharks. Also, under alternative A6, both the blacknose and the non-
blacknose fisheries would close when either the quota was reached or
the catch was projected to reach 80 percent of the quota. This offers
an incentive to avoid blacknose sharks and target non-blacknose SCS to
ensure that the non-blacknose SCS fishery does not close with quota
still available. NMFS considered closing the entire SCS fishery
(alternative A5) however, the stock assessment did not warrant such
action. Under the rebuilding plan, a limited number of blacknose sharks
can be retained while still meeting rebuilding goals. Furthermore, once
a species is placed on the prohibited list, fishery-dependent data on
the species will cease to be reported and cannot be used in future
stock assessments or management measure determinations. In response to
this comment, NMFS made the foregoing changes to the FEIS and this
final rule including the selection of an alternative to establish a
blacknose SCS quota at 19.9 mt dw and allow continued use of gillnet as
authorized gear for harvesting SCS. The DEIS already included an
alternative to close the SCS fishery that would have prohibited the
retention of blacknose sharks. Therefore, an additional alternative to
list blacknose as a prohibited species was not added to the FEIS.
Changes to the final rule as a result of this comment are discussed in
more detail below.
Comment 17: NMFS received several comments regarding the overlap of
the SCS gillnet fishery with other gillnet fisheries in the southeast
region. Comments included: The NMFS proposal will force effort into
other fisheries (e.g., kingfish fishery) and this will fracture those
other fisheries; NMFS needs to know the number of blacknose shark
catches in the mackerel fishery and how that relates to the 22-percent
mortality of blacknose shark by gillnets; if NMFS is taking the bulk of
effort away, why not let mackerel fishermen keep blacknose sharks; NMFS
should eliminate blacknose sharks landings and allow mackerel fishermen
to land other SCS; and NMFS should collect data on discards in the
mackerel fishery.
Response: NMFS recognizes that fishermen will adapt in different
ways to new regulations placed on a fishery, which may include
increasing their effort in other fisheries. NMFS plans to continue to
collect the best available data from several sources including data on
landings, discards, and bycatch. As this new data becomes available,
regulation changes could be made that would provide fishermen access to
resources that are ecologically and economically viable. Based on the
most recent data, which indicates that gillnet fishermen may be able to
avoid certain species, NMFS changed its preferred alternative from B3
in the DEIS, which would have eliminated gillnet gear as an authorized
gear from South Carolina south, to B1 in the FEIS, the No Action
alternative, which retains gillnet as an authorized gear in the
Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Also, under the
selected alternative, A6, incidental catches of blacknose sharks will
continue to be allowed. In response to this comment, NMFS made changes
to the FEIS including the development of a preferred alternative that
establishes a blacknose quota at 19.9 mt dw and a non-blacknose SCS
quota at 221.6 mt dw. The DEIS already considered an alternative to
close the entire SCS fishery which would essentially prohibit retention
of blacknose. Therefore, an additional alternative to list blacknose as
a prohibited species was not added to the FEIS. The discussion of
displacing effort from the shark fishery into other gillnet fisheries
was included in the FEIS. NMFS made changes in preferred alternative
from the DEIS to the FEIS based on this and similar comments and made
conforming changes to this final rule. The changes to the final rule
are discussed below.
Comment 18: NMFS needs to move blacktip sharks to the SCS quota and
increase the quota for all SCS.
Response: NMFS is moving towards species-specific management,
including species-specific quota. However, for some species NMFS has
only limited data, which requires management to be based on species
within a complex of species. The 2007 SCS stock assessment assessed the
SCS complex as a whole as well as each species individually, and
recommended using species-specific results rather than the aggregated
SCS complex results. The assessment recommended a blacknose shark-
specific TAC and a corresponding rebuilding timeframe. Therefore, based
on these results, NMFS has removed blacknose sharks from the SCS quota
and set a separate commercial quota for this species. A species-
specific quota enables NMFS to closely monitor blacknose shark landings
and fishing effort according to the rebuilding plan. Blacktip sharks
are currently managed in the non-sandbar LCS complex implemented in
Amendment 2 to the Consolidated HMS FMP. Blacktip sharks are more
commonly caught with gear targeting LCS (i.e., BLL gear) rather than
gear used to target SCS (i.e., gillnet gear). In addition, the blacktip
shark stock assessment recommended that blacktip shark landings should
not change or increase from historical catch levels. Placing blacktip
sharks within the non-blacknose SCS quota could drastically reduce the
blacktip shark regional quota since the non-blacknose SCS shark quota
is being reduced in the preferred alternative from 454 mt dw (status
quo) to 221.6 mt dw (alternative A6 in the FEIS). Therefore, at this
time, NMFS is not placing blacktip sharks within the SCS complex. NMFS
has determined that the comment proposes an action that does not meet
the purpose and need set forth in the DEIS and FEIS and therefore did
not include it as an additional alternative for evaluation in the FEIS.
Comment 19: NMFS stated that they want to help the U.S. fleet catch
the entire tuna and swordfish quotas, so why is NMFS against SCS
fisherman landing the SCS quota as appears to be the case in preferred
alternative A4?
Response: In the DEIS, the preferred alternative A4, would have set
the non-blacknose quota at 56.9 mt dw and the blacknose shark species-
specific quota at 14.9 mt dw. Recent data, and the analysis of that
data, has led NMFS to change the preferred alternative from A4 in the
DEIS to A6 in the FEIS. With alternative A6, the preferred alternative
[[Page 30492]]
in the FEIS, selected, the non-blacknose SCS quota will be set at 221.6
mt dw, which is the average landings of non-blacknose SCS from 2004
through 2008. The blacknose shark species-specific quota will be set at
19.9 mt dw. These regulations are being implemented because the status
of the blacknose shark stock has been determined to be overfished, with
overfishing occurring. Also, any underharvest of the non-blacknose SCS
quota could be added to the following year's fishing quota, since the
stock status of finetooth, Atlantic sharpnose, and bonnethead sharks
have all been determined to be healthy. Also, under alternative A6,
both the blacknose and the non-blacknose fisheries would close when
either the quota was reached or the catch was projected to reach 80
percent of the quota. This offers an incentive to avoid blacknose
sharks and target non-blacknose SCS to ensure that the non-blacknose
SCS fishery does not close with quota still available. These measures
maximize the opportunity to harvest the healthy non-blacknose SCS while
rebuilding and preventing overfishing on the blacknose shark stock.
This comment did not target any specific section or issue analyzed in
the DEIS and a specific change in the FEIS was not made. As mentioned,
however, the preferred alternative for non-blacknose SCS quota in the
DEIS has been adjusted in the preferred alternative in the FEIS to
address this general concern. Conforming changes were made in this
final rule. These changes are discussed below.
Comment 20: NMFS should save the SCS fishery. NMFS took the 4,000
lb LCS trip limit away and are now taking away blacknose sharks. Are
there any proposals for buyouts for SCS fishermen?
Response: Currently, there are no proposals to buyout SCS
fishermen. Buyouts can occur via one of the three mechanisms,
including: Through an industry fee, via appropriations from the United
States Congress, and/or through funds provided from any State or other
public sources or private or non-profit organizations. A buyout plan is
not proposed in this amendment because the Agency is unable to
implement a buyout as a management option. Buyouts must be initiated
via one of the aforementioned mechanisms.
Comment 21: We believe the reductions in the commercial quota and
the elimination of the gillnet gear will have significant, positive
effects. Based on estimates taken before 2007, your analyses determined
that this fishery was responsible for 45 percent of the mortality on
blacknose sharks. The Gulf of Mexico shrimp effort was reduced by 74
percent from the average effort of 2001-2003. Because of this action,
the historic 46 percent take by the trawl fishery would have already
been reduced to about 12 percent of the total take. This reduction
should, in combination with reductions from quota and gear
alternatives, drive the estimates of total reductions in take by
numbers of blacknose shark to something in excess of 80 percent, a
value well above the target of 78 percent.
Response: NMFS is working with the GMFMC, and agrees that blacknose
shark mortalities in the shrimp trawl fishery have dropped
significantly due to decreased effort in the shrimp trawl fishery in
the Gulf of Mexico. Based on 2005-2008 Shark Gillnet Observer Data,
NMFS believes that gillnet fishermen may be able to effectively target
other SCS species while minimizing the mortality of blacknose sharks
and protected species. Because of this analysis, NMFS has changed their
preferred alternative from B3 in the DEIS, which would have eliminated
gillnet gear from South Carolina south, to B1 in the FEIS, the No
Action alternative, which would retain gillnets as an authorized
commercial gear type for sharks. Based on this same data, and because
of reductions in blacknose shark mortalities in the shrimp trawl
fishery, NMFS has also changed the preferred quota alternative from A4
in the DEIS to A6 in the FEIS, which would create a non-blacknose SCS
quota of 221.6 mt dw and a blacknose shark quota of 19.9 mt dw. Thus,
due to updated data, analyses, and public comment, NMFS modified the
FEIS quota and gear alternatives and made conforming changes to the
final Amendment 3 and this final rule. The changes are discussed below.
Comment 22: In the Gulf of Mexico, it might be possible to reduce
juvenile mortality of blacknose sharks by adopting for shark bottom
longlines, on a seasonal basis, the existing reef fish longline
boundary (20 fathoms east of Cape San Blas, Florida, 50 fathoms west of
Cape San Blas). If this eliminates too much of the traditional shark
fishing grounds to be acceptable, than perhaps the ``stressed area''
boundary, which varies from 10 to 30 fathoms, could be considered.
Response: NMFS considered closing waters inshore of 20 fathoms in
the Gulf of Mexico to shark bottom longline gear as a way to reduce
fishing pressure on neonate and juvenile blacknose sharks. The majority
of the recorded interactions with neonate and juvenile blacknose sharks
occur in waters inshore of 20 fathoms. Therefore, by closing waters
inshore of 20 fathoms, NMFS would relieve fishing pressure on neonate
and juvenile blacknose sharks. However, closing waters inshore of 20
fathoms could have a large, negative socioeconomic impact on the shark
BLL fishery in the Gulf of Mexico, as the majority of BLL sharks sets
observed from 1994-2007 occurred inshore of 20 fathoms. Given these
potentially large, social and economic negative impacts, and the
ability to rebuild blacknose sharks through other alternatives, NMFS
did not further analyze this alternative in the FEIS. Similarly, NMFS
considered closing the waters inshore of 50 fathoms in the Gulf of
Mexico to shark BLL fishing, however, because this closure would cover
more area and have larger socioeconomic impacts than a 20 fathom line
closure, this alternative was not further analyzed in the FEIS.
B. Commercial Gear Restrictions
Comment 1: NMFS received numerous comments supporting the proposed
alternative to ban gillnets in the shark fishery from South Carolina
south (alternative B3). The SAFMC and MAFMC both expressed support for
the proposal to ban shark gillnet gear. The State of Georgia supports
banning gillnet and states that removal of shark gillnet gear is long
overdue to reduce incidental take of sea turtles and marine mammals.
Other commenters stated that banning gillnet gear would protect
blacknose sharks, and reduce bycatch and protected resource
interactions.
Response: NMFS would like to thank the SAFMC, MAFMC, and the State
of Georgia for submitting comments in support of alternative B3. Based
on the 2005-2008 Shark Gillnet Observer Program data, and comments from
fishermen, NMFS believes that gillnet fishermen may be able to target
other SCS species and minimize the mortality of blacknose sharks. For
this reason, NMFS believes that banning gillnets as an authorized gear
type is unwarranted at this time. NMFS would prefer to allow gillnet
fishermen the opportunity to prove that they can target specific
species, and avoid others. Therefore, NMFS changed its preferred
alternative from B3 in the DEIS, which would have banned gillnets from
South Carolina south, to B1 in the FEIS, the No Action alternative,
which would retain all currently authorized gears in the shark fishery.
The current regulations for gillnet fishermen, which include two-hour
net checks and keeping nets attached to the boat, should continue to
help reduce the incidental bycatch of other species. The bycatch and
discards of blacknose sharks would be reduced by the implementation of
a smaller non-
[[Page 30493]]
blacknose SCS and blacknose shark quota. The gillnet fishery in the
southeast Atlantic Ocean is monitored by vessel monitoring systems
(VMS) and has sufficient observer coverage. The VMS and observer
coverage has helped protect endangered species like sea turtles and
right whales. NMFS believes that allowing gillnet gear as an authorized
gear for sharks is consistent with the 2008 Biological Opinion (BiOp)
for the Atlantic Shark fishery. The 2008 BiOp was completed for
Amendment 2 to the Consolidated HMS FMP which did not prohibit the use
of gillnet gear. Therefore the BiOp was based on the continued use of
gillnet gear in the Atlantic Shark fishery and concluded that the
Atlantic shark fishery is not likely to jeopardize the continued
existence of endangered green, leatherback, and Kemp's ridley sea
turtles; the endangered smalltooth sawfish; or the threatened
loggerhead sea turtle. Furthermore, the BiOp concluded that Amendment 2
was not likely to adversely affect any listed species of marine
mammals, invertebrates (i.e., listed species of coral) or other listed
species of fishes (i.e., Gulf sturgeon and Atlantic salmon) in the
action area. NMFS believes that the significant social and economic
impacts on the SCS commercial shark participants from prohibiting
gillnet gear are disproportionate to the ecological benefits especially
since the No Action alternative in combination with alternative A6
reduces blacknose shark mortality to levels consistent with the
rebuilding plan for this species.
Comment 2: The gear restriction on the shark gillnets from South
Carolina to the Gulf of Mexico and the severe quota reduction of SCS
will be detrimental to the critical scientific data that is needed to
properly manage this fishery.
Response: NMFS agrees that prohibiting shark gillnet gear would
affect the scientific data that is used to manage the SCS fishery.
Based on this and other public comments, as well as additional data
analysis using updated blacknose shark weight data, NMFS changed its
preferred alternative from B3 in the DEIS, which would have banned
gillnets from South Carolina south, to B1 in the FEIS, the No Action
alternative, which retains the current authorized gear types. NMFS
feels that the scientific data collected from programs like the Shark
Gillnet Observer Program provide an invaluable source of fishery
dependent information that can augment fisheries independent data
collected by NMFS scientists and help to inform fishery management
decisions.
Comment 3: Contrary to popular beliefs, gillnet gear is the most
selective way of fishing. Gillnet fishermen catch on average a 14.4 lb
dw sexually mature blacknose shark that have spawned at least once. The
2008 BiOp stated that shark gillnet fishermen do not catch as many
protected species as bottom longline fishermen. The Federal observer
data has shown that 97.3 percent of our catch consists of sharks and
98.1 percent of the sharks caught were the targeted species. This gear
is not having as big an impact on the stock because they are not
catching juveniles. NMFS should consider a gillnet endorsement, not a
preferred alternative that would close the fishery. In addition, the
State of South Carolina commented that, although the retention of
sharks taken by gillnets is already prohibited in their State waters,
NMFS should be aware that South Carolina has licensed and permitted
commercial fisherman who have historically fished for sharks with
gillnets in Federal waters. These fishermen will certainly be impacted
and possibly displaced from this fishery through adoption of this
proposed action.
Response: In response to this and similar comments NMFS made the
following changes between the DEIS and FEIS. In the DEIS, NMFS
preferred alternative B3, which would have prohibited gillnets from
South Carolina south, but due to recent data and new data analysis and
public input, NMFS changed its preferred alternative in the FEIS to B1,
the No Action alternative, which would retain gillnets as an authorized
gear in the shark fishery. Based on recent data from the SEFSC, NMFS
changed the average weight for blacknose sharks caught in gillnets from
14.4 lbs to 18.7 lbs in the FEIS. Also, NMFS re-analyzed the data from
the 2005-2008 gillnet observer data. Those analyses showed that gillnet
fishermen may be able to target other SCS species, and minimize the
mortality of blacknose sharks. NMFS used this information to re-analyze
the SCS quota alternatives in the FEIS. This resulted in NMFS changing
the preferred alternative from B3 in the DEIS, which would have
eliminated gillnet as an authorized gear in the shark fishery from
South Carolina south, to B1 in the FEIS, the No Action alternative,
which will retain all currently authorized gears for SCS, including
gillnets. In addition, NMFS is still working with the GMFMC to
determine the impacts that TEDs have on excluding blacknose sharks from
the shrimp trawl nets. NMFS believes that the new preferred
alternatives would not displace the South Carolina gillnet fishermen in
Federal waters.
Comment 4: There are large areas and times when gillnet fishermen
are not allowed to fish. There is already a large gillnet closure area
due to State water closures and the ALWTRP regulations. NMFS should
work with the few shark gillnet fishermen left to address issues in the
few areas where gillnets are being used now. There are not many shark
gillnet fishermen left in the industry, and everyone is a seasoned
fishermen with over 20 years of experience.
Response: NMFS agrees that gillnet gear is prohibited in many
places, such as the State waters of Florida and Georgia and Southeast
Right Whale Calving Area. Also, NMFS agrees that there are not many
gillnet fishermen who target sharks. There are still gillnet fishermen
that catch sharks while targeting other species and some of those
fishermen could target sharks. NMFS has gathered all of the comments
from gillnet fishermen and re-evaluated the data on the average size of
blacknose sharks caught in the gillnet fishery in the FEIS. Based on
this analysis, NMFS changed the average weight for blacknose sharks
caught in gillnets from 14.4 lbs in the DEIS to 18.7 lbs in the FEIS.
Also, the data from the 2005-2008 Shark Gillnet Observer Program seems
to indicate that gillnet fishermen may be able to target other SCS
species, and minimize the mortality of blacknose sharks. NMFS used this
information to re-analyze the alternatives regarding quotas in the
FEIS. The new preferred alternative in the FEIS, A6, sets a non-
blacknose SCS quota of 221.6 mt dw and a blacknose shark quota of 19.9
mt dw. In addition, NMFS changed their preferred alternative from B3 in
the DEIS, which would have prohibited gillnets from South Carolina
south, to alternative B1, the No Action alternative in the FEIS, which
would retain gillnets as an authorized gear in the shark fishery.
Comment 5: If a prohibition on gillnet gear is implemented, what is
going to stop NMFS from removing all gillnet gear in other fisheries,
such as the mackerel fishery, in the future?
Response: In the DEIS, NMFS preferred alternative B3, which would
have prohibited gillnets from South Carolina south, but due to recent
data and new data analysis and public input, NMFS changed its preferred
alternative in the FEIS to B1, the No Action alternative, which would
retain gillnets as an authorized gear in the shark fishery. In
addition, this amendment only deals with management measures in the
Atlantic shark fishery and any measures specific to the mackerel
[[Page 30494]]
fishery would be implemented through the Regional Fishery Management
Council that has authority for this species. This comment does not call
for change to any specific section of the DEIS. Therefore, no specific
change was made in the FEIS or this final rule in response to this
comment.
Comment 6: NMFS received several comments on the use of VMS in the
gillnet fishery. One commenter asked if gillnet fishermen would be
compensated for VMS if gillnet gear is banned. Another commenter noted
that gillnet boats should not have to carry VMS since it is an invasion
of privacy and a waste of money to the fisherman and NMFS.
Additionally, gillnet fishermen already have sufficient observer
coverage. Another commenter noted that NMFS must place significant
weight on protecting critically endangered right whales from
entanglement and should therefore maintain the VMS requirement for all
shark gillnet vessels.
Response: As described in the comments above, NMFS has identified
in the FEIS alternative B1, the No Action Alternative, as the preferred
alternative, which would retain gillnets as an authorized gear type for
the Atlantic shark fisheries. The requirements for VMS restrictions
would continue under the current regulations. VMS is vital to fisheries
management, enforcement, and safety. VMS is an important tool used to
monitor fishing activities in time/area closures and during the North
Atlantic right whale calving season to protect this endangered species.
NMFS has several other VMS requirements in place for HMS vessels
including BLL vessels in the vicinity of the mid-Atlantic shark closed
area and all vessels with PLL gear on board year-round. Removing VMS
requirements is beyond the scope of the proposed action and does not
further the stated purpose and need. NMFS, therefore, did not include
any change in VMS requirements from current regulations in the FEIS or
this final rule.
Comment 7: The State of South Carolina agrees with the proposed
boundary for the prohibition for shark gillnet gear. In 2008,
commercial fisherman in South Carolina landed 20,000 lbs ww of smooth
dogfish primarily from bottom long lines while 7,384 lbs ww of
blacknose sharks were landed, with only 372 lbs ww of these reported
from gillnets. Most catches of smooth dogfish in South Carolina occur
in the winter when interactions with whales should be less likely.
Response: NMFS would like to thank the State of South Carolina for
submitting information on the commercial fishing landings in their
State waters. After reviewing the data from the 2005-2008 Shark Gillnet
Observer Program, which seems to indicate that gillnet fishermen may be
able to target certain species and avoid others, NMFS has decided to
change the preferred alternative from B3 in the DEIS, which would have
banned gillnets from South Carolina south, to the No Action
alternative, B1 in the FEIS, which would continue to allow all of the
current authorized commercial fishing gears for sharks, including
gillnets. Smooth dogfish would be allowed to be landed with all current
authorized gear types. The FEIS carries forward as a reasonable
alternative available for selection by the decision maker, the ban on
gillnet as an authorized gear in alternative B3. Neither the FEIS or
this final rule changed as a result of this comment. However, as noted
above, NMFS changed the selected alternative in the FEIS and made
conforming changes in Amendment 3 and this final rule as a result of
other comments on this issue.
Comment 8: NMFS received several comments regarding the overlap of
the SCS gillnet fishery with other gillnet fisheries in the southeast
region. Comments included: The NMFS proposal will force effort into
other gillnet fisheries (e.g., kingfish fishery); NMFS needs to know
the number of blacknose shark catches in the mackerel fishery and how
that relates to the 22 percent mortality of blacknose shark by
gillnets; if NMFS is taking the bulk of gillnet effort away, why not
let mackerel fishermen keep blacknose sharks; NMFS should eliminate
blacknose shark landings and allow mackerel fishermen to land other
SCS; and, NMFS should collect data on discards in the mackerel fishery.
Response: NMFS recognizes that fishermen may adapt in different
ways to new regulations placed on a fishery, which may include
increasing their effort in other fisheries. NMFS continues to collect
fishery-dependent and fishery-independent data from all Federally
managed fisheries including data on landings, discards, and bycatch.
While the measures implemented in this amendment only pertain to the
Atlantic shark fisheries, NMFS considers cumulative impacts on other
fisheries and fishery participants when choosing preferred
alternatives. Based on the most recent data, which indicates that
gillnet fishermen may be able to target certain species with gillnet
and avoid others, NMFS changed the preferred alternative from B3 in the
DEIS, which would have eliminated gillnet gear as an authorized gear,
to alternative B1 in the FEIS, the No Action alternative, which retains
gillnet gear as an authorized gear in the Atlantic shark fishery. Also,
under the new preferred alternative in the FEIS, A6, incidental catches
of blacknose sharks will continue to be allowed. NMFS made changes in
the preferred alternative from the DEIS to the FEIS based on this and
similar comments and made conforming changes in the Final Amendment 3
and this final rule.
C. Commercial Pelagic Shark Effort Controls
Comment 1: NMFS should prefer the No Action alternative C1.
Shortfin mako sharks are underutilized and NMFS should not propose any
measures.
Response: Based upon the 2008 ICCAT stock assessment for shortfin
mako sharks, NMFS has determined that the North Atlantic population is
experiencing overfishing. Under the Magnuson-Stevens Act, if NMFS
determines that a fishery is overfished or approaching an overfished
condition due to excessive international fishing pressure and there are
no management measures to end such overfishing in an international
agreement to which the United States is a party, it must take action at
the international level to end overfishing (16 U.S.C. Sec. Sec. 1854,
1854 note). The ICCAT stock assessment did not provide a recommended
TAC or mortality reductions to prevent overfishing of shortfin mako
sharks, making it difficult to set a quota or other limit to prevent
overfishing. Because there are currently no ICCAT measures to end
overfishing of shortfin mako sharks and U.S. shortfin mako shark
landings have comprised approximately nine percent of international
landings from 1997 through 2008, domestic reductions of shortfin mako
shark mortality alone would not end overfishing of the entire North
Atlantic stock. Therefore, NMFS believes that ending overfishing and
preventing an overfished status would be better accomplished through
international efforts.
Comment 2: NMFS received many comments regarding the minimum size
alternatives for shortfin mako sharks (alternative C4). These comments
included: In order to reduce the risk of overfishing of the shortfin
mako, the Environmental Protection Agency (EPA) recommends including a
measurable alternative, such as alternative C4a, along with preferred
alternatives C5 and C6; there should be a minimum size limit
restriction of 73 inch fork length (FL) (185.4 cm FL) for the
commercial harvest of shortfin mako with a
[[Page 30495]]
retention limit of 3 fish per trip; the size limits for shortfin mako
shark should be changed to 108 inches FL (274.3 cm FL) in the
commercial fishery; there should be a 72 inch FL (182.9 cm FL) min size
for recreational and commercial fisheries; since it is indicated that
the commercial fishery lands so few shortfin mako sharks below the
recreational minimum size, implementing that minimum size should have
minor economic impact on commercial fishermen, yet would have a
positive ecological impact on the shortfin mako stock; and NMFS should
not establish a commercial minimum size for shortfin mako sharks as
that management measure would present safety at sea issues.
Response: NMFS analyzed applying commercial size limits in the
shortfin mako fishery according to the size at which 50 percent of
males reach sexual maturity (22 in IDL; equivalent to 73 in FL) and the
size at which 50 percent of females reach sexual maturity (32 IDL;
equivalent to 108 in FL). Using data from pelagic longline (PLL)
fishery observers and PLL logbook data, NMFS estimated the average
number of additional shortfin mako sharks that would be released alive
according to the proposed 22 in IDL and 32 in IDL size limits to be 89
and 5 shortfin mako sharks, respectively. Despite the potentially
minimal economic impacts of imposing a commercial size limit for
shortfin mako sharks, NMFS concluded that neither of the size limits
would dramatically reduce shortfin mako shark mortality in the U.S.
commercial fishery and that any mortality reductions would not be
enough to end overfishing of this species. NMFS has decided to take
action at the international level through international fishery
management organizations to establish management measures to end
overfishing of shortfin mako sharks. Based on the results of future
ICCAT stock assessments of shortfin mako sharks, NMFS may consider and
propose additional management measures for shortfin mako sharks as
necessary.
Comment 3: NMFS received numerous comments in support of, and in
opposition to, the preferred alternative to work at the international
level to end overfishing of shortfin mako (alternative C5).
Response: The United States commercial harvest of Atlantic shortfin
mako sharks has historically been incidental in the PLL fishery. NMFS
determined that the U.S. contribution to North Atlantic shortfin mako
shark fishing mortality is relatively low in comparison to the total
fishing mortality on the North Atlantic stock. According to ICCAT
shortfin mako landings estimates, the United States contributed less
than 9 percent (3262 mt ww/36,397 mt ww = 8.6 percent) of the total
North Atlantic shortfin mako shark fishing landings. As such, NMFS
believes that the status of the stock is due to excessive international
fishing pressure, and domestic reductions of shortfin mako shark
mortality alone would not end overfishing of the entire North Atlantic
stock. Therefore, NMFS has decided to take action at the international
level through international fishery management organizations,
consistent with section 304(i) of the Magnuson-Stevens Act, where
countries that have large catches of shortfin mako sharks could
participate in the establishment of management measures to end
overfishing of shortfin mako sharks.
Comment 4: NMFS should take action domestically, such as removing
shortfin mako sharks from the pelagic shark species complex and placing
it on the prohibited shark species list (alternative C3).
Response: The U.S. commercial PLL fishery does not specifically
target shortfin mako sharks and their harvest represents a small
percentage of the overall fishing mortality for the North Atlantic
shortfin mako shark stock. Moving shortfin mako sharks to the
prohibited shark species list would increase the number of dead
discards from the U.S. PLL fleet, as retention of shortfin mako sharks
that come to the vessel dead would be prohibited. Additionally,
reducing U.S. shortfin mako shark mortality alone would likely not be
enough to end overfishing for this stock. For these reasons NMFS
selected the preferred alternatives in the FEIS to work internationally
to end overfishing of shortfin mako sharks, and to promote the live
release of shortfin mako sharks domestically.
Comment 5: NMFS received comments stating that commenters are
troubled by NMFS' apparent belief that it need not implement strong
measures to end domestic overfishing of shortfin mako because the bulk
of the catch occurs at the international level. Section 304 of the
Magnuson-Stevens Act does not prevent NMFS from taking immediate action
at the domestic level to prevent overfishing by U.S. vessels. Moreover,
the Magnuson-Stevens Act section 303 specifies that all fishery
management plans, including those applicable to species that are
managed under international agreements, have effective ACLs and AMs by
2010 or 2011 unless the agreement specifies a different deadline.
Nothing in the Magnuson-Stevens Act requires NMFS to avoid taking
action on the domestic front simply because applying the required
measure will not instantaneously or singlehandedly end overfishing. The
United States must take a leadership role in ensuring the sustainable,
scientific management of international fisheries, both by promoting
these measures internationally and implementing them at home.
Response: There are several strict measures (e.g., landings quota,
fins attached provision) that shortfin mako sharks are managed under
domestically, and the United States is considered a leader in shark
fishery management. Amendment 3 also includes mechanisms for specifying
ACLs and establishing AMs for Atlantic sharks. NMFS believes that
taking action at the international level through international fishery
management organizations to establish management measures to end
overfishing of shortfin mako sharks is the most effective way to end
overfishing of shortfin mako sharks in the long term without causing
significant economic impacts to domestic fishermen in the short term.
Sections 102 and 304(i) of the Magnuson-Stevens Act encourage this
approach, particularly for species approaching an overfished condition
due to excessive international fishing pressure when there are no
management measures to end overfishing under an international agreement
to which the United States is a party. The shortfin mako shark is part
of the pelagic species complex, which currently has defined criteria
for MSY, OY, and status determination. NMFS has implemented measures
that limit commercial harvest through quotas and trip limits for
incidental permit holders that act as measures equivalent to ACLs and
AMs, respectively. The 2008 ICCAT SCRS stock assessment did not
recommend a TAC or necessary mortality reductions for shortfin mako
sharks. Therefore, it is difficult to determine appropriate catch
levels that would help to stop overfishing or be overly restrictive to
U.S. fishermen, putting them at a disadvantage compared to
international fishermen. NMFS feels that international cooperation is
essential at this time in order to determine the level of catch that
would stop overfishing on the entire Atlantic stock.
Comment 6: NMFS received several comments regarding the proposed
alternative to promote the live release of shortfin mako sharks
(alternative C6). One commenter stated that about 90 percent of the
shortfin mako sharks that are caught on longlines come to the vessel
alive and asked how NMFS
[[Page 30496]]
would promote the release of shortfin mako sharks. Another commenter
questioned the effectiveness of this alternative and questioned the
practicability of advising fisheries to release saleable sharks even
though they may not be the target of the fisheries that are largely
targeting swordfish and tuna. Another commenter stated they did not
support alternative C6 because there is no evidence that the
alternative will be successful especially given that NMFS recognizes
that discards of shortfin mako sharks are rare because their meat is
highly valuable. The State of Georgia commented that it is unclear how
alternative C6 would impact the meat quality of the shortfin mako kept.
Some commenters noted their support for alternative C6. One commenter
stated that NMFS should promote the live release of shortfin mako
sharks, but should not make it a requirement, and that it is common for
the distant water fleet to release live sharks.
Response: According to the PLL observer program reports from 1992-
2006, 68.9 percent of shortfin mako sharks are brought to the vessel
alive and 30.1 percent come to the vessel dead. Live release of
shortfin mako sharks would be voluntary under this action and could be
promoted using current HMS outreach mediums (e.g., Web site, e-mail
listserv, mailings) along with others that have yet to be determined.
This would allow NMFS to communicate the current status (overfishing
occurring) of the North Atlantic shortfin mako shark stock in the hopes
that fishermen will voluntarily reduce commercial fishing mortality to
avoid a future change in stock status (overfished) that could lead to
more restrictive measures. Because additional outreach efforts would
likely be developed over time, NMFS is unable to predict how they will
impact shortfin mako shark mortality in the commercial fishery. NMFS is
unaware of any price differential between shortfin mako sharks that
arrive at the vessel alive or dead, and this action is not expected to
impact shortfin mako meat quality or ex-vessel prices.
Comment 7: NMFS received multiple comments regarding the shortfin
mako stock assessment. Some commenters stated that the United States
needs to perform a stock assessment domestically for shortfin mako
sharks, separate from the ICCAT assessment. Other commenters asked who
conducted the stock assessment and if it was done the same way as other
shark stock assessments. One commenter stated that he is concerned with
the doubling of the age of maturity and the length of life of the
female shortfin mako, while the male shortfin mako did not seem to
change in demographics much at all. Another commenter felt that the
data used in the stock assessment is outdated and has been flawed for
years now. NMFS does not use real time data such as the 2009 season.
The shortfin mako shark population has not changed drastically in the
past 8 years.
Response: The North Atlantic shortfin mako shark stock assessment
is conducted by ICCAT's SCRS on an international level because of the
highly migratory nature of the stock between international
jurisdictions. The ICCAT stock assessment uses shortfin mako data from
all reporting countries. Therefore, some of the data and assessment
approaches used in the ICCAT SCRS shortfin mako shark assessment may
differ from the data and approaches used in domestic shark assessments,
which are conducted through the Southeast Data, Assessment, and Review
(SEDAR) process. In either case, NMFS believes that the data and
approaches used in these shark stock assessments represent the best
available science. Any changes in shortfin mako size at maturity
estimates occurred due to new scientific information, which is
considered the best available science at this time.
D. Recreational Measures for SCS
Comment 1: NMFS should implement alternative D2 to modify the
minimum size limit for recreationally caught blacknose sharks.
Response: Alternative D2 would modify the minimum recreational size
for blacknose sharks based on their biology from 54 inches FL to 36
inches FL. The new restriction would lower the current minimum size for
blacknose sharks and could lead to increased landings of blacknose
sharks. In order to achieve the TAC recommended by the 2007 blacknose
shark stock assessment, NMFS would need to reduce overall blacknose
mortality. Since decreasing the minimum size for blacknose sharks could
result in increased landings of blacknose sharks, NMFS did not select
this alternative at this time. NMFS carried this alternative forward
for full consideration in the FEIS but did not identify it as the
preferred alternative or select it as an element of Final Amendment 3.
Comment 2: The State of South Carolina and others support the
change in the recreational bag limit for Atlantic sharpnose sharks from
one per person per day to two per person per day, particularly within
the South Atlantic region (alternative D3). The Atlantic sharpnose was
listed as not overfished with no overfishing occurring and the SCS
quota has also been consistently under harvested in the South Atlantic
region. Increasing retention limits for Atlantic sharpnose could
mitigate the economic impacts of SCS quota reductions. NMFS has listed
the Atlantic sharpnose as a readily identifiable species, and
increasing their recreational bag limit should have no negative impact
on sandbar, dusky, or blacknose sharks.
Response: NMFS thanks the State of South Carolina for submitting a
comment and recreational catch data. Alternative D3 would increase the
retention limit for Atlantic sharpnose sharks based on current catches
and stock status. Based on the 2007 stock assessment for Atlantic
sharpnose, the biomass for Atlantic sharpnose sharks is falling towards
the maximum sustainable yield threshold. While the stock is not
currently overfished or experiencing overfishing, the latest stock
assessment suggests that increasing fishing effort, such as increasing
the retention limit of Atlantic sharpnose sharks, could result in an
overfished status and/or cause overfishing to occur. Thus, since
increasing the retention limit for Atlantic sharpnose could result in
increased fishing effort and result in negative ecological impacts for
the stock, NMFS did not implement this alternative. While NMFS carried
Alternative D3 forward for full consideration as a reasonable
alternative in the FEIS, it did not select it as part of Final
Amendment 3.
Comment 3: NMFS received numerous comments regarding the proposed
alternative to prohibit the recreational retention of blacknose sharks
(alternative D4). Commenters stated that few recreational fishermen
target blacknose and since they rarely reach the 54-inch minimum size,
Alternative D4 would likely have no impact. Some commenters were
concerned that prohibiting the retention of blacknose sharks in the
recreational fishery, while allowing retention in the commercial
fishery, equates to an allocation decision giving 100 percent of the
quota to one sector. Other commenters stated that there was no reason
recreational anglers should be allowed to retain a species that is
overfished. The State of South Carolina commented that NMFS should
implement alternative D4 because this action will provide additional
protection for blacknose sharks in Federal and State waters and help
educate the public and fishermen as to the precarious status of the
overall blacknose shark population. The State of Georgia does not
support alternative
[[Page 30497]]
D4 since the current size limits in place under the FMP already afford
adequate protection for blacknose sharks. Georgia commented that NMFS
should look at the recently enacted management of the coastal States
relative to shark species and determine where the problems with
recreational retention of blacknose sharks are occurring. Georgia
supports alternative D1, which would be consistent with the State
regulations to the maximum extent practicable. The State of Florida
commented that NMFS should not prohibit the retention of blacknose
sharks in the recreational fishery, and should, instead, work on other
regulations to end overfishing of blacknose sharks. The State's current
shark regulations provide conservation and management measures that
permit a reasonable and sustainable annual harvest, while additional
Federal restrictions are not warranted for State waters.
Response: NMFS agrees that few recreational fishermen target
blacknose sharks. Based on public comments and the fact that current
recreational size limits afford adequate protection for blacknose
sharks, NMFS changed the preferred alternative from alternative D4 in
the DEIS, which would have prohibited blacknose sharks, to D1 in the
FEIS, the No Action alternative, which maintains the current
recreational size and bag limits. NMFS will maintain the existing
recreational retention limits for SCS. Recreational anglers are
currently allowed one authorized shark per vessel per trip (including
SCS). Also, they are allowed 1 bonnethead shark and 1 Atlantic
sharpnose shark per person per trip. In addition, there is a
recreational minimum size of 54 inches (4.5 ft) FL, which does not
apply to Atlantic sharpnose or bonnethead sharks allowed per person per
trip. Most blacknose sharks do not reach the current Federal minimum
size of 54 inches FL, therefore, it is presumed that most recreational
blacknose shark landings currently occur in State waters, where size
and retention limits for blacknose sharks may be less restrictive than
Federal regulations. In the Atlantic Ocean, under the ASMFC Interstate
Coastal Shark FMP there is currently no minimum size limit for
blacknose sharks. Because the Federal minimum size limit of 54 inches
FL, acts as a de facto retention prohibition, and after evaluating
public comments on the DEIS, NMFS decided to change the preferred
alternative in the FEIS to alternative D1. However, NMFS asks each
State to implement measures consistent with the current Federal 54 inch
FL size limit to help reduce recreational mortality in State waters and
meet rebuilding targets for blacknose sharks. Depending on the results
of the upcoming blacknose shark stock assessment, NMFS may consider
prohibiting recreational retention of blacknose sharks in future
actions. Thus, at this time, NMFS believes that these current
regulations will continue to provide adequate protection for blacknose
sharks in the recreational fishery. However, it may be necessary to
increase outreach to recreational fishermen on the identification of
blacknose sharks so those that are caught can be released in a manner
that maximizes survival of this species. It may also be necessary to
work with States to ensure consistent regulations and enforcement.
Comment 4: If NMFS prohibits the retention of blacknose sharks in
the recreational fishery, how will this impact ASMFC member States?
Response: If NMFS adds a particular species to the prohibited
species list, according to the ASMFC Interstate Coastal Shark FMP, the
member States would need to implement management measures that would
provide a conservation equivalency for blacknose sharks or States could
decide to mirror NMFS regulations. However, in the DEIS, NMFS was not
proposing to add blacknose sharks to the prohibited species list.
Rather, in the DEIS, NMFS proposed not authorizing recreational
possession of blacknose sharks. Thus, under the proposed management
measure in the DEIS, ASMFC regulations would not be affected unless
ASMFC took action to be consistent with Federal regulations.
Comment 5: Recreational fishermen cannot reliably identify
blacknose sharks. If the retention of blacknose sharks is prohibited in
the recreational fishery, NMFS will need to implement an outreach
program to educate recreational anglers.
Response: Based on public comments and the fact that current
recreational size limits afford adequate protection for blacknose
sharks, NMFS changed the preferred alternative from alternative D4 in
the DEIS, which would have prohibited blacknose sharks, to D1 in the
FEIS, the No Action alternative which maintains the current
recreational size and bag limits. Currently, NMFS has recreational
shark identification placards that categorize the differences between
the recreational sharks. The placards can be attained on the HMS Web
site (http://www.nmfs.noaa.gov/sfa/hms/sharks/) or by contacting the
HMS division at 301-713-2347. In the future, NMFS could cooperate with
States to increase identification of this species in State waters as a
larger portion of the recreational catch of blacknose sharks occurs in
State waters.
E. Recreational Measures for Pelagic Sharks
Comment 1: NMFS received comments in support of the No Action
alternative (alternative E1).
Response: Based on the 2008 ICCAT SCRS stock assessment for
shortfin mako sharks, NMFS has determined that the North Atlantic
population is experiencing overfishing. Under the Magnuson-Stevens Act,
if NMFS determines that a fishery is overfished or is approaching an
overfished condition due to excessive international fishing pressure
and there are no management measures to end such overfishing in an
international agreement to which the United States is a party, it must
take action at the international level to end overfishing (16 U.S.C.
1854, 1854 note). The ICCAT stock assessment did not recommend a TAC or
mortality reductions to prevent overfishing of shortfin mako sharks,
making it difficult to set a quota or other limits to prevent
overfishing. Because there are currently no ICCAT measures to end
overfishing of shortfin mako sharks, and U.S. shortfin mako shark
landings have comprised approximately nine percent of international
landings from 1997 through 2007, NMFS believes that taking action on an
international level to end overfishing of shortfin mako sharks is
necessary at this time.
The No Action alternative would allow the recreational harvest of
one shortfin mako shark greater than 54 inches FL per vessel per trip.
The decision to work on an international level to end overfishing and
promote the live release of shortfin mako sharks will not change the
current recreational shortfin mako shark size or bag limits.
Comment 2: NMFS received several comments regarding the minimum
size for recreational shortfin mako fishing (alternative E2). Comments
included: Recreational limits for shortfin mako should be one fish per
trip of any size; we are requesting a bag limit of two mako sharks and
a minimum size of 72 inches FL (182.9 cm FL)--this minimum size should
apply to all fishermen, recreational and commercial; NMFS should
implement a realistic minimum size like the minimum length requirement
of 66 inches (167.6 cm) in the Annual Mako Mania Tournament; and NMFS
should adopt alternative E2b, which increases the minimum size for
recreational fishers from 54 to 73 inches FL--this coupled with the
[[Page 30498]]
preferred alternatives for shortfin mako management, represent an
integrated strategy that will immediately reduce shortfin mako harvest
while aspiring to make long-term, systemic changes in both
international management of and domestic attitudes toward the shortfin
mako fishery.
Response: Two size limits were analyzed for the recreational
shortfin mako shark fishery based on the estimated size of sexual
maturity of females (108 inches FL) and the estimated size of sexual
maturity of males (73 inches FL). Large Pelagic Survey (LPS) data from
2004 to 2008 was used to estimate the impact of the proposed size
limits on recreational shortfin mako shark landings from tournament and
non-fishing tournament activities. This analysis found that 99.5
percent of all recreational landings fell under the proposed 108 inch
FL size limit, and 60.3 percent of all recreational landings fell under
the proposed 73 inch FL size limit. The 73 inch FL size limit would
have a greater impact on non-tournament landings, as 81 percent of the
non-tournament landings fell under the 73 inch size limit compared to
51.7 percent of the tournament landings. Implementing either of these
size limits would reduce a large percentage of shortfin mako shark
landings from a fishery that contributes a small percentage of the
overall North Atlantic shortfin mako shark landings, would likely not
end overfishing on the stock, and could have negative social and
economic impacts. Therefore, NMFS believes that ending overfishing and
preventing an overfished status would best be accomplished through
development of management measures at the international level to be
adopted and implemented by the United States and other nations.
Comment 3: NMFS received several comments, including from the State
of South Carolina, in support of the proposed alternatives E3 and E4.
Commenters felt that those measures should assist in overall shortfin
mako recovery while not becoming overly burdensome to the U.S. sector
of the fishery that is not chiefly responsible for the current stock
status. However, NMFS also received several comments that did not
support the proposed alternative. These commenters noted that with
recreational fishing tournaments actively targeting shortfin mako
sharks, offering large prizes for their capture, and placing a high
value on retaining them as trophies, it is difficult to see how
promoting a voluntary live release measure will have any effect on the
species' mortality. These commenters also note that shortfin mako
sharks are highly valued, both as one of the few sharks generally
deemed ``edible'' and as a recognized ``trophy'' to be weighed and
displayed upon capture. Operators of for-hire vessels are unlikely to
release a legal-sized mako over the objections of their fares. While a
significant proportion of the recreational shark fishery is comprised
of anglers who say they practice catch-and-release, exceptions to that
general practice are often made when a shortfin mako is brought to
boatside.
Response: NMFS agrees that working on an international level to
reduce overfishing and promoting the live release of shortfin mako
sharks is the best course of action to take at this time. Because the
United States contributes very little to shortfin mako shark mortality
in the North Atlantic, ending overfishing and preventing an overfished
status may be better accomplished through international efforts with
other countries that have large takes of shortfin mako sharks. NMFS
believes that this action is appropriate at this time rather than
implementing restrictive management measures unilaterally, which could
unilaterally disadvantage U.S. fishermen. Promoting the release of
shortfin mako sharks that are brought to the vessel alive, and the NMFS
Code of Angling Ethics (64 FR 8067), could result in the reduction of
fishing mortality of shortfin mako sharks and thus, have positive
ecological impacts for this species. In promoting the live release of
shortfin mako sharks, recreational fishermen will have the opportunity
to reduce shortfin mako shark mortality with the intent to maintain the
stock and avoid an overfished determination, which could lead to new
restrictions on the U.S. recreational fishery. Outreach efforts will be
developed over time, therefore, NMFS is unable to predict how they will
impact shortfin mako shark mortality in the recreational fishery.
Comment 4: NMFS should implement alternative E5, prohibit landing
shortfin mako sharks in recreational fisheries, or at least prohibit
landings in fishing tournaments. NMFS acknowledges that shortfin mako
sharks could meet two of the most important of the four criteria that
lead to being listed as a prohibited species (i.e., there is sufficient
biological information to indicate the stock warrants protection and
the fact it resembles other prohibited species). NMFS has rejected this
alternative simply because it would have a significant negative effect
on commercial fishery revenue (over a quarter of a million dollars
annually) and it would inhibit expansion of the pelagic longline fleet.
Further, NMFS speculates that prohibiting retention could result in
increased dead discards. This rationale is inadequate.
Response: Placing shortfin mako sharks on the prohibited species
list would result in a recreational catch and release fishery for this
species. NMFS decided not to prohibit landing of shortfin mako sharks
in the recreational fishery because, given the small numbers of
shortfin mako sharks landed in the recreational fishery in comparison
to international landings, prohibiting the possession of U.S. caught
shortfin mako sharks is unlikely to end overfishing on the stock, and
because of the importance of shortfin mako sharks in recreational
fishing tournaments. If shortfin mako are prohibited in the commercial
fishery, increases in dead discards mainly apply to the commercial PLL
fleet, where over 30 percent of shortfin mako caught are dead at
haulback. In the recreational fishery, post-release mortality rates for
shortfin mako sharks are generally believed to be low when injuries
from hooking and releasing the shark are minimized, therefore, NMFS
would not anticipate a significant increase in dead discards with a
recreational shortfin mako shark retention prohibition. NMFS believes
that the preferred alternatives, to work internationally to end
overfishing of shortfin mako sharks and to promote the live release of
shortfin mako sharks domestically, are adequate at this time.
Comment 5: The EPA notes that the DEIS is unclear regarding the
impact of shortfin mako shark landings attributed to the recreational
fishery in comparison to landings from the commercial fishery.
Alternatives E2a and/or E2b, which are similar to the commercial size
limit alternatives, should be preferred, since an increase in size
limits could have significantly positive ecological impact upon this
species and would lead to a large majority of the recreationally-caught
shortfin mako sharks being released alive.
Response: In the DEIS, NMFS calculated average annual recreational
shortfin mako shark landings from ICCAT estimates from 1981 to 2007.
Because there were no ICCAT landings estimates available for the
commercial shortfin mako shark fishery from 1981 to 1991, the impact of
the recreational fishery on shortfin mako shark mortality may have been
inflated. In the FEIS, NMFS compares recreational and commercial ICCAT
estimates of shortfin mako shark landings over years where data for
both fisheries are available
[[Page 30499]]
(1992-2008). This analysis shows that shortfin mako shark landings from
the U.S. commercial (109,611 sharks landed) and recreational (110,256
sharks landed) fisheries are similar over that time period.
Implementing the size limits proposed in Alternatives E2a or E2b will
reduce a large percentage of shortfin mako shark landings from a
fishery that contributes a small percentage of the overall North
Atlantic shortfin mako shark landings. Therefore, implementing size
limits would unnecessarily disadvantage U.S. fishermen in relation to
those from other countries who also contribute to shortfin mako shark
mortality. NMFS believes that ending overfishing and preventing an
overfished status would best be accomplished through development of
management measures at the international level to be adopted and
implemented by the United States and other nations.
Comment 6: NMFS received a comment that asked about the post-
release survival for shortfin mako sharks.
Response: Scientific studies have not been conducted regarding the
post-release survival of North Atlantic shortfin mako sharks caught in
U.S. commercial or recreational fisheries, therefore, it is currently
unknown for these fisheries. A study by Hight et al. 2007, estimated
the post-release survival of shortfin mako sharks caught on PLL gear at
approximately 80 percent. This research was conducted in the Pacific
Ocean off of California using different gear (J hooks) and shorter soak
times (~3 hours) than in the U.S. Atlantic PLL fishery. Therefore, it
may not be representative of the post-release survival of North
Atlantic shortfin mako sharks caught in the U.S. Atlantic PLL fishery.
In the recreational fishery it is believed that post-release survival
is very high, especially when injuries from hooking and releasing the
shark are minimized and fishermen release sharks in a way that
maximizes their survival.
Comment 7: NMFS says that the U.S. catch proportion is less than 10
percent. Last year, the data was extrapolated and the range was between
4-5 percent. If that is correct, NMFS is overstating the relevancy of
the U.S. catch to the entire Atlantic-wide mortality. The United States
is not a big player in the shortfin mako shark fishery. Canada and
Spain will determine the fate of shortfin mako sharks at ICCAT.
Response: The proportion of U.S. shortfin mako shark catch referred
to in the DEIS was calculated from estimated commercial shortfin mako
shark landings and discards reported to ICCAT from 1997 to 2008, which
is approximately 9 percent of the Atlantic-wide shortfin mako shark
landings over that time period (3431 mt ww/39,769 mt ww = 8.6 percent).
This indicates that the United States contributes a small proportion to
the overall fishing mortality on the North Atlantic shortfin mako shark
stock.
Comment 8: Several commenters felt that the proposed alternatives
would close the shortfin mako recreational fishery.
Response: NMFS considered five alternatives for pelagic sharks in
the recreational fishery, and only one, adding shortfin mako sharks to
the prohibited species list, would prohibit recreational landings of
shortfin mako sharks. The preferred alternatives in the FEIS, working
on an international level to end overfishing and promoting the live
release of shortfin mako sharks, will not prohibit landings of shortfin
mako sharks or close the recreational fishery.
F. Smooth Dogfish
Comment 1: NMFS received several comments in support of the No
Action alternative (alternative F1) and mirroring ASMFC smooth dogfish
regulations (alternative F3). For example, the State of North Carolina
opposed the preferred alternative F2, and supported alternative F1
under the smooth dogfish management measure. The State of Virginia and
other commenters support Alternative F1 as their preferred option, but
could also support Alternative F3. The State of Virginia believes
Addendum I to the ASMFC Coastal Shark FMP is a compromise between the
ease of species identification for Law Enforcement and the need by the
commercial fishery to completely process smooth dogfish at sea due to
their rapid spoilage. The State feels that the current ASMFC management
regime for smooth dogfish should allow NMFS to take no action at this
time (alternative F1) or to add smooth dogfish under NMFS management
and mirror the provisions of the ASMFC Interstate Shark FMP
(alternative F3). Similarly, the MAFMC supports the No Action
alternative (alternative F1) since the fishery is not a growth fishery
and landings have been stable. The MAFMC also commented that if no
action (alternative F1) is selected, the Council would support
requesting ASMFC to adopt mandatory dealer reporting requirements and
establish a quota consistent with alternative F2a3. The MAFMC also
noted that if NMFS determines that it will implement Federal
management, then as a secondary choice the MAFMC supports alternative
F3 for smooth dogfish.
Response: Because smooth dogfish is not currently a Federally
managed species and fishery data reporting is not required, catch,
effort, and participant data are sparse. These smooth dogfish data
limitations have led to an unknown stock status and an unknown
condition of the fishery. One way to rectify these shortcomings and
provide needed conservation and management of smooth dogfish is to
bring the species under Federal management. The Magnuson-Stevens Act
requires preventing overfishing while achieving optimum yield on a
continuing basis. Collection of smooth dogfish fishery data will
facilitate stock assessments and effort estimates and addressing
overfishing and other mandates under the Magnuson-Stevens Act. NMFS did
not prefer the No Action alternative (Alternative F1) because
maintaining the status quo would perpetuate the unknown condition of
the fishery. Furthermore, because the resource is available along most
of the eastern U.S. coast and there is a market for the product, smooth
dogfish effort could increase as other fisheries become more
constrained.
NMFS chose not to prefer Alternative F3, mirroring the ASMFC smooth
dogfish measures, because the ASMFC plan contains some provisions that
NMFS cannot implement and does not include others that NMFS must
implement. On May 6, 2009, the ASMFC approved a smooth dogfish Addendum
to the Atlantic Coastal Sharks FMP for public comment. Included within
this Addendum is an exception for smooth dogfish to allow at-sea
processing (i.e., removal of shark fins while still onboard a fishing
vessel), removal of recreational retention limits for smooth dogfish,
and removal of the two hour net-check requirement for shark gillnets.
The at-sea processing would require a five-percent fin to carcass
ratio, but would allow for the removal of fins at sea. The allowance
for the removal of shark fins while still onboard a fishing vessel and
the removal of the two hour net-check requirement differs from current
Federal regulations for other shark species. NMFS considers the
requirements for gillnet checks and maintaining shark fins naturally
attached through offloading to be important to minimize impacts on
protected resources and to prevent shark finning, respectively. NMFS
recently implemented the fins attached regulation for all Atlantic
sharks for enforcement and species identification reasons and does not
favor creating a potential loophole that could hinder enforcement. In
addition,
[[Page 30500]]
ASMFC has not established a quota or a permitting requirement for the
smooth dogfish fishery. As noted above, NMFS is required to establish
ACLs and AMs under the Magnuson-Stevens Act and believes that
permitting is the first step to gaining information about the fishery.
Thus, NMFS has decided not to mirror the ASMFC regulations at this
time. Nonetheless, under alternative F2, NMFS will delay implementation
of the management measures until the beginning of the smooth dogfish
season in 2012 and, in the interim, continue to work with ASMFC and the
MAFMC to ensure Federal and State regulations are consistent to the
extent practicable.
Requiring that fins remain naturally attached to the smooth dogfish
carcass is important to NMFS for several reasons: To facilitate species
identification; to maintain consistency with other shark regulations
that require that the fins remain attached while keeping the carcass
essentially whole; and to maintain consistency with the United States'
international shark conservation and management positions. Identifying
all sharks to the correct species is a vital step in vessel and dealer
reporting. These reports are used to monitor catch levels in relation
to quotas and to advise stock assessments. When ASMFC implemented their
regulations allowing the removal of smooth dogfish fins during certain
seasons, they only considered the potential overlap in species
distribution between sandbar and smooth dogfish. They did not consider
the potential overlap with many other species of sharks that NMFS
manages including SCS and spiny dogfish and the potential for
misidentification with these species. NMFS heard during the proposed
rule comment period that participants in the smooth dogfish fishery
fully process the fish into ``logs'' or fillets of meat at sea.
Identifying the species of fully-processed carcasses from cuts of meat
is very difficult. For this reason, for a number of years before first
requiring that fins be attached in 2008, NMFS had prohibited the
filleting of sharks at sea and required all sharks be landed as logs.
In the 2006 Consolidated HMS FMP, NMFS took a further step of requiring
that the second dorsal and anal fin be maintained on the dressed
carcass. Furthermore, the ability to identify both carcasses and fins
to the species level is critical for enforcing the prohibition on shark
finning for all Federally managed Atlantic shark species. The most
effective way for fishermen, dealers, and enforcement to properly
identify both fins and carcasses is to require that fins remain
naturally attached through offloading. Detached smooth dogfish fins can
be difficult for most people to differentiate from other shark fins.
Differentiating numerous detached smooth dogfish fins from other shark
fins can be inefficient and impractical from an enforcement
perspective, particularly in a high volume fishery.
All sharks currently managed by the Secretary of Commerce
(Secretary) (large coastal sharks, small coastal sharks, and pelagic
sharks) must be landed with fins naturally attached. Deviating from
this measure in the smooth dogfish fishery would introduce management
inconsistencies and potential enforcement loopholes. The fins
naturally-attached regulation is also consistent with the U.S.
international position on shark conservation and management. Globally,
shark finning is a serious threat to many shark species. The United
States has co-sponsored fins-attached proposals and supported an
international ban on the practice of shark finning and has recently
proposed adding several species to the CITES Appendix II listing to aid
in monitoring shark fin trade. An effective method to enhance the
enforceability of a finning ban is to require that fins remain
naturally attached to the shark carcass through offloading. In addition
to this requirement, the United States also encourages maintaining the
five percent fin-to-carcass ratio. The five percent fin-to-carcass
ratio is a critical tool for dockside enforcement when enforcement
officers are unable to monitor an entire offload, and enhances shark
conservation efforts by allowing NOAA to utilize dealer landing records
to detect potential shark finning violations post-landing for
subsequent follow-up investigation. If domestic exemptions to the fins
naturally attached regulation were implemented, it could undermine the
United States' international position on the fins naturally attached
policy and other shark conservation and management measures.
Comment 2: Several commenters asked what would happen if NMFS
decided not to implement management actions (alternative F1). They
asked if it would that mean that the ASMFC would be the sole managers
of smooth dogfish.
Response: Whether NMFS decided to implement management measures or
not, ASMFC regulations would not apply in Federal waters. The
jurisdiction of ASMFC management plans only includes State waters, and
the absence of a Federal management plan would not extend ASMFC's
jurisdiction. While smooth dogfish are not currently managed at the
Federal level, there are Federal regulations in place that apply to
smooth dogfish fishing in the EEZ, including the Shark Finning
Prohibition Act. This Act prohibits landing shark fins without the
corresponding carcass and in excess of 5 percent of the carcass weight.
If NMFS decides not to implement management measures, these Federal
regulations will still apply. This comment did not require any revision
in the FEIS.
Comment 3: NMFS received comments supporting the proposed
alternative (alternative F2), which would implement management measures
in the smooth dogfish fishery. Several commenters noted that this
alternative would also require issuance of Federal permits, which are
essential in remedying the serious deficiencies in data and would lead
to better stock assessments. The preferred alternative of Federal
management has the added benefit of obtaining dealer reports and
providing for Federal fishery observers aboard vessels targeting
dogfish. The State of Georgia supported the proposed alternative and
noted that as ASMFC has recognized the importance of smooth dogfish, it
is only fitting that NMFS should also consider responsible management
of this species in Federal waters.
Response: NMFS believes that implementing Federal management
measures, should the species be brought under NMFS management, would be
an important first step in meeting its Magnuson-Stevens Act mandate to
prevent overfishing while achieving, on a continuing basis, optimum
yield. Achieving this mandate would require the collection of smooth
dogfish fishery data to perform stock assessments and effort estimates.
Federal permits, dealer reporting, and on board observers would provide
valuable participant information and better characterize the nature of
the fishery. The ASMFC's action to include smooth dogfish in the
coastal shark management plan is further indication of emerging
awareness that the species is in need of conservation and management
measures. Due to the highly migratory nature of smooth dogfish and its
large range, it would provide a positive ecological benefit across
their range regardless of political boundaries. The DEIS identified
alternative F2 as the preferred alternative and no change was made in
the FEIS or this final rule except that the implementation of the
measures under the preferred alternative would be delayed until the
beginning of the smooth dogfish fishing season in 2012 to allow time
for fishery
[[Page 30501]]
participants to adjust to the new requirements.
Comment 4: NMFS received many comments specific to the 5 percent
fin to carcass ratio for smooth dogfish, including that the 5 percent
ratio is too low and that the ratio should be closer to 10-12 percent.
The MAFMC commented smooth dogfish are unique in their fin to carcass
ratio. They have two dorsal fins that are large enough to retain and
sell. The carcasses are typically sold with the napes removed, rather
than split, which significantly reduces the weight basis of the carcass
and increases the fin to carcass ratio. The fins are removed with a
straight cut, rather than the crescent cut required for other shark
fins, thereby increasing its weight and the fin to carcass ratio. As a
result, the fin to carcass ratio for smooth dogfish is typically 9 to
10 percent if the two pectoral fins and two dorsal fins are retained.
The tails are not typically retained due to their low value, but if
they are retained, the total fin weight increases to 13 to 14 percent.
Response: On December 21, 2000, the Shark Finning Prohibition Act
(Pub. L. 105-557) (Act) was signed into law. The Act established a
rebuttable presumption that any shark fins landed from a fishing vessel
or found on board a fishing vessel were taken, held, or landed in
violation of the Act if the total weight of shark fins landed or found
on board exceeded five percent of the total weight of shark carcasses
landed or found on board. It was implemented by NMFS through a final
rule released in February 11, 2002 (67 FR 6124). Thus, any changes to
the five percent ratio would have to be modified by Congressional
action. NMFS does not have discretion to selectively implement the five
percent fin to carcass ratio in certain shark fisheries. Furthermore,
difficulty in abiding by the five percent fin to carcass ratio further
supports NMFS' requirement that all smooth dogfish fins remain
naturally attached to the carcass through offloading. Keeping the fins
naturally attached to the carcass through offloading makes it easier
for fishermen to comply with the Shark Finning Prohibition Act. In
order to help fishermen document that sharks were landed with their
fins attached NMFS modified the dealer reporting forms so that it can
be clearly documented that the sharks were landed with fins attached.
NMFS did not add an additional alternative to the FEIS or this final
rule in response to this comment.
Comment 5: The MAFMC encourages NMFS to address Section 307(1)(P)
of the Magnuson-Stevens Act as it relates to the smooth dogfish
fishery, and suggests exploring a Letter of Authorization for the
fishery addressing the rebuttable presumption clause. The smooth
dogfish fishery fully utilizes the carcasses, so there is no
conservation purpose served for this species by the five percent limit
fin to carcass ratio.
Response: Section 307(1)(P) of the Magnuson-Stevens Act states that
``[i]t is unlawful (1) for any persons to * * * (P)(i) remove any of
the fins of a shark (including the tail) and discard the carcass of the
shark at sea; (ii) to have custody, control, or possession of any such
fin aboard a fishing vessel without the corresponding carcass; or (iii)
to land any such fin without the corresponding carcass.'' The section
continues that ``[f]or the purposes of subparagraph (P) there is a
rebuttable presumption that any shark fins landed from a fishing vessel
or found on board a fishing vessel were taken, held, or landed in
violation of subparagraph (P) if the total weight of shark fins landed
or found on board exceeds 5 percent of the total weight of shark
carcasses landed or found on board.''
As noted in the previous response, NMFS has no discretion to
selectively implement the five percent fin to carcass ratio in certain
shark fisheries, therefore, NMFS cannot issue Letters of Authorizations
to exempt fishermen from complying with the Magnuson-Stevens Act and
statutory requirements of the five percent fin to carcass ratio.
Comment 6: NMFS received comments specific to the proposed
requirement that smooth dogfish fins remain naturally attached to the
carcass (alternative F2) including the requirement that smooth dogfish
be landed with their fins naturally attached since allowing an
exemption for smooth dogfish will undermine the overall management and
protection of sharks. NMFS also received comments opposed to the
actions including: The fins attached requirement will end the
commercial smooth dogfish fishery and would have no conservation value
for smooth dogfish; requiring fins remain naturally attached to the
carcass in the summer will reduce the meat quality because fishermen
will have to remove the fins in 95 degree heat while on the dock;
requiring fins remain naturally attached to the carcass will cause the
meat to spoil faster; NMFS stated that their intention was not to
change the fishery, but all the proposed requirements, particularly
requiring fins remain naturally attached, will change the fishery; NMFS
should adopt a rule that mirrors the provisions approved by the ASMFC,
which requires that the smooth dogfish fins need not be landed
attached, except for the dorsal fin during the months of July through
February; and, the fishery is a 98-percent directed fishery, with
little or no by-catch of other shark species. The State of South
Carolina recommended that NMFS consider allowing permitted commercial
shark fisherman to process and remove fins from smooth dogfish at sea,
with the exception of the 1st and 2nd dorsal fins. This would allow
these landed sharks to be differentiated from other species, including
sandbar sharks. The MAFMC commented that smooth dogfish flesh is
uniquely soft and translucent, and is singular among shark species in
its tendency to discolor if the fish is not promptly bled, thoroughly
rinsed to remove any remaining blood, and iced. This unique attribute
of the fish requires at-sea processing. The fins and tails have always
been removed and, in some cases, the backs and fins are sold to
different customers. Requiring the fins and tails to remain attached
would substantially impede the bleeding and cleaning process that is
essential to preventing discoloration and preserving the quality of the
fish.
Response: The FEIS acknowledges and considers the concerns raised
in this comment with respect to potential difficulties resulting from
the inability to completely process smooth dogfish at sea. However,
requiring that fins remain naturally attached to the carcass
facilitates species identification and prevents exceptions to the
Federal prohibition on shark finning. The requirement also maintains
consistency across all Secretary of Commerce-managed shark species in
the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea and reflects the
U.S. international position regarding shark conservation. While the
fins naturally attached requirement will apply to Federal smooth
dogfish fishing permit holders regardless of fishing location, the
intent of the measure would not be to obviate the ASMFC measures, as
suggested in one of the comments. The ASMFC and NMFS operate under
different mandates, jurisdictions, and contexts (domestic and
international). These differences sometimes result in, and can
necessitate, different management measures.
NMFS' intention, when implementing smooth dogfish management
measures, is to minimize alterations to the fishery. As such, NMFS is
delaying the effective date of the management measures under the
preferred alternative in the FEIS until the beginning of the fishing
season in 2012 to allow fishermen and dealers time to adjust to the new
requirements. Smooth dogfish management measures will not be
implemented until the 2012 fishing season, and NMFS believes that
[[Page 30502]]
the methods and techniques employed in other shark fisheries can be
adopted in the interim. However, the practices currently employed in
the fishery are sometimes in conflict with NMFS' shark conservation and
management position and Congressional mandates such as the Shark
Finning Prohibition Act. As noted in several of the comments above,
requiring smooth dogfish fins to remain naturally attached to the
carcass differs from the current practice in the fishery. As described
in the response to a comment above, NMFS deemed that maintaining a
fins-attached requirement would be critical for several reasons: (1) To
facilitate species identification, (2) to maintain consistency across
all Federally managed shark species, and (3) to maintain consistency
with the U.S. and NMFS international position with regard to shark
conservation and management. A potential NMFS requirement to land
smooth dogfish with fins naturally attached would not prohibit at-sea
processing methods currently in place in most other Atlantic shark
fisheries that maximize meat quality, freshness, and processing
efficiencies. It would remain legal to remove the shark's head and
viscera for proper bleeding. To reduce dock-side processing needs, all
fins could be partially cut at the base and only left attached via a
small flap of skin. NMFS did not add an additional alternative to the
FEIS or this final rule in response to this comment.
Comment 7: NMFS received comments regarding the proposed quota for
smooth dogfish (alternative F2a3). Numerous commenters stated that the
proposed quota was too high for a species lacking a stock assessment
and that has been categorized as near threatened by the International
Union for the Conservation of Nature (IUCN). NMFS also received
numerous comments stating that the proposed quota is too low such as:
In the early 1990s, Virginia alone caught over a million pounds and
North Carolina or New Jersey could easily take the proposed quota
themselves in the next year or two without increasing effort. The
amount of take in the fishery depends on whether the fish are available
when the fishermen go out. The quota needs room for growth since there
are a lot of fishermen targeting smooth dogfish. Several commenters
stated that the data used to determine the quota were flawed since a
lot of people are not reporting on the vessel trip reports (VTRs) and
that NMFS needs to look at all sources and geographic regions
(including the Gulf of Mexico) of mortality including trawl gear. NMFS
also received a comment that NMFS should not set a smooth dogfish quota
the first year and should set quota the second year based on landings
data. The State of Virginia commented that the absence of a
statistically sound time series of landings or any type of analytical
stock assessment for smooth dogfish makes this quota alternative
impractical. Quota-based management requires some current information
on the status (biological) of the stock. The State of Virginia also
noted that there are approximately twelve commercial fishermen that
land in excess of 500 pounds of smooth dogfish during any one year from
2004 through 2008 in Virginia. For the five year period of 2004 through
2008, Virginia's smooth dogfish harvest totaled 2,316,648 pounds. A
total of 1,140,809 pounds were harvested from State waters (49.2
percent) and 1,175,839 pounds from Federal waters (50.8 percent). The
State of South Carolina supports Federal management of smooth dogfish
and the proposed method of determining the annual commercial and
recreational landings, plus the addition of 6 mt ww of smooth dogfish
to the present 60 mt ww quota for all sharks collected in exempted
fishing programs. The State of Georgia supports the quota limit for the
smooth dogfish fishery, since the logic used to calculate the quota
appears sound at this time. The MAFMC states that NMFS commercial
landings data shows zero smooth dogfish landings from Virginia for
1996, while greater than 500,000 lbs are known to have been purchased
by a single Virginia dealer in that year. The MAFMC recommended that
the collection of fishery data through mandatory logbook reporting be
initiated as soon as possible. The data collection will help develop a
stock assessment.
Response: The Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (Pub. L. 109-479) added Section 303(a)(15) to the
Magnuson-Stevens Act which requires all FMPs for Federally managed
fisheries to establish a mechanism for specifying ACLs and to include
AMs to ensure that ACL are not exceeded. The mechanism by which this
requirement is applied to shark fisheries is detailed in Chapter 1 of
the FEIS for Amendment 3, including the necessity to establish an
annual commercial quota. Despite sparse smooth dogfish landings reports
and the lack of a stock assessment, establishing an ACL to prevent
overfishing would be a condition of bringing the species into the HMS
FMP and under Federal management under the Magnuson-Stevens Act.
Inline with the intention to minimize changes to the fishery, NMFS
proposed to establish a quota that would allow current exploitation
levels of smooth dogfish to continue. Although some changes to the
fishery would be necessary, as noted above (e.g., fins naturally
attached), the primary goal of the smooth dogfish portion of this
amendment is to characterize and collect data on the fishery. This goal
necessitates a quota near actual exploitation levels. Due to the lack
of reporting requirements in the fishery, NMFS relied on available data
to estimate current landing levels. Despite the lack of management,
many fishermen in the mid-Atlantic region have been reporting their
landings. Some of these fishermen have Federal permits for other
species and are required to report all landings, including smooth
dogfish, due to the regulations in those other fisheries. Other
fishermen do not have Federal permits and report smooth dogfish
landings voluntarily. These landings, and the number of vessels
reporting these landings, have remained fairly constant since the late
1990s. Existing sources, particularly the Atlantic Coastal Cooperative
Statistics Program (ACCSP) for commercial catches across all gear
types, offer insight into the current State of the fishery. NMFS used
ACCSP data to estimate current landing levels and then used this
estimate to establish an annual quota. In the DEIS, NMFS proposed a
quota equal to the maximum annual landings between 1998 and 2007 plus
one standard deviation in the ACCSP data. Setting the quota higher than
maximum reported landings was intended to account for what NMFS
believes to be significant underreporting due to the lack of smooth
dogfish reporting requirements. During the public comment period,
however, NMFS received numerous comments, as described above, that the
proposed quota does not adequately account for underreporting. Several
States provided State data that also indicated the sources NMFS used
may be underreporting actual landings. Based on these comments and
Southeast Fishery Science Center (SEFSC) advice, NMFS decided to
deviate from the preferred alternative in the DEIS and to identify
alternative F2a4, the quota equal to the annual maximum landings plus
two standard deviations, or 715.5 mt dw (1,577,319 lbs dw), as the
preferred alternative in the FEIS. NMFS believes that setting the quota
at a level that accounts for current landings does
[[Page 30503]]
not threaten smooth dogfish stocks. A review of the reported landings
does not indicate any immediate declining trend, and as noted by one of
the commenters, the average size of landed smooth dogfish is
increasing. Based upon these limited data and observations, there are
few indications that the smooth dogfish stock is overfished and in need
of an immediate reduction in mortality. In fact, based on the limited
data available, smooth dogfish landings appear to have been stable
since the mid-1990s. The IUCN status appears to be based upon the fact
that smooth dogfish have an unknown stock status. The IUCN description
of smooth dogfish notes that there is no stock assessment for the
species. Regardless, NMFS does not rely on IUCN statuses when
developing management measures, but rather uses peer-reviewed stock
assessments and primary literature. Once more data is gathered on this
species, NMFS could complete a stock assessment. NMFS would reassess
the quota at that time and make any necessary changes.
Comment 8: NMFS received several comments relating to the set-aside
quota for research on smooth dogfish. One commenter noted that
Alternative F2b1 provides for a ``set-aside'' quota for an exempted
fishing program. It is appropriate for NMFS to establish this set-
aside, though clearly this set aside should be subtracted from the
total quota and not provided as an additional quota. The State of South
Carolina believes the quota for smooth dogfish landed in exempted
fishing programs is adequate, and notes that they have several public
aquaria and three to four researchers in the State who have permits to
collect sharks. None of those permit holders have expressed concerns to
the State about the proposed quota. The State of Georgia noted that the
set aside amount for the exempted fishing program is reasonable.
Response: NMFS identified the establishment of a separate smooth
dogfish set-aside quota for the exempted fishing program of 6 mt ww as
the preferred alternative in the FEIS. The set-aside quota for the
exempted fishing permit (EFP) program is an important part of any
fishery management plan. The EFP program facilitates research that can
be used to inform management measures and provide data for stock
assessment. Creating a separate and distinct set-aside quota from the
principle quota ensures that research activities do not impede the
commercial or recreational fisheries through quota limitations. As
noted in the previous response, NMFS' intention when establishing the
commercial quota was to set it at a level that would account for all
annual commercial landings. For this reason, it is not prudent to
subtract the set-aside quota from the overall commercial quota. Doing
so would result in a smaller commercial quota that might not fully
account for the current annual commercial landings. In the future,
after performing a stock assessment and characterizing the fishery,
adjustments could be made to the set-aside quota as well as the
commercial quota.
Comment 9: Any differences between the NMFS and ASMFC plans will
complicate smooth dogfish fishing since fishermen will have a difficult
time following the regulations. There must be coordination between
ASMFC and NMFS.
Response: On January 1, 2010, the ASMFC Coastal Sharks FMP, which
includes smooth dogfish measures in Addendum I, was implemented across
most of the Atlantic coast States. The ASMFC plan contains several
measures that differ from NMFS', as detailed in the response to Comment
1 of this section, resulting in a few inconsistencies between the two
plans. NMFS recognizes the importance of consistent regulations between
State and Federal waters for both stock health and ease of compliance.
While complimentary ASMFC and NMFS plans are not possible at this time,
NMFS will continue to work closely with the ASMFC toward similar
management measures and will consider any future changes to the ASMFC
plan to ensure measures are as consistent as possible between State and
Federal waters. As additional data from the fishery becomes available
and the fishery becomes more fully characterized, NMFS will have better
information to inform collaboration and future management measures.
NMFS is aware of and disclosed the potential inconsistencies between
the ASMFC Coastal Shark FMP and Federal management of smooth dogfish
under the Magnuson-Stevens Act in the FEIS.
Comment 10: The State of Virginia noted that having fins attached
would significantly change how the fishery is conducted and smooth
dogfish fishermen would shift all their effort into State waters. By
shifting effort from Federal to State waters, Alternative F2 provokes
an unintended consequence of increasing the likelihood of interaction
between smooth dogfish gear and several stocks of bottlenose dolphin
that spend the majority of the year within State waters.
Response: NMFS recognizes that differences in Federal and State
smooth dogfish regulations could redistribute effort resulting in a
fishery that is no longer equally divided between State and Federal
waters. However, regardless of where fishing activities occur,
protected resource interactions are a concern, and care must be taken
to avoid or minimize impacts on marine mammals and sea turtles. In
Federal waters, smooth dogfish fishermen will be required to abide by
both the gillnet and other requirements in 50 CFR part 635 and with the
regulations implemented under various Take Reduction Plans (TRPs) in 50
CFR part 229 to minimize adverse impacts on protected resources.
Although NMFS does not have jurisdiction over the smooth dogfish
fishery in State waters, Section 118 of the Marine Mammal Protection
Act (MMPA) tasks NMFS in the development and implementation of TRPs to
reduce serious injuries and mortalities of marine mammal populations
incidental to commercial fishing activities. These TRPs have numerous
requirements to minimize impacts on marine mammal populations and are
applicable in both State and Federal waters. The permitting requirement
in the preferred alternative should enhance the ability of smooth
dogfish fishermen to participate in these TRPs. Numerous TRPs exist,
including the Bottlenose Dolphin Take Reduction Plan (BDTRP), which
smooth dogfish fishermen will have to abide by if fishing in Virginia
State waters. Specific regulations pertinent to the BDTRP can be found
at 50 CFR 229.35. Any redistributed effort into Virginia's State waters
affecting bottlenose dolphins will be addressed under the BDTRP or
other applicable TRP.
In addition, NMFS is currently engaged in formal Section 7
consultation in accordance with the ESA, paragraph 7(a)(2), to
determine the potential level of incremental effect that may arise as a
result of the preferred management measures for smooth dogfish in the
FEIS. NMFS has not yet issued a final BiOp for the smooth dogfish
fishery. NMFS will review that BiOp once it is issued and supplement
the analysis in this FEIS if the consultation reveals any new or
significant effects with respect to the interaction between gillnet
fishing for smooth dogfish and protected species that were not
considered in the 2008 BiOp for Amendment 2 to the 2006 Consolidated
HMS FMP. The FEIS incorporated by reference the 2008 BiOp for Amendment
2 to the 2006 Consolidated HMS FMP. A detailed discussion of the
effects of such management relevant to the shark fishery is included in
that document. NMFS does not anticipate any
[[Page 30504]]
substantial change in impact to protected species since the measures
proposed for smooth dogfish management are largely administrative, and
thus unlikely to affect the manner and extent of fishing for smooth
dogfish or redistribution of effort into other fisheries. NMFS assumes
there is a correlation between fishing effort and protected species
interactions. Since smooth dogfish management measures would establish
a quota and permit requirement, fishing effort for smooth dogfish would
be capped or slightly reduced with a corresponding diminishment in the
possibility of increased protected resource interactions. In addition,
increased observer data in the smooth dogfish fishery as a result of a
Federal permit requirement would better characterize protected
resources interactions with the smooth dogfish fishery.
Comment 11: Florida fishermen catch smooth dogfish in the Tortugas
and use them as bait because smooth dogfish are worthless. Gulf of
Mexico fishermen catch them while grouper fishing. If you catch 5,000
lbs of grouper, you might have about 50 lbs of smooth dogfish. The
common length is 12-24'' and they are caught at the top of the
continental shelf. NMFS should not include rules made for the mid-
Atlantic in the Gulf of Mexico. If smooth dogfish are causing problems
in the mid-Atlantic, NMFS should establish separate regulations on
them. Fishermen in the Gulf of Mexico cannot fish for anything without
catching a few smooth dogfish. There are no smooth dogfish fisheries in
the Gulf of Mexico.
Response: Smooth dogfish is a widely distributed species, ranging
from Massachusetts to South America including the Gulf of Mexico and
Caribbean Sea (see Chapter 11 in the FEIS). Despite this wide
distribution, the current fishery is concentrated in the Mid-Atlantic
region, and no reports of commercial landings in the Gulf of Mexico
could be found. Although there are no reported landings of smooth
dogfish in the Gulf of Mexico, research trawls by the SEFSC have shown
that they are present in the region including in Louisiana waters.
Fishermen in the Gulf of Mexico that incidentally catch smooth dogfish,
but do not retain the fish or parts of the fish, will not be required
to abide by Federal smooth dogfish regulations or need to obtain a
smooth dogfish permit.
Under current Atlantic HMS regulations, it is illegal to catch
sharks and use them as bait. If smooth dogfish were under Federal
management, this requirement would apply to smooth dogfish as well. The
known distribution of smooth dogfish, validated by comments such as
this one, necessitates a central, unified management authority of the
species. The fact that a market exists for smooth dogfish, and that
they are regularly encountered in places other than the Mid-Atlantic,
make management measures and data collection in the fishery important.
Even though fishermen do not currently land smooth dogfish in the Gulf
of Mexico, the presence of both the resource and a market means a
fishery could develop in that region, particularly if other more
profitable fisheries are reduced or limited. NMFS did not add an
alternative in the FEIS or this final rule to separate the smooth
dogfish into separate management units or fisheries in response to this
comment.
Comment 12: Why will recreational fishermen be required to have a
smooth dogfish permit? Would the recreational permit for smooth dogfish
be the same as the current HMS recreational permit? Most of the smooth
dogfish are caught incidentally. No one targets smooth dogfish
recreationally. The State of South Carolina notes that few smooth
dogfish are landed in their recreational fishery as that species
primarily occurs off our coast in the winter months when angler effort
is decreased.
Response: Efforts to characterize the smooth dogfish fishery must
include both commercial and recreational fishermen to adequately
estimate effort and catch. As when recreationally fishing for other
Atlantic sharks, smooth dogfish recreational fishermen would need to
obtain an HMS Angling permit and charter/headboats that take smooth
dogfish would need to obtain an HMS Charter/Headboat permit. Those who
already hold this permit will not need an additional permit to fish for
smooth dogfish recreationally.
Comment 13: The State of South Carolina commented that unless
future stock assessments indicate that smooth dogfish are overfished
the current commercial and recreational size and retention limits seem
appropriate.
Response: NMFS agrees that at this time there is no justification
for imposing a size or retention limit for smooth dogfish in the
recreational or commercial fishery. This is inline with the intent to
minimize changes to the fishery while collecting data to characterize
it. Currently, the fishery does not operate under any type of size or
retention limit restrictions. After a stock assessment is completed on
the species, changes could be necessary.
Comment 14: A few commenters noted that the EFH for smooth dogfish
proposed by NMFS looks appropriate. The State of South Carolina agrees
that the occurrence data presented is where dogfish are captured within
U.S. waters. However, the State notes that there is a discontinuity
between the Gulf of Mexico and the Atlantic coast groups (as presented
in Figure 11.1 in the FEIS) that may indicate further investigation of
species characteristics and distribution is warranted.
Response: Identifying and describing EFH for Federally managed
species is a statutory requirement mandated by the Magnuson-Stevens
Act. As detailed in Chapter 11 of the FEIS, NMFS used a variety of
research survey datasets to identify and describe the EFH around
positive smooth dogfish observations. Although NMFS relied on
geographically limited datasets, the resulting EFH designation closely
matches literature descriptions of smooth dogfish distribution,
boosting confidence in the determination. The Northeast Fisheries
Science Center (NEFSC) offered suggestions on available research survey
datasets. Once incorporated in the analyses used in the FEIS, these
datasets contributed to a more robust smooth dogfish designation than
that proposed in the DEIS of Amendment 3. The discontinuity in EFH off
the Georgia and eastern Florida coasts will require further analysis
due to the lack of smooth dogfish data in the area. However, literature
on smooth dogfish distribution also note an absence of the species in
that area. As noted, NMFS incorporated changes to its identification
and description of EFH in the FEIS based on this and similar comments.
Comment 15: NMFS stated in Amendment 3 that there is not sufficient
information for smooth dogfish EFH. If that is the case, why did NMFS
propose EFH?
Response: As noted in the previous response, identifying and
describing EFH for Federally managed species is a statutory requirement
mandated by the Magnuson-Stevens Act. NMFS is confident that the
designated smooth dogfish EFH is accurate, particularly after
incorporating the datasets suggested by the NEFSC. NMFS will continue
to work to ensure that EFH for all HMS species utilizes the best
available information. No changes were made in the FEIS based on this
comment.
Comment 16: NMFS received several comments questioning whether
smooth dogfish is an HMS and should be managed by NMFS or a Regional
Fishery Management Council, such as the MAFMC. Commenters stated that
the Magnuson-Stevens Act defines HMS as an ``oceanic shark'' and asked
if smooth dogfish are oceanic sharks.
[[Page 30505]]
Commenters also asked why spiny dogfish are managed by the MAFMC and
NEFMC. One commenter stated that NMFS should manage smooth dogfish
fisheries since it is the only Atlantic shark species which is
subjected to a targeted fishery that has no Federal management
measures. That commenter also felt a Federal management component would
likely enhance new management efforts by the ASMFC.
Response: The Magnuson-Stevens Act is the primary statute that
authorizes Federal management of fisheries in the U.S. Exclusive
Economic Zone. Regional fishery management councils have authority to
manage species and stocks within their geographic jurisdiction as
established by the Act. However, the Magnuson-Stevens Act gives the
authority to the Secretary to manage stocks or species of highly
migratory species that move across more than one of the five Atlantic
councils' jurisdictions. Provisions of the Act relevant to Secretarial
management of HMS include:
Section 3(21): The term ``highly migratory species'' means tuna
species, marlin (Tetrapturus spp. and Makaira spp.), oceanic sharks,
sailfishes (Istiophorus spp.), and swordfish (Xiphias gladius).
Section 302(3): The Secretary shall have authority over any highly
migratory species fishery that is within the geographical area of
authority of more than one of the following Councils: New England
Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council,
and Caribbean Council.
Section 301(3) (National Standard 3): To the extent practicable,
an individual stock of fish should be managed as a unit throughout
its range, and interrelated stocks of fish shall be managed as a
unit or in close coordination.
Magnuson-Stevens Act Section 3(21) defines HMS. Unlike some other
HMS, sharks mentioned in the definition are not defined by family or
species. Rather, the term ``oceanic shark'' is used. The statute does
not further expound upon or define this term. NMFS, therefore,
considered two major factors in making its determination with respect
to smooth dogfish. First, it considered the life history, habitat,
migratory patterns, occurrence and distribution of the species. Second,
NMFS considered its interpretation in the context of the various
provisions of the Magnuson-Stevens Act applicable to HMS to ensure that
its interpretation was logical and consistent with those provisions.
Given the broad application of the term in conjunction with the
habitat, migratory patterns and geographic distribution of the species,
smooth dogfish is fairly characterized as an oceanic shark consistent
with the structure and application of the Magnuson-Stevens Act. A more
detailed rationale follows.
NMFS examined section 302(3) and section 301(3) (National Standard
3). Both of these sections relate to management authority based on the
distribution of the species. As noted in Chapter 11 of the FEIS, smooth
dogfish inhabit the geographical area of all five Atlantic Regional
Fishery Management Councils, and across international boundaries to
South America and Mexico. Further, smooth dogfish tend to be found
inshore during the warmer months. However, thermally stable, deep
offshore waters are preferred in the colder months (up to 200m) and
Caribbean populations occupy waters deeper than 200m. Data from
research surveys show that smooth dogfish are found along the eastern
seaboard, in the Gulf of Mexico, and in the Caribbean Sea. Based on
these factors, NMFS reasonably concluded that the smooth dogfish is an
oceanic shark and, given its range across multiple Atlantic Regional
Fishery Management Council Jurisdictions, highly migratory. Moreover,
management of smooth dogfish under a single FMP is consistent with the
Magnuson-Stevens Act's mandates for the Secretary to manage highly
migratory species to the extent practicable as a single management
unit. Smooth dogfish is a separate species from spiny dogfish and has
separate management concerns. NMFS is making a determination to manage
and conserve smooth dogfish on its own merits.
Comment 17: Multiple commenters asked who requested Federal smooth
dogfish management.
Response: NMFS received smooth dogfish management requests from
environmental conservation organizations. Furthermore, around the time
of scoping for Amendment 3, both the ASMFC and the MAFMC identified
that smooth dogfish were in need of conservation and management and
began the process of creating management measures. These efforts by the
ASMFC and the MAFMC reinforce the emerging realization that the fishery
is in need of both State and Federal management.
Comment 18: NMFS should work with the small group of fishermen that
fish for smooth dogfish to gather info on the fishery rather than
proposing new requirements.
Response: Although a specialized fishery with perhaps a smaller
number of fishermen than other fisheries, the smooth dogfish fishery
still includes a large number of participants. Within the Vessel Trip
Report (VTR) and Costal Fisheries Logbook databases, an average of 213
vessels per year reported landing smooth dogfish between 2004 and 2007.
This large number of participants makes collaboration with each of the
smooth dogfish participants impracticable. However, under the smooth
dogfish preferred alternative, alternative F2, implementation of
management measures will be delayed until the beginning of the smooth
dogfish fishing season in 2012. This delay will allow NMFS to continue
outreach and have discussions with smooth dogfish participants
regarding the fins attached regulation and will allow fishery
participants time to modify their operation to comply with the
regulations that will be implemented in 2012. A discussion of the
smooth dogfish fishery is included in the FEIS.
Comment 19: NMFS should ensure that smooth dogfish will be
available year round. The January 1 opening for smooth dogfish could be
good for North Carolina, since it is a winter fishery. It would affect
North Carolina fall catch rates if the fishery became quota-limited.
Response: Inline with the intention to minimize changes to the
fishery, NMFS decided to establish a quota that would allow current
exploitation levels of smooth dogfish to continue. NMFS believes that
the established quota is at a sufficient level to prevent quota
limitations if the fishery maintains current landing levels. Because
there are no regional or seasonal restrictions included in the
preferred alternative, the quota should be available year-round, and no
specific region or State will disproportionately benefit from the
quota. NMFS plans to open the fishery each year with a Federal Register
notice that would likely publish near the beginning of each year.
Comment 20: One commenter noted that smooth dogfish fishermen fish
several nets at once, with short soak times. It would change the
fishery if NMFS required the nets to remain attached to the vessel. The
State of South Carolina commented that the smooth dogfish gillnet
fishery has been practiced for some time in North Carolina and the Mid-
Atlantic States. If during this time there have been no or few problems
associated with interactions with endangered or protected species, the
State sees no reason to increase restrictions or change the way the
fishery has historically been conducted. One commenter noted that the
two hour net checks probably would not hurt smooth dogfish fishermen
since the soak time is short. However, fishermen cannot do net checks
with a flashlight looking down into the water because the nets are set
deep. Also, net checks will be difficult to enforce.
[[Page 30506]]
Another commenter stated that NMFS should extend existing gillnet gear
tending requirements to smooth dogfish fishermen, such as requiring
that gillnets be checked at least every two hours and that protected
and prohibited species are released. Gillnets frequently catch non-
target species, including prohibited shark species, marine mammals, and
sea turtles. The nature of the gear makes some level of bycatch nearly
unavoidable.
Response: NMFS agrees that the requirement to keep gillnets
attached to the vessel and to perform net checks could alter how the
smooth dogfish fishery operates. Smooth dogfish fishermen are already
required to and will continue to be required to abide by Federal Take
Reduction Plans specific to the gear type and region of fishing
activity. These plans include the Atlantic Large Whale Take Reduction
Plan, the Bottlenose Dolphin Take Reduction Plan, and the Mid-Atlantic
Harbor Porpoise Take Reduction Plan that include requirements minimize
interactions with protected resources and to ensure those that are
incidentally caught are released in a manner that maximizes survival.
NMFS is currently engaged in formal Section 7 consultation in
accordance with the ESA, paragraph 7(a)(2), to determine the potential
level of incremental effect that may arise as a result of the preferred
management measures for smooth dogfish in the FEIS. NMFS has not yet
issued a final BiOp for the smooth dogfish fishery. NMFS will review
that BiOp once it is issued and supplement the analysis in this FEIS if
the consultation reveals any new or significant effects with respect to
the interaction between gillnet fishing for smooth dogfish and
protected species that were not considered in the 2008 BiOp for
Amendment 2 to the 2006 Consolidated HMS FMP. The FEIS incorporates by
reference the 2008 BiOp for Amendment 2 to the 2006 Consolidated HMS
FMP. A detailed discussion of the effects of such management relevant
to the shark fishery is included in that document. NMFS does not
anticipate any substantial change in impact to protected species since
the measures proposed for smooth dogfish management are largely
administrative, and thus unlikely to affect the manner and extent of
fishing for smooth dogfish or redistribution of effort into other
fisheries. NMFS assumes there is a correlation between fishing effort
and protected species interactions. Since smooth dogfish management
measures would establish a quota and permit requirement, fishing effort
for smooth dogfish would be capped or slightly reduced with a
corresponding diminishment of the possibility of increased protected
resource interactions. In addition, increased observer coverage in the
smooth dogfish fishery as a result of a Federal permit requirement
would better characterize protected resources interactions with the
smooth dogfish fishery.
Under the alternative (F2), identified as the preferred alternative
in the FEIS and selected by NMFS as part of Amendment 3 in the Record
of Decision, the implementation of the management measures would be
delayed until the beginning of the smooth dogfish fishing season in
2012 to allow time to consider and evaluate the information and
requirements included in the final smooth dogfish BiOp. If the
assessment of effects in the BiOp provides new and meaningful
information not considered in this FEIS, NMFS will supplement the FEIS,
as appropriate, before implementing any management measures proposed in
alternative F2. In the interim, NMFS will not impose any management
authority or related conservation and management measures on the smooth
dogfish fishery, and thus will not cause any effect on protected
species related to such management. In other words, the selection of
preferred alternative F2 maintains the status quo with respect to the
smooth dogfish fishery as it relates to protected species prior to
receiving a final BiOp. While NMFS would finalize the rulemaking with
measures for blacknose shark and shortfin mako sharks becoming
effective 30 days after publication of the final rule in the Federal
Register, the measures, if any, selected for management of smooth
dogfish would be deferred to allow NMFS to develop reasonable and
prudent alternatives (RPAs) that could be implemented while avoiding
adverse impacts to listed species, as necessary.
Comment 21: Trawl fishermen skin smooth dogfish at sea and sell
them as steaks.
Response: Under Federal management, trawl fishermen will likely not
be able to continue skinning smooth dogfish at sea, and will not be
able to continue processing the fish into steaks at sea. Smooth
dogfish, like all other Federally managed Atlantic shark species, would
be required to be landed with fins naturally attached to the carcass
under alternative F2, the alternative identified as the preferred
alternative in the FEIS and selected by NMFS as part of Amendment 3 in
the ROD. Trawl fishermen could continue to skin the shark if they can
leave the fins naturally attached to the carcass, but they will be
unable to process the smooth dogfish into steaks at sea. NMFS did not
add an alternative in the FEIS or this final rule in response to this
comment.
Comment 22: NMFS might cause an influx of new fishermen into the
fishery with the new open access permits.
Response: NMFS acknowledges that there may be some fishermen who
will obtain a permit and try to establish a catch history in case the
fishery is changed to limited access at some point in the future. There
may also be some fishermen in areas that do not currently have a smooth
dogfish fishery, such as in the Gulf of Mexico, who may obtain a permit
in the hopes of creating a similar fishery in that region. However,
NMFS does not believe that the creation of a smooth dogfish open access
permit will attract large numbers of new fishermen to the fishery or
cause a large increase in fishing effort. The fishery is currently
unmanaged in Federal waters and operates with few restrictions.
Although NMFS has tried to minimize changes to the fishery, Federal
management does introduce new restrictions, including a requirement to
keep fins naturally attached to the carcass. If fishermen did not
choose to enter the fishery when it was unmanaged, it is unlikely that
Federal management would entice them to enter the fishery now. A
discussion of the socio-economic impacts of bringing the smooth dogfish
fishery under Federal management is included in the FEIS.
Comment 23: NMFS should proceed with a stock assessment for smooth
dogfish throughout their range. The State of Virginia suggested that
pooling resources between ASMFC, NMFS, and MAFMC may expedite the
process.
Response: A stock assessment is important for any fishery
management plan. Knowing the current biomass and how it relates to
Bmsy or to virgin stock biomass informs quota levels and
size and retention limits. NMFS believes that the first step in working
toward a stock assessment is collecting data and characterizing the
fishery. Once NMFS has sufficient data from the fishery a stock
assessment could be done in the future to determine the stock status of
this species. These are the goals of the smooth dogfish measures in the
preferred alternative for Amendment 3 as explained in the FEIS. NMFS
would like to work closely with ASMFC, MAFMC and other interested
parties in conducting a stock assessment.
G. General Comments
Comment 1: Is there a mechanism in place for ASMFC to request that
the
[[Page 30507]]
Secretary implement complementary management measures in the EEZ?
Response: The ASMFC can always offer management recommendations to
NMFS regarding Federally managed species. Furthermore, NMFS included an
alternative in the FEIS to implement smooth dogfish management measures
that mirror ASMFC measures. However, after analyzing the smooth dogfish
measures in place in the 2009 Interstate Coastal Sharks FMP and Smooth
Dogfish Addendum I, NMFS determined that it would likely be unable to
implement many of the management measures due to Magnuson-Stevens Act
and Shark Fining Prohibition Act requirements.
Comment 2: NMFS needs to add deepwater sharks to the list of
prohibited shark species. Deepwater sharks are particularly slow
growing, which makes them vulnerable to overfishing. Related
populations have been severely and rapidly depleted from fisheries in
other parts of the world.
Response: Implementing Federal management of deepwater sharks by
placing them on the prohibited list would not likely have significant
ecological benefits since deepwater sharks are not currently targeted
in any fishery and are only caught as bycatch. Placing this group on
the prohibited list would not prevent bycatch of these species.
Additionally, prohibiting the landing of deepwater sharks would limit
data gained from incidental catches. If prohibited, these rarely
encountered species would have to be released and could not be landed
and submitted for subsequent analysis. Establishing management measures
for deep water sharks is beyond the scope of Amendment 3 and does not
meet the purpose and need described in the DEIS and FEIS. Alternatives
for such measures were therefore not considered in the FEIS.
Comment 3: Deepwater sharks are not commercially important in the
United States for food. NMFS needs to truly understand the fisheries
that interact with deepwater sharks and be able to assess the deepwater
shark stocks accurately, especially if there is a bycatch that is or
could become a secondary market landing and sale.
Response: As noted in the previous response, deepwater sharks are
rarely encountered and only caught as bycatch. NMFS encourages anyone
who catches a deepwater shark to submit the shark to scientists for
research.
Comment 4: We are concerned about the accuracy of some of the
statistics presented on recreational fishery ``harvest.'' For example,
NMFS states that the number of porbeagle sharks that were ``harvested''
by recreational fishermen across all reporting years was zero.
Tournaments regularly target this species and award prizes for landing
them. Additionally, NMFS shows that annual harvest of sand tiger sharks
was zero for the reporting years except for 2001 when 604 were taken
and 2006 when 1,040 were killed. It is hard for us to see how the
recreational fishery took over 1,000 sand tiger sharks in a single
year, more than a decade after they were listed as a prohibited
species. As such, we are concerned about the reliability of the data
used by NMFS as a basis for determining impacts on species.
Response: Collection of recreational fishery catch and effort data
relies on survey methods. Data are collected through a combination of
dockside intercepts and telephone surveys. Since it is not possible to
sample all of the millions of fishing trips taken, recreational surveys
require sampling a representative portion of fishing trips, and then
expanding the results. Recreational harvest estimates for species that
are rarely landed, as is the case with many shark species, are
typically very imprecise using survey methods designed for more
commonly caught species. MRFSS estimates of sharks harvested may also
be inaccurate due to the fact that the MRFSS does not sample at
tournament locations. The NOAA Fisheries Large Pelagics Survey (LPS),
which is conducted from Maine through Virginia, typically produces more
reliable recreational catch estimates for rare event species such as
sharks, tunas, and billfish. However, landings of species such as
porbeagle and sand tiger sharks are still rare events even for the LPS,
and variances can be quite large for these species even with a
specialized survey. Efforts are underway to improve the accuracy and
precision of recreational fisheries data, including estimated catches
of rare event species, through a new data collection initiative called
the Marine Recreational Information Program (MRIP). NMFS believes the
data on recreational harvest, particularly for purposes of SCS species
addressed under Amendment 3, reflects the best scientific information
available at this time. Therefore, recreation harvest data was not
changed in the FEIS in response to this comment.
Comment 5: Sharks need to be available all year and low quotas lead
to regulatory discards. Fishermen do not need a directed shark permit
to sell sharks caught in NC waters.
Response: In Amendment 2 to the 2006 Consolidated HMS FMP, NMFS
implemented a trip limit of 33 non-sandbar LCS with the expectation
that directed shark permit holders would no longer target non-sandbar
LCS and that this reduced trip limit would allow the non-sandbar LCS
quota to last year-round. However, the 2009 non-sandbar fishery opened
on January 23rd and closed on July 1st in the Atlantic and June 6th in
the Gulf of Mexico. Because the non-sandbar LCS seasons only lasted
half of the year, NMFS is currently looking at data and analyzing
management measures that would allow the fishery to remain open for
longer periods during the fishing year. Adjusting seasons and quotas
for non-SCS species is beyond the scope of Amendment 3 and the FEIS,
therefore, NMFS did not propose management alternatives in response to
this comment.
Many States do not have species-specific commercial fishing
permits, and instead rely on a general commercial fishing permit.
Fishermen who fish in State waters must comply with their State's
fishing regulations. Fishermen that have a directed or incidental
Federal shark commercial permit must abide by Federal regulations and
must sell to a Federally permitted dealer when fishing in Federal or
State waters.
Comment 6: The frequency of shark dealer reporting has always
needed to be more frequent than every two weeks. It appears that the
NMFS personnel have a hard time monitoring the various shark landings
as a result of waiting too long.
Response: Frequency of shark dealer reporting requires a balance of
data needs and reporting burdens. More frequent reporting could result
in a reduction in data lags; however, it would significantly increase
the burden of shark dealers. To account for uncertainties such as data
lags, the Magnuson-Stevens Act requires AMs in each fishery to ensure
that ACLs are not exceeded. In the shark fisheries, NMFS employs an AM
whereby the fishery is closed when landings reach, or are expected to
reach, 80 percent. This measure has been effective in ensuring that
data lags do not result in grossly exceeding the quota. NMFS provides
shark landings reports, by complex or species, on a monthly basis to
ensure that participants are aware of catches in the shark fishery.
NMFS is examining changes to the data management structure and may move
toward more real time electronic reporting in the future. However,
these types of data management actions are beyond the scope of
Amendment 3 and alternatives were therefore not proposed in the FEIS in
response to this comment.
[[Page 30508]]
Comment 7: A Count, Cap and Control system for shark management
includes the following: Obtaining sufficient landings and observer data
to accurately and precisely monitor catch (landings + discards) in the
fishery; conducting species-specific stock and fishery assessments;
setting annual catch limits to limit all sources of fishing mortality;
and implementing accountability measures to ensure the ACLs are
respected. Real-time management of quotas, time-area management
measures and bycatch caps should be fully explored in this FMP
amendment. If the agency decides not to use in-season AMs, it must
fully support this decision with a well-defended rationale as to why
in-season AMs are truly impossible, rather than impractical or
incrementally more difficult to administer. The agency should take a
precautionary approach towards administering the remaining quota
designations for the oceanic whitetip and common thresher sharks within
the pelagic shark species group. There are currently no stock
assessments for either the oceanic whitetip or the common thresher
sharks. In the past 10 years, the North Atlantic population of oceanic
whitetip sharks has declined by an estimated 70 percent. NMFS should
reassess their management of pelagic shark species. It is vital that
each pelagic shark species caught by U.S. fishermen have a species-
specific stock assessment and a species-specific quota.
Response: This amendment specifies how NMFS plans to implement
Magnuson-Stevens Act 303(a)(15) requirements for ACLs and AMs. Chapter
1 of the FEIS details the methodology, where the quota is equal to the
landings component of the commercial sector ACL. Additionally, AMs
already in place in the commercial shark fishery will be maintained.
These AMs include restrictions on how to carry over under- and
overharvests and closing the fishery when landings reach, or are
expected to reach, 80 percent. Changes to how NMFS monitors the
landings, introducing time/area closures, or altering bycatch
management are not addressed in this amendment as they do not support
the purpose and need of this rulemaking. Therefore, management
alternatives suggested by this comment were not included in the FEIS.
NMFS has not conducted a stock assessment for oceanic whitetips.
Data may be a limiting factor, as there are limited landings data for
oceanic whitetip sharks. NMFS will continue to work with international
partners and ICCAT towards more species-specific assessments for
pelagic sharks. To date, ICCAT has completed assessments for blue and
shortfin mako sharks. There is scant data available on oceanic whitetip
landings. Again, management of the pelagic shark complex other than
shortfin mako is beyond the scope of Amendment 3 and would not meet the
purpose and need set forth in the FEIS. Therefore, additional pelagic
shark management measures (other than for shortfin mako) were not
included in the FEIS in response to this comment.
Comment 8: NMFS received several comments regarding other shark
species that require management. Specifically, commenters felt that
NMFS should focus on hammerhead and tiger sharks.
Response: This amendment, among other things, focuses on NMFS'
requirement under the Magnuson-Stevens Act to implement a rebuilding
plan and ACLs and AMs in the blacknose shark fishery since this species
is overfished and overfishing is occurring based on the 2007 SCS stock
assessment results. NMFS continually monitors stocks of all species
under its jurisdiction and promptly begins the rulemaking process
should one of these stocks be determined to be overfished or have
overfishing occurring based on the results of a stock assessment. The
LCS complex was assessed in 2006 through the SEDAR process, and this
assessment determined that there was not enough information for a tiger
shark-specific assessment. For this reason, tiger sharks have an
unknown stock status. NMFS is aware of a hammerhead assessment
published in a peer reviewed journal and is reviewing that paper to
determine its appropriateness for use in making stock status
determinations and implementing management measures. Management of
hammerhead and tiger sharks is beyond the scope of Amendment 3 and
would not meet the purpose and need set forth in the FEIS. Therefore,
additional management measures for these species were not included in
the FEIS in response to this comment.
Comment 9: If NMFS is conducting a stock assessment on sandbar in
2010, NMFS should consider the stock north of Virginia that usually is
not included because there is no fishery there. When you shut down the
commercial sandbar shark fishery, you said it was because they were
overfished but there are places you are not assessing.
Response: NMFS uses the best available science and a rigorous SEDAR
assessment process for all sharks species. NMFS held a public data
workshop for the 2005/2006 LCS stock assessment and requested that
participants submit any relevant data or analysis. NMFS included all
the available data that were presented at the data workshop for the LCS
stock assessment, including fishery-dependent and fishery-independent
data from all regions in the Atlantic, Gulf of Mexico and the Caribbean
Sea. Data inputs for the stock assessment are not solely fishery-
dependent, therefore, geographical limitations of the fishery do not
skew the stock assessment results. Management of sandbar sharks is
beyond the scope of Amendment 3 and would not meet the purpose and need
set forth in the FEIS. Therefore, additional management measures for
these species were not included in the FEIS in response to this
comment.
Comment 10: Requiring fins be naturally attached does not work for
SCS. Some dealers are not renewing their permits because they are
afraid of getting in trouble with the requirement. Other dealers do not
have room to process fish on the dock.
Response: NMFS does not believe that the requirement to land sharks
with fins attached is overly burdensome for the following reasons.
First, the requirement to land sharks with fins attached would allow
fishermen to leave the fins attached by just a small piece of skin so
that the shark could be packed efficiently on ice while at sea. Shark
fins could then be quickly removed at the dock or at the dealer without
having to thaw the shark. Second, sharks may be eviscerated, bled, and
the head removed from the carcass at sea. These measures should prevent
excessive amounts of waste at the dock, since dressing (except removing
the fins) the shark may be performed while at sea. Third, while this
requirement would result in some change to the way in which fishermen
process sharks at sea, because the fins can be removed quickly once the
shark has been landed, NMFS expects that the dealers will not require
significantly more room for post-landing processing. Fourth, dealers
have the option to accept or decline certain species, and Federal
regulations would not eliminate that option. For these reasons NMFS did
not propose an alternative for consideration in the FEIS or this final
rule as a result of this comment.
Comment 11: What is happening regarding the legislation in place to
allow flexibility in the Magnuson-Stevens Act and how does that impact
Amendment 3?
Response: NMFS is aware of the Flexibility in Rebuilding American
Fisheries Act of 2009 (HR 1584) sponsored by Rep. Pallone (NJ). The Act
would amend the Magnuson-Stevens Act and alter the rebuilding deadlines
currently in place for overfished stocks. This legislation, however,
has not
[[Page 30509]]
passed either house of Congress, and NMFS is unable to speculate on
whether or not it will ultimately pass. At this time, the Magnuson-
Stevens Act, as it exists after the 2007 reauthorization, is NMFS'
guiding legislation for this amendment.
Comment 12: Is there a possibility of changing the SCS fishery
start date to July 1?
Response: The SCS fishing year runs from January to December. The
actual fishing season starts when NMFS publishes a notice in the
Federal Register. NMFS could delay the opening of the SCS fishing
season if data indicate that it is appropriate to do so. In the
proposed 2010 Shark Season Rule (October 28, 2009, 74 FR 55526), NMFS
proposed to delay the opening of the 2010 SCS shark season until after
the publication of Amendment 3 to the 2006 Consolidated HMS FMP.
Without a delay in the start date, the 2010 SCS fishery would open
under the current quota of 454 metric tons (mt) dressed weight (dw) on
the effective date of the final rule for the 2010 Atlantic shark
specifications. Amendment 3 proposed, among other things, measures to
significantly reduce the non-blacknose SCS and blacknose shark quotas
in order to rebuild and end overfishing of blacknose sharks and also
established a mechanism for implementing ACLs and AMs. A delay would
also allow time for the establishment of ACLs before the start of the
2010 fishing season in addition to ensuring the SCS fishery opens under
the measures that may be established in Amendment 3. Additional
measures to delay the shark season opening are not proposed or
considered in the FEIS as they are beyond the scope of Amendment 3 and
otherwise provided for under existing regulation.
Comment 13: Is NMFS considering catch shares for the shark fishery?
Response: A catch share is the allocation of the available fishery
quota among participants within the fishery. Limited access privilege
programs (LAPPs) are one type of catch share program. These programs
may be implemented to address numerous issues, including but not
limited to: Ending the race for fish, reducing overcapitalization, and
improving efficiency and safety, while still addressing the biological
needs of a stock. These programs can be designed to meet the specific
needs of a fishery, provided they meet the requirements outlined in the
Magnuson-Stevens Act. Catch shares were not considered for the shark
fishery in Amendment 3 and this final rule because of the ramifications
this type of program would have for the existing permit structure and
the time required for implementing these programs.
To properly design a catch share program that appropriately
considers the views and interests of all stakeholders and then
implement such a system would have taken NMFS several years, and
therefore, catch shares were not considered a reasonable alternative
for this action given the mandate in subsection 304(e) of the Magnuson-
Stevens Act to rebuild the blacknose stock in the shortest time
possible and the additional requirement of paragraph 303(a)(15), as
implemented by the National Standard 1 Guidelines, to have a mechanism
for specifying ACLs and AMs in place for stocks experiencing
overfishing by 2010. However, NMFS is considering revisions to the
existing permit structure within HMS fisheries. This could include a
catch share program for sharks as well as other HMS as was discussed
during the September/October 2008 HMS Advisory Panel. NMFS published an
ANPR on June 1, 2009 (74 FR 26174), to initiate broad public
participation in considering catch shares for HMS fisheries. NMFS is
also planning to discuss the future of the shark fishery, including the
possibility of catch shares, at the May 2010 HMS Advisory Panel meeting
in Silver Spring, MD (75 FR 19369, April 14, 2010). Establishing a
catch share program is beyond the scope of Amendment 3 and this final
rule and does not meet the purpose and need set forth in the FEIS.
Catch share options, therefore, were not included or considered in the
FEIS or this final rule.
Comment 14: Blacknose sharks eat newly hatched sea turtles. Your
proposal to rebuild blacknose sharks will impact sea turtle
populations.
Response: NMFS is bound by the Magnuson-Stevens Act requirements to
stop overfishing of blacknose sharks, and to rebuild stocks to a non-
overfished status. The Office of Sustainable Fisheries works closely
with the Office of Protected Resources to ensure actions in the fishery
do not jeopardize the continued existence of protected resources.
Comment 15: Commercial fishing for all shark species should be done
using rod and reel only to reduce bycatch.
Response: Although rod and reel often has reduced bycatch of non-
target species, this gear is not commonly used in the commercial
fishery to target sharks. Gears that are more commonly used in shark
fisheries, such as gillnets and longlines, do have some risk of bycatch
however there are bycatch mitigation measures in place in the Atlantic
shark fishery that reduce interactions and increase post-release
survival of protected resources. Chapter 3 of the FEIS details the
numerous measures in place to minimize bycatch in these fisheries. The
proposal to restrict commercial shark gear to rod and reel was not
included or evaluated in the FEIS or this final rule in response to
this comment.
H. Economic Comments
Comment 1: Fishermen cannot sell sharks anymore. Most sharks used
to go to the Midwest where there was a stable market. Those markets
needed 6 to 8 months of lead time, but that market is gone now. Dealers
will buy some meat ($0.20/lb) because they can resell it as bait.
Response: Permitted commercial shark fishermen are currently
allowed under the regulations to sell authorized shark species to
permitted dealers. NMFS examined the commercial shark fishing revenues
over the past eight years in Chapter 6 of the DEIS and FEIS. Total ex-
vessel revenues from small coastal shark meat has fluctuated between
approximately $535,000 and $823,000 annually over that period with no
discernable pattern.
NMFS provided median real ex-vessel prices for shark species groups
from 2004-2007 in the DEIS and FEIS. The median ex-vessel price for SCS
meat from 2004-2007 was $0.66 per pound dressed weight. NMFS
acknowledges there is significant seasonal and regional variation in
dealer prices. The lowest average ex-vessel median average price was
for smooth dogfish, $0.29 per pound dressed weight, which is similar to
the price the commenter indicated dealers are paying.
Comment 2: Did NMFS look at the monetary figures? If you spread the
small SCS quota across all the permit holders, there is not enough
quota for everyone.
Response: NMFS examined the per vessel impacts of the SCS quotas
across all permit holders in Chapter 8 of the DEIS and FEIS. Based on
data from 2004 to 2007 for directed and incidental shark permit holders
that landed non-blacknose SCS, the average directed shark permit holder
earned $9,427 in average annual gross revenues, and the average
incidental shark permit holder earned $707 in average annual gross
revenues from non-blacknose SCS landings. For those permit holders that
actually landed blacknose shark during that same time period, the
average directed shark permit holder earned $3,640 in average annual
gross revenues, and the average incidental shark permit holder earned
$1,722 in
[[Page 30510]]
average annual gross revenues from blacknose shark landings.
NMFS acknowledges that the availability of SCS quota proposed in
the DEIS would be limited if spread across all permit holders. As
described in the responses above, NMFS made changes to the SCS quotas
based, in part, on the comments received. The preferred alternative in
the FEIS and this final rule for small coastal sharks is now 221.6 mt
versus the 56.9 mt preferred under the DEIS. The preferred alternative
for blacknose shark quota was raised from 14.9 mt under the DEIS to
19.9 mt in the FEIS and this final rule.
Comment 3: Multispecies fishermen need every species they can
catch. The economic impacts on these multispecies fishermen were not
considered.
Response: NMFS examined the cumulative economic impacts of the
proposed rule in Chapter 4 of the DEIS and FEIS.
Comment 4: The fins attached rule decreased effort on SCS because
it is too much work processing the sharks twice in hot weather. Prices
are lower for SCS because requiring fins remain attached to the carcass
decreased the quality due to increased processing time.
Response: NMFS acknowledges that requiring fins remain attached to
the carcass could decrease the quality of the product due to increased
processing time. However, as described above, NMFS does not believe the
requirement is overly burdensome. Additionally, other factors, such as
market demand and decreased supplies, might also affect prices. NMFS
will examine the impacts that leaving fins on sharks is having on
prices for SCS as information becomes available.
Comment 5: Shortfin mako sharks are a significant secondary bycatch
for the U.S. pelagic longline fishing fleets from Maine to Texas. Like
most sharks this is a shared resource with other countries. NMFS is
unilaterally proposing to hurt U.S. fishermen first with economic
impacts.
Response: NMFS acknowledges that shortfin mako shark is often a
bycatch species in other fisheries in the United States. The
alternatives selected for the commercial shortfin mako shark fishery
will not change the current retention limits for U.S. fishermen at this
time. NMFS will promote the live release of shortfin mako sharks, but
will not make it mandatory for the fishery. NMFS has decided to take
action at the international level to end overfishing of shortfin mako
sharks through participation in international fisheries organizations
such as ICCAT. While these approaches could impact U.S. fishermen
economically before it impacts fishermen in other countries, neither of
these measures are expected to have a significant economic impact on
U.S. commercial fishermen.
Comment 6: The preferred alternative that would eliminate the
recreational fishery is, in fact, an allocation decision that gives 100
percent of the blacknose shark TAC to the commercial sector. There are
no analyses of the economic benefits to the nation associated with this
allocation. Such an economic analysis is required.
Response: Blacknose sharks rarely reach a size greater than the
current Federal minimum size; therefore, the current 54 inch FL size
limit creates a de facto retention prohibition of blacknose sharks in
Federal waters. As discussed in the DEIS and FEIS, NMFS determined that
prohibiting the retention of blacknose sharks in the recreational
fishery under alternative D4 could have some negative social and
economic impacts on recreational fishermen, including tournaments and
charter/headboats, if the prohibition of blacknose sharks resulted in
fewer charters. However, since blacknose sharks are not one of the
primary species targeted by recreational anglers, in tournaments or on
charters and they rarely reach a size greater than the current Federal
minimum size, NMFS estimates limited negative social and economic
impacts from alternative D4 on recreational anglers, tournaments, or in
the charter/headboat sector.
In the FEIS, alternative D1 was the preferred alternative because
the effect is the same as prohibiting the retention of blacknose
sharks, thereby contributing to the rebuilding of the species. As
described above, NMFS received comments from States describing their
own management in State waters. Thus, NMFS chose to prefer and select
this alternative rather than the previously preferred alterative,
alternative D4.
Comment 7: A few commenters, including the State of Virginia, noted
that there is no indication that finning has been, is, or is likely to
become a problem in the smooth dogfish fishery because of the economics
of the fishery. The State of Virginia notes that the smooth dogfish
fishery subsists as a high volume and labor intensive endeavor, as a
typical whole round weight of 1,000 pounds contains 200 to 250
individual dogfish. In a typical processed catch of smooth dogfish, the
dockside value of the fins represents 20 to 30 percent of the price
paid to fishermen for their total catch, and fishermen return dockside
with meat and fins in separate containers. Delaying the removal of fins
and tail until landing would result in decreased marketability. Smooth
dogfish are harder than other species to extract from the net, butcher
and clean, with the result that labor costs represent a higher
percentage of the total value of the product. Cutting fins at sea is
important practically to the fishery in order to maintain proper
product freshness. In the absence of processing, there would be a loss
of profitability to the industry because of the increased labor with
re-handling each carcass.
Response: NMFS agrees that processing smooth dogfish is likely a
labor intensive operation. While the delay in the removal of fins and
tails until landing could reduce the quality and marketability of
smooth dogfish, it is unclear whether any decreases in ex-vessel prices
would exceed potential cost savings from reduced labor needs at sea
associated with finning on the vessel. There would potentially be an
increase in operating costs for dealers if they end up processing the
fins from the smooth dogfish carcasses.
Comment 8: If NMFS set the smooth dogfish quota at 1,423,728 lb dw,
we may not reach it very often but there would be years when we do. The
pricing is dependent on the international market (years when the price
is high, the quota will go fast).
Response: The proposed smooth dogfish quota was selected in order
to accommodate average fishing levels. The 1,423,728 lb dw quota is
equal to the maximum annual landings between 1998-2007 plus one
standard deviation. NMFS acknowledges that in rare years, this quota
might constrain the fishery. In part to address this issue, NMFS added
an additional alternative to the FEIS where the smooth dogfish quota
would be set equal to the maximum annual landings from 1998-2007 plus
two standard deviations (1,577,319 lb dw). This new preferred
alternative, which was selected by NMFS, should accommodate the
potential few years were the smooth dogfish quota may exceed 1,423,728
lb dw.
NMFS is also aware that international markets may impact the
pricing of domestic smooth dogfish. However, NMFS does not currently
have sufficient data on the fishery to model the degree to which high
international prices may increase domestic landings of smooth dogfish.
Comment 9: There is little or no fin value for smooth dogfish.
Response: The median ex-vessel price for smooth dogfish fins was
estimated to be $2.02 per pound between 2004 and 2007. Based on ACCSP
data from 1998-2007, in the commercial fishery an
[[Page 30511]]
average of 1,321,695 lb ww of smooth dogfish were retained per year. Of
this total, NMFS estimates 47,543 lb of fins would be available for
sale per year. Using the median ex-vessel price of these products
between 2004 and 2007 ($2.02 for smooth dogfish fins), the fishery
averaged $96,037 in value per year.
Changes From the Proposed Rule (74 FR 36892, July 24, 2009)
NMFS has made several administrative changes in the final rule. In
addition, responding to comments from the public and others on the
proposed rule, NMFS has made several substantive changes in the final
rule consistent with changes made between the DEIS and Draft Amendment
3 and the final version of those documents. These changes are outlined
below.
1. Gillnet gear. In the proposed rule, NMFS proposed to remove the
authorization to use gillnet gear south of North Carolina. Due, in
part, to public comments, NMFS is maintaining the current
authorizations for gillnet gear, in the final rule. As such, all
references to removal of gillnet gear have been removed and the current
requirements remain. Additionally, as was proposed, NMFS is removing
Sec. 635.5(a)(4), which required shark gillnet vessels to contact NOAA
Fisheries if a whale is taken. While NMFS proposed to remove this
paragraph partly due to the proposed removal of the authorization of
gillnet gear, in this final rule NMFS removes this paragraph because it
is redundant to a reporting requirement under section 229 under the
Marine Mammal Protection Act. NMFS is maintaining the requirement that
shark gillnet vessels that take a whale must stop fishing immediately
(previously Sec. 635.21(e)(3)(v)).
2. Smoothhound sharks. For various reasons, as described in
Amendment 3 and above, NMFS is delaying the implementation of the final
actions for smooth dogfish until the start of the 2012 fishing season.
As a result, many of the sections of the regulations were re-ordered
and, in some cases, re-worded to ensure that requirements for smooth
dogfish were separate paragraphs at the end of each section.
Additionally, to reduce confusion with the spiny dogfish regulations
and to more accurately describe both smooth dogfish and Florida
smoothhound sharks, the final regulations changes the name of the
complex containing these two species, and any references to this
complex, to ``smoothhound sharks'' from ``other sharks.''
3. Trawl gear. Additional analyses since the DEIS show that
fishermen using trawl gear interact with and land smooth dogfish
incidental to other species. As such, NMFS intends to allow fishermen
using trawl gear to land smoothhound sharks incidentally. However, NMFS
is still considering the most appropriate way to allow for this
activity and will finalize a decision on this issue in a separate
action.
4. Sec. 635.22(c). Due, in part, to public comment, NMFS will no
longer prohibit the retention of blacknose sharks by recreational
fishermen. As a result, blacknose sharks continue to be on the list of
species that may be retained by anglers. The current minimum size and
bag limits will still apply.
5. Sec. 635.27(b)(1). As a result of public comment and additional
analyses, NMFS modified the final quotas and retention limits for non-
blacknose SCS, blacknose sharks, and smooth dogfish sharks. These
modifications are reflected in this section.
Commercial Fishing Season Notification
Pursuant to the measures being implemented in this final rule, the
blacknose shark baseline quota is 19.9 mt dw and the non-blacknose SCS
baseline quota is 221.6 mt dw. As of March 31, 2010, less than 0.1 mt
dw of SCS have been reported to NMFS (105 lb dw of blacknose and 56 lb
dw of non-blacknose SCS). Given these low levels of landings, the
baseline quotas for 2010 have not been adjusted. Rather, these
landings, along with any additional landings that occur before the
opening of the fishing season, will be counted against the quota during
the 2010 fishing year. As such, the 2010 blacknose shark quota is 19.9
mt dw and the 2010 non-blacknose SCS quota is 221.6 mt dw.
The 2010 Atlantic commercial shark fishing season for non-blacknose
SCS and blacknose in the northwestern Atlantic Ocean, including the
Gulf of Mexico and the Caribbean Sea, will open on June 1, 2010.
The non-blacknose SCS and blacknose fisheries will remain open
until December 31, 2010, unless NMFS determines that the fishing season
landings of non-blacknose SCS or blacknose sharks has reached, or is
projected to reach, 80 percent of the available quota. If that occurs,
consistent with 50 CFR 635.28(b), NMFS will file for publication with
the Office of the Federal Register a notice of closure for both non-
blacknose SCS and blacknose sharks that will be effective no fewer than
5 days from date of filing. From the effective date and time of the
closure until NMFS announces, via a notice in the Federal Register,
that additional quota, if any, is available, the blacknose and non-
blacknose SCS fisheries will remain closed, even across fishing years,
consistent with 50 CFR 635.28(b).
Classification
The Assistant Administrator for Fisheries determined that the
Amendment 3 to the Consolidated HMS FMP is necessary for the
conservation and management of the Atlantic HMS shark fishery and that
it is consistent with the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable laws.
NMFS prepared an FEIS for this FMP amendment. The FEIS was filed
with the Environmental Protection Agency on March 12, 2010. A notice of
availability was published on March 19, 2010 (75 FR 13275). In
approving the FMP amendment on May 18, 2010, NMFS issued a Record of
Decision (ROD) identifying the selected alternatives. A copy of the ROD
is available from NMFS (see ADDRESSES).
This final rule has been determined to be not significant under EO
12866.
Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator waives
the 30-day delayed effectiveness for this action as several measures in
this final action relieve restrictions. The waiver of the 30-day delay
would only apply to the opening of the blacknose and non-blacknose SCS
fisheries and the associated commercial quotas (sections
635.27(b)(1)(i)-(v) and 635.28(b). All other measures in this final
action would go into effect at least 30 days after publication of the
final rule in the Federal Register. The smoothhound shark measures in
this action will not be effective until the start of the fishing season
in the 2012.
The small coastal shark fishery closed on December 31, 2009, and,
under normal circumstances, would have opened for the 2010 fishing year
upon the effectiveness of the final rule for the 2010 Atlantic shark
season specifications (75 FR 250, January 5, 2010). However, due to the
anticipation of measures in this final rule, particularly those
measures that change the SCS quotas and implement a rebuilding plan for
blacknose sharks, NMFS made the decision in the 2010 Atlantic shark
season specifications to keep the 2010 SCS fishing season closed until
the effective date of this final rule. The current closure of the SCS
fisheries is occurring during the time period when SCS fishermen
typically fish for SCS species, and therefore, fishermen are
experiencing negative economic impacts that will continue until the
fishery opens. This final action would
[[Page 30512]]
relieve a restriction by allowing SCS fishermen to fish for blacknose
sharks and non-blacknose SCS under the new commercial quotas, providing
economic benefits to fishermen, dealers and others that rely on SCS
products.
Paperwork Reduction Act
This final rule will require commercial and recreational fishermen
fishing for smooth dogfish to obtain a smoothhound permit authorizing
landings of smooth dogfish. This requirement is considered a
collection-of-information requirement and is subject to review and
approval by OMB under the PRA. NMFS has not yet submitted an
application for this collection-of-information to OMB for approval. The
implementation of this requirement is delayed pending approval. Once
the application is submitted, comments regarding the public burden
estimates or any other aspect of this data collection, including
suggestions for reducing the burden, should be sent to NMFS (see
ADDRESSES) and by e-mail to [email protected], or fax to 202-
395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
Coastal Zone Management Act
The Coastal Zone Management Act (CZMA) requires that Federal agency
activities be consistent to the maximum extent practicable with the
enforceable policies of Federally-approved State coastal management
programs (CMPs). NMFS has determined that the final and selected
alternatives in this final rule and Amendment 3 will be implemented in
a manner consistent to the maximum extent practicable with the
enforceable policies of the coastal States in the Atlantic, Gulf of
Mexico, and Caribbean that have Federally approved CMPs. In July 2009,
NMFS provided all coastal States along the eastern seaboard and the
Gulf of Mexico (21 States), including Puerto Rico and the U.S. Virgin
Islands with a copy of the proposed rule and draft EIS for Amendment 3
to the Consolidated HMS FMP. Under 15 CFR 930.41, States and/or U.S.
territories have 60 days to respond after the receipt of the
consistency determination and supporting materials. States can request
an extension of up to 15 days. If a response is not received within
those time limits, NMFS can presume concurrence (15 CFR 930.41(a)).
Seven States replied within the response time period that the proposed
regulations were consistent, to the extent practicable, with the
enforceable policies of their CMPs (Connecticut, New Jersey,
Pennsylvania, Delaware, Virginia, Mississippi, and Puerto Rico).
Another ten States (Maine, New Hampshire, Rhode Island, Massachusetts,
New York, Maryland, South Carolina, Alabama, Louisiana, and the U.S.
Virgin Islands) did not respond within the response time period, nor
did they request an extension in the comment period; therefore, NMFS
presumes their concurrence. The State of Florida, the State of Georgia,
and the State of North Carolina replied that the proposed rule was not
consistent with the enforceable policies of their respective State's
coastal zone management program.
A. Response to the State of Florida
The State of Florida in an October 9, 2009, letter stated that the
recreational SCS preferred alternative in the DEIS, Alternative D4, was
not consistent with the State's enforceable policies because the State
already has in place adequate protection of blacknose sharks in State
waters. As described above, based on public comment and because the No
Action alternative is effectively the same as a prohibition of
blacknose sharks due to the current 54 inch size limit in the
recreational fishery, NMFS no longer prefers alternative D4 in the
FEIS. The preferred alternative in the FEIS and this final rule is D1,
the status quo alternative. The letter from the State of Florida noted
that if NMFS changed the preferred alternative to D1, Amendment 3 would
be consistent with the State's CMP. Therefore, NMFS considers the
actions in the FEIS to be consistent with the State of Florida's CMP.
B. Response to the State of Georgia
In a September 10, 2009, letter, the State of Georgia stated that
Georgia Department of Natural Resources (GDNR) had determined that the
provisions in the draft Amendment 3 to the Consolidated HMS FMP
(Amendment 3) are conditionally consistent with the Georgia Coastal
Management Program (GCMP) to the maximum extent practicable. This
determination is conditional upon the preferred alternatives included
in the FEIS for Amendment 3. To be consistent with the GCMP, the letter
maintains that the preferred alternatives must include: A4 and B3
(reduced blacknose shark quota and a prohibition on gillnets in the
southern shark fishery); C5, C6, E3, and E4 (international shortfin
mako shark management measures and encouraging the live release of
shortfin mako sharks); D1 (the No Action alternative with respect to
the recreational blacknose shark fishery); and F2 (bring smooth dogfish
under Federal management). Thus, with the exception of alternatives A4
and B3, all of the final action in the FEIS of Amendment 3 and this
final rule are supported by GDNR.
As detailed in Chapters 2 and 4 of the FEIS for Amendment 3, NMFS
altered the preferred alternative in the FEIS and this final rule to
maintain the current blacknose shark recreational size and retention
limits (D1) and to allow gillnet gear in all areas of the Atlantic
shark fishery. Based upon public comment, revised SEFSC blacknose shark
weight data, observer data, and additional gillnet selectivity
analyses, NMFS changed the preferred alternatives in the FEIS to
include A6 and B1 rather than A4 and B3. These two preferred
alternatives will establish the blacknose shark quota at 19.9 mt dw,
maintain a non-blacknose SCS quota at average current landings, and
continue to authorize gillnet gear in the southern shark fishery. Due
to the change of the commercial gear preferred alternative, the State
of Georgia objects to the consistency determination because of the
continuing operation of the shark gillnet fishery in Federal waters,
which could potentially impact resources shared by adjacent State
waters. Additionally, the State of Georgia has concerns regarding the
impact of the shark gillnet fishery on threatened and endangered
species. The data currently available for the shark gillnet fishery
indicate low rates of bycatch and bycatch mortality of protected
species and other finfish in this fishery compared to other HMS
fisheries (see Chapter 3 the FEIS).
While NMFS acknowledges the concern of protected resources
interactions with gillnet gear, under the Magnuson-Stevens Fishery
Conservation and Management Act's (16 U.S.C. 1801 et seq.) National
Standards (NS), the Agency must, among other things, implement
conservation and management measures to prevent overfishing while
achieving, on a continuing basis, the optimum yield from each fishery;
base its actions upon the best scientific information available; manage
stocks throughout their range to the extent practicable; minimize
adverse economic impacts on fishing communities to the extent
practicable; and minimize bycatch and bycatch mortality to the extent
practicable. 16 U.S.C. 1851(a)(1), (2), (3), (8), and (9). In the
preparation of the FEIS, NMFS
[[Page 30513]]
performed an analysis on the SCS gillnet fishery using updated average
blacknose shark weights from the SEFSC and observer data. This analysis
concluded that SCS gillnet fishermen were able to selectively target
certain SCS species while avoiding blacknose sharks. Furthermore, when
the shark gillnet fishery catches blacknose sharks, they are usually
larger, more mature individuals than those caught in other gears. These
two findings, in concert, make for less significant ecological benefits
of prohibiting gillnets than previously believed. The significant
adverse economic and social impacts resulting from a geographical ban
on gillnets in the shark fishery outweigh the ecological benefits to
blacknose sharks. Therefore, NMFS is not prohibiting the use of gillnet
gear at this time. This finding is consistent with NS 2 which requires
that management measures be based on the best scientific information
available including the BiOp. Based on this information and combined
with the Magnuson-Stevens Act legal requirements noted in this
paragraph, under the CZMA and NOAA regulations, NMFS is consistent to
the maximum extent practicable with Georgia's CMP enforceable policies.
On May 5, 2008, NMFS' Southeast Regional Office of Protected
Resources Division completed a BiOp regarding the actions under
Amendment 2 to the Consolidated HMS FMP. The BiOp, concluded that the
continued authorization of the gillnet fishery was likely to adversely
affect, but not likely to jeopardize the continued existence of, green,
Kemp's ridley, leatherback, and loggerhead sea turtles and smalltooth
sawfish. The opinion also concluded that marine mammals, the Gulf of
Maine Atlantic salmon Distinct Population Segment (DPS), shortnose
sturgeon, Gulf sturgeon, and right whale critical habitat were not
likely to be adversely affected by the action. The Atlantic shark
fishery continues to be in compliance with the terms and conditions of
the ITS in the 2008 BiOp. The SCS measures in Amendment 3 are expected
to reduce fishing effort and reduce the fishery's impact on ESA-listed
species in the action area.
Currently, all shark gillnet vessels are required to carry a vessel
monitoring system (VMS) and are subject to observer coverage during and
outside of the right whale calving season. In addition, more stringent
management measures were put in place under a final rule for the
Atlantic Large Whale Take Reduction Plan (ALWTRP) (72 FR 34632, June
25, 2007) that prohibits all gillnet fishing from November 15 through
April 15 of each year in Federal waters off Georgia. NMFS will continue
to work with existing take reduction teams and relevant Fishery
Management Councils to examine methods of reducing bycatch. Thus, NMFS
finds that the final regulations implemented in this amendment are
consistent with Georgia's CMP to the maximum extent practicable.
At this time, there is not sufficient information to support a
closure of the shark gillnet fishery in Federal waters adjacent to
Georgia, pursuant to the CZMA. This decision is consistent with NS 2 of
the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.), which requires that
management measures be based on the best scientific information
available including the BiOp. NMFS has determined that the final
actions in Amendment 3 and its implementing rule are consistent to the
maximum extent practicable with the enforceable policies of the GCMP.
C. Response to the State of North Carolina
The State of North Carolina in a September 15, 2009, letter stated
that the provisions in Amendment 3 will only be consistent with the
State's enforceable policies if NMFS selects alternatives A2 and F1 in
the DEIS as the preferred alternatives in the FEIS. The State of North
Carolina determined that any alternative other than A2 in the DEIS
would disproportionately impact the State by removing fair and
equitable distribution of SCS quota. As detailed in Chapter 2 of the
FEIS, NMFS has changed the preferred alternative in the FEIS to allow
for a restricted blacknose quota, but a higher non-blacknose SCS quota
that is equal to the average annual landings of the non-blacknose SCS.
The preferred alternative in this FEIS, alternative A6, includes a
higher blacknose shark quota (19.9 mt dw) than that favored by the
State of North Carolina (13.5 mt dw). The non-blacknose shark SCS quota
in alternative A6 (221.6 mt dw) is not as high as that favored by the
State of North Carolina (392.5 mt dw) but it is equal to the average
annual landings and should not change the distribution of SCS quota.
In the preparation of the FEIS for Amendment 3, NMFS performed an
analysis on the SCS gillnet fishery using updated average blacknose
shark weights from the SEFSC and observer data. This analysis concluded
that SCS gillnet fishermen were able to selectively target certain SCS
species while avoiding blacknose sharks. Furthermore, when the shark
gillnet fishery catches blacknose sharks, they are usually larger, more
mature individuals than those caught in other gears. These two
findings, in concert, make for less significant ecological benefits of
prohibiting gillnets than previously believed. The significant negative
economic and social impacts resulting from a geographical ban on
gillnets in the shark fishery outweigh the ecological benefits to
blacknose sharks. For these reasons, NMFS is not prohibiting the use of
gillnet gear at this time. This finding is consistent with NS 2 which
requires that management measures be based on the best scientific
information available including the BiOp. Therefore, NMFS believes the
preferred alternative in the FEIS is consistent with the State of North
Carolina's CMP policies based on the higher non-blacknose SCS quota.
The State of North Carolina also determined that the smooth dogfish
preferred alternative, Alternative F2, was inconsistent with the
State's enforceable policies. The State's letter maintained that any
alternative other than F1 would be inconsistent because the
implementing measures would be contrary to the measures in State waters
and ASMFC smooth dogfish measures, particularly in a fishery that
primarily occurs in State waters. Based upon a July 6, 2009, memo to
the ASMFC, data from North Carolina's Trip Ticket program shows that
the smooth dogfish fishery is almost equally divided between State and
Federal waters off the North Carolina coast with 46 percent of the
catch occurring in Federal waters. NMFS recognizes that some of the
smooth dogfish measures included in the FEIS are inconsistent with the
ASMFC plan. However, NMFS decided not to mirror the ASMFC smooth
dogfish measures because the ASMFC plan contains some provisions that
NMFS cannot implement and does not include others that NMFS must
implement.
On May 6, 2009, the ASMFC approved a smooth dogfish Addendum to the
Atlantic Coastal Sharks FMP for public comment. Included within this
Addendum is an exception for smooth dogfish to allow at-sea processing
(i.e., removal of shark fins while still onboard a fishing vessel),
removal of recreational retention limits for smooth dogfish, and
removal of the two hour net-check requirement for shark gillnets. The
at-sea processing would require a five-percent fin to carcass ratio but
would allow for the removal of fins at sea. The allowance for the
removal of shark fins while still on board a fishing vessel and the
removal of the two hour net-check requirement is inconsistent with
current Federal regulations. NMFS considers the requirement to maintain
shark fins
[[Page 30514]]
naturally attached through offloading to be necessary for species
identification and to prevent shark finning. NMFS recently implemented
the fins naturally attached regulation for all Atlantic sharks for
enforcement and species identification reasons and would not want to
open a loophole that would hinder enforcement. ASMFC has not
established a quota for the smooth dogfish fishery and, as noted above,
NMFS is required to establish ACLs and AMs under the Magnuson-Stevens
Fishery Conservation and Management Act. In addition, ASMFC has not
established a permitting requirement. NMFS believes that permitting is
the first step to gaining information about the fishery and quantifying
the universe of participants. Nonetheless, NMFS will continue to work
with ASMFC to ensure Federal and State regulations are consistent to
the extent practicable. Based on NMFS' existing legal requirements,
NMFS is consistent with NC CMP enforceable policies to the maximum
extent practicable.
During the DEIS public comment period, the smooth dogfish fishery
participants noted significant concern regarding the fins attached
requirement. NMFS believes that requiring that fins remain attached to
the carcass is an important component of shark management. However, in
order to mitigate potential impacts to the smooth dogfish fishery
participants, NMFS is delaying implementation of the management
measures in the preferred alternative until the beginning of the
fishing season in 2012. The delayed implementation will allow NMFS time
to continue outreach efforts with fishery participants and work with
ASMFC to ensure that Federal and State regulations are consistent to
the extent practicable.
For these reasons, NMFS finds the preferred alternatives in the
FEIS, alternatives A6 and F2, to be consistent to the maximum extent
practicable with the enforceable policies of the State of North
Carolina's CMP.
Biological Opinion for Smooth Dogfish
The NMFS Southeast Regional Office Protected Resources Division
(SERO PRD) has initially determined that management of smooth dogfish
may adversely affect ESA-listed species including but not limited to
endangered marine mammals such as the blue whale, fin whale, humpback
whale, northern right whale, sei whale, and sperm whale; endangered sea
turtles such as Hawksbill, Kemp's ridley, and leatherback; threatened
sea turtles such as loggerhead and olive ridley; the endangered and
threatened green sea turtle; and the endangered smalltooth sawfish.
Based on this determination, NMFS initiated formal Section 7
consultation in accordance with the ESA, paragraph 7(a)(2), and
provided SERO PRD with the information required by 50 CFR 402.14(c). As
such, NMFS is currently engaged in formal consultation under the ESA
with SERO PRD to determine the potential level of incremental effect
that may arise as a result of the preferred management measures for
smooth dogfish in this final rule. SERO PRD has not yet issued a final
BiOp for the smooth dogfish fishery. NMFS will review that BiOp once it
is issued and supplement the analysis in the FEIS if the consultation
reveals any new or significant effects with respect to the interaction
between gillnet fishing for smooth dogfish and protected species that
were not considered in the 2008 BiOp for Amendment 2 to the 2006
Consolidated HMS FMP. This final rule incorporates by reference the
2008 BiOp for Amendment 2 to the 2006 Consolidated HMS FMP. A detailed
discussion of the effects of such management relevant to the shark
fishery is included in that document. NMFS will not take any management
action with respect to the smooth dogfish fishery prior to its receipt
of a final BiOp. It will maintain the status quo for management of the
species prior to completion of formal Section 7 consultation and
receipt of a final BiOp.
Summary of the Final Regulatory Flexibility Analysis
A final regulatory flexibility analysis (FRFA) was prepared for
this rule. The FRFA incorporates the Initial Regulatory Flexibility
Analysis (IRFA), a summary of the significant issues raised by the
public comments in response to the IRFA, and NMFS responses to those
comments, and a summary of the analyses completed to support the
action. The full FRFA is available from NMFS (see ADDRESSES). A summary
is provided below.
A. Statement of the Need for and Objectives of the Final Rule
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires
a succinct statement of the need for and objectives of the rule.
Chapter 1 of the FEIS fully describes the need for and objectives of
this final rule. In brief, the management goals and objectives of the
preferred management measures are to provide for the sustainable
management of shark species under authority of the Secretary consistent
with the requirements of the Magnuson-Stevens Act and other statutes
which may apply to such management, including the ESA and MMPA. The
primary mandate of the Magnuson-Stevens Act is for the Secretary to
provide for the conservation and management of Atlantic HMS through
development of an FMP for species identified for management and to
implement the FMP with necessary regulations. In addition, the
Magnuson-Stevens Act directs the Secretary, in managing HMS to prevent
overfishing of species while providing for their OY on a continuing
basis and to rebuild fish stocks that are considered overfished. The
management objectives of the preferred management measures are to amend
the 2006 Consolidated HMS FMP to ensure that overfishing of both the
blacknose shark and shortfin mako is ended, the blacknose shark stock
is rebuilt, and smooth dogfish is brought under the management
jurisdiction of the Secretary.
B. A Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA
Section 604(a)(2) of the RFA requires a summary of the significant
issues raised by the public comments in response to the IRFA, a summary
of the assessment of the Agency of such issues, and a statement of any
changes made in the rule as a result of such comments. NMFS received
many comments on the proposed rule and draft Amendment 3 during the
public comment period. A summary of these comments and the Agency's
responses, including changes as a result of public comment, are
included above. For general economic comments, see section H in
``Responses to Comments.'' NMFS did not receive comments specifically
on the IRFA.
C. A Description and an Estimate of the Number of Small Entities to
Which the Rule Will Apply
Section 604(a)(3) of the RFA requires a description and estimate of
the number of small entities to which the final rule would apply. NMFS
considers all HMS permit holders to be small entities because they
either had average annual receipts less than $4.0 million for fish-
harvesting, average annual receipts less than $6.5 million for charter/
party vessels, 100 or fewer employees for wholesale dealers, or 500 or
fewer employees for seafood processors. These are the Small Business
Administration (SBA) size standards for defining a small versus large
business entity in this industry.
The preferred management measures would apply to the 502 commercial
shark permit holders in the Atlantic shark fishery based on an analysis
of permit holders on March 18, 2009. Of
[[Page 30515]]
these permit holders, 223 have directed shark permits and 279 hold
incidental shark permits. Not all permit holders are active in the
fishery in any given year. NMFS estimates that between 2004 and 2007,
approximately 85 vessels with directed shark permits and 31 vessels
with incidental shark permits landed SCS. A further breakdown of these
permit holders is provided in Amendment 3.
The recreational measures proposed would also impact HMS Angling
category and HMS Charter/Headboat category permit holders. In general,
the HMS Charter/Headboat category permit holders can be regarded as
small businesses, while HMS Angling category permits are typically
obtained by individuals who are not considered small entities for
purposes of the RFA. In 2008, 4,837 vessels obtained HMS Charter/
Headboat category permits. Table 3.27 of Amendment 3 provides the
geographic distribution of these permit holders by State and the
overall historic trend in the number of permit holders since 2006. It
is unknown what portion of these permit holders actively participate in
shark fishing or market shark fishing services for recreational
anglers.
Finally, the final action to add smooth dogfish under NMFS
management and develop management measures, such as a Federal permit
requirement, would impact an additional group of small entities. The
number of entities impacted by this final action cannot be precisely
measured at this time, since there is currently no Federal permit
requirement for smooth dogfish fishing. Utilizing VTR and Coastal
Logbook data, an estimate of the number of participants in the
commercial smooth dogfish fishery can be calculated. Within the VTR
data, a primarily Northeast U.S. reporting system, an average of 213
vessels reported smooth dogfish landings per year between 2004 and
2007. Within the Coastal Logbooks data, a primarily Southeast U.S.
reporting system, an average of 10 vessels reported smooth dogfish
landings per year between 2004 and 2007. From these data, an estimated
223 commercial vessels would require a smooth dogfish permit.
To estimate the number of recreational participants in the smooth
dogfish fishery, NMFS examined MRFSS data. Based on MRFSS data from
2004 to 2007, an average of 58,161 smooth dogfish were retained per
year by private anglers and charter/headboats (CHBs) in the
recreational fishery. This number is the upper limit of participants in
the Federal recreational fishery of the species, and is likely much
lower since multiple individual fish are expected to have been caught
by one fisherman. Furthermore, based on the life history of the species
and the fact the most recreational fisherman are shore-based, the vast
majority of smooth dogfish caught recreationally are in coastal, State
waters and would not require a Federal HMS angling permit.
NMFS has determined that the final 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 Amendment 3.
D. A Description of the Projected Reporting, Record-Keeping, and Other
Compliance Requirements of the Final Rule
Section 604(a)(4) of the RFA requires a description of the
projected reporting, record-keeping, and other compliance requirements
of the final rule, including an estimate of the classes of small
entities which would be subject to the requirements of the report or
record. The commercial and recreational measures for SCS and pelagic
sharks would not introduce any new reporting and record-keeping
requirements. However, alternative F2 would implement Federal
management of smooth dogfish and establish a permit for commercial and
recreational retention of smooth dogfish in Federal waters. The Federal
permit requirement for smooth dogfish would allow NMFS to collect data
regarding participants in the fishery and landings through Federal
shark dealer reports. The Federal dogfish permit requirement would
require a similar permit application to the other current HMS permits.
The information collected on the application would include vessel
information and owner identification and contact information. A modest
fee to process the application and annual renewal would also likely be
required. The cost would likely be similar to the current fee
associated with the Atlantic Tunas General Category and Atlantic HMS
Angling permits, which both cost $16 in 2009 to obtain.
E. A Description of the Steps Taken To Minimize the Significant
Economic Impact on Small Entities
Section 604(a)(5) of the RFA requires a description of the steps
the Agency has taken to minimize the significant economic impact on
small entities consistent with the stated objectives of applicable
statutes, including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the final rule and the
reason that each one of the other significant alternatives to the rule
considered by the Agency which affect small entities was rejected.
These impacts are discussed below and in the FEIS for Amendment 3.
Additionally, the RFA lists four general categories of ``significant''
alternatives that would assist an agency in the development of
significant alternatives (5 U.S.C. 603(c)(1)-(4)). These categories of
alternatives are: establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities; clarification, consolidation, or
simplification of compliance and reporting requirements under the rule
for such small entities; use of performance rather than design
standards; and, exemptions from coverage of the rule for small
entities.
In order to meet the objectives of this final rule, consistent with
the Magnuson-Stevens Act and ESA, NMFS cannot exempt small entities or
change the reporting requirements only for small entities because all
the entities affected are considered small entities. Thus, there are no
alternatives discussed that fall under the first and fourth categories
described above. 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. Thus, there are no alternatives considered under the third
category. As described below, NMFS analyzed several different
alternatives in this rulemaking and provides rationale for identifying
the final actions to achieve the desired objective.
The alternatives considered and analyzed have been grouped into
three major categories. These categories include commercial measures,
recreational measures, and smooth dogfish-related measures. Under
commercial measures, alternatives for SCS commercial quotas, gear
restrictions, and pelagic shark effort controls were considered and
analyzed. The SCS commercial quota alternatives include: (A1) Maintain
the existing SCS quota; (A2) establish a new SCS quota of 392.5 mt dw
and a blacknose commercial quota of 13.5 mt dw; (A3) establish a new
SCS quota of 42.7 mt dw and a blacknose commercial quota of 16.6 mt dw;
allow all current authorized gears for sharks; (A4) establish a new SCS
quota of 56.9 mt dw and a blacknose commercial quota of 14.9 mt dw;
remove shark gillnet gear as an authorized gear for sharks; (A5) close
the SCS fishery; and (A6) establish a
[[Page 30516]]
new SCS quota of 221.6 mt dw and a blacknose commercial quota of 19.9
mt dw. The commercial gear restrictions alternatives include: (B1)
Maintain current authorized gears for commercial shark fishing; (B2)
close shark gillnet fishery; remove gillnet gear as an authorized gear
type for commercial shark fishing; and (B3) close the gillnet fishery
to commercial shark fishing from South Carolina south, including the
Gulf of Mexico and the Caribbean Sea. The pelagic shark effort controls
alternatives include: (C1) Keep shortfin mako sharks in the pelagic
shark species complex and do not change the quota; (C2) remove shortfin
mako sharks from pelagic shark species quota and establish a shortfin
mako quota; (C3) remove shortfin mako sharks from pelagic shark species
complex and place this species on the prohibited shark species list;
(C4a) establish a minimum size limit for shortfin mako sharks that is
based on the size at which 50 percent of female shortfin mako sharks
reach the sexual maturity or 32 inches interdorsal length (IDL); (C4b)
establish a minimum size limit for shortfin makos that is based on the
size at which 50 percent of male shortfin mako sharks reach the sexual
maturity or 22 inches IDL; (C5) take action at the international level
to end overfishing of shortfin mako sharks; and (C6) promote the
release of shortfin mako sharks brought to fishing vessels alive.
Under recreational measures, NMFS considered alternatives for both
SCS and pelagic sharks. The recreational measures considered for SCS
include: (D1) Maintain the current recreational retention and size
limit for SCS; (D2) modify the minimum recreational size for blacknose
sharks based on their biology, (D3) increase the retention limit for
Atlantic sharpnose sharks based on current catches; and (D4) prohibit
retention of blacknose sharks in recreational fisheries. The
recreational measures considered for pelagic sharks include: (E1)
Maintain the current recreational measures for shortfin mako sharks;
(E2a) establish a minimum size limit for shortfin makos that is based
on the size at which 50 percent of female shortfin mako sharks reach
sexual maturity or 108 in FL; (E2b) establish a minimum size limit for
shortfin makos that is based on the size at which 50 percent of male
shortfin mako sharks reach sexual maturity or 73 inches FL; (E3) take
action at the international level to end overfishing of shortfin mako
sharks; (E4) promote the release of shortfin mako sharks brought to
fishing vessels alive; and (E5) prohibit retention of shortfin mako
sharks in recreational fisheries (catch and release only).
Finally, NMFS also considered alternatives for managing smooth
dogfish. These alternatives include: (F1) Do not add smooth dogfish
under NMFS management, (F2) add smooth dogfish under NMFS management
and establish a Federal permit requirement, and (F3) add smooth dogfish
under NMFS management and mirror management measures implemented in the
ASMFC Interstate Shark FMP. NMFS considered several alternatives for
adding smooth dogfish under NMFS management. These alternatives
include: (F2 a1) Establish a smooth dogfish quota that is equal to the
average annual landings from 1998-2007 (950,859 lb dw); (F2 a2)
establish a smooth dogfish quota equal to the maximum annual landing
between 1998-2007 (1,270,137 lb dw); (F2 a3) establish a smooth dogfish
quota equal to the maximum annual landing between 1998-2007 plus one
standard deviation (1,423,727 lb dw); (F2 b1) establish a separate
smooth dogfish set-aside quota for the exempted fishing program of 6 mt
ww; and (F2 b2) establish a smooth dogfish set-aside quota for the
exempted fishing program and add it to the current 60 mt ww set aside
quota for the exempted fishing program.
The potential impacts these alternatives may have on small entities
have been analyzed and are discussed in the following sections. The
final actions include: A6, B1, C5, C6, D1, E3, E4, F2, and preferred
sub-alternatives F2 a4 and F2 b1. The economic impacts that would occur
under these actions were compared with the other alternatives to
determine if economic impacts to small entities could be minimized
while still accomplishing the stated objectives of this rule.
Under the No Action alternative, A1, there would be no additional
economic impacts to directed and incidental shark permit holders as the
average annual gross revenues from SCS landings, including blacknose
shark landings, would be the same as the status quo. The average annual
gross revenues from 2004 through 2007 from all SCS meat and fins was
$830,918. Based on data from 2004 to 2007 for directed and incidental
shark permit holders that landed non-blacknose SCS, the average
directed shark permit holder earned $9,765 in average annual gross
revenues, and the average incidental shark permit holder earned $687 in
average annual gross revenues from non-blacknose SCS landings. For
those permit holders that actually landed blacknose shark during that
same time period, the average directed shark permit holder earned
$3,638 in average annual gross revenues, and the average incidental
shark permit holder earned $1,721 in average annual gross revenues from
blacknose shark landings. These revenues are not expected to be
impacted by alternative A1. However, since alternative A1 would not
reduce blacknose shark mortality to the level needed to rebuild
blacknose sharks, NMFS did not select this alternative at this time.
Under the revised alternative A2, NMFS would remove blacknose
sharks from the SCS quota and create a blacknose shark-specific quota
of 12.1 mt dw and a separate ``non-blacknose SCS'' quota, which would
apply to finetooth, Atlantic sharpnose, and bonnethead sharks, of 221.6
mt dw. NMFS anticipates that non-blacknose SCS landings should not
decrease as the non-blacknose SCS quota would only be reduced by the
average blacknose shark landings. Therefore, the 68 directed and 29
incidental shark permit holders that had non-blacknose SCS landings
would not be affected by the new non-blacknose SCS quota. However, the
blacknose shark quota would be a 78-percent reduction based on average
landings from 2004-2007. Average annual gross revenues for the
blacknose shark landings for the entire fishery would decrease from
$172,110 under the No Action alternative down to $33,611 under
alternative A2, which is an 80-percent reduction in average annual
gross revenues for blacknose sharks. Thus, the 44 directed and 7
incidental shark permit holders that had blacknose shark landings would
be affected by the new blacknose shark quota. As directed permit
holders landed the majority of blacknose shark under the No Action
alternative, it is anticipated that directed permit holders would
experience the largest impacts under alternative A2. The decrease in
average annual gross revenues for directed and incidental permit
holders would depend on the specific trip limit associated with the
blacknose quota established under A2. However, because discards would
continue as fishermen directed on non-blacknose SCS, regardless of the
retention limits, overall mortality for blacknose sharks would still be
above the commercial allowance of 7,094 blacknose sharks/year, even if
the retention of blacknose sharks was prohibited. Therefore, NMFS did
not select this alternative at this time.
Under the revised alternative A3, NMFS would remove blacknose
sharks from the SCS quota and create a blacknose shark-specific quota
of 19.9 mt dw and a separate ``non-blacknose SCS'' quota of 110.8 mt
dw, which
[[Page 30517]]
would apply to finetooth, Atlantic sharpnose, and bonnethead sharks.
NMFS determined that by reducing the overall SCS fishery, NMFS would
reduce the level of blacknose shark discards such that the total
blacknose shark mortality would stay below the commercial allowance.
While trip limits would not change for non-blacknose SCS for
directed and incidental permit holders (i.e., no trip limit for
directed fishermen and a 16 non-blacknose SCS/pelagic sharks combined
trip limit for incidental fishermen), given the reduction in the non-
blacknose SCS quota, NMFS anticipates that the 68 directed and 29
incidental permit holders that had non-blacknose SCS landings would be
affected by the new non-blacknose SCS quota. Average annual gross
revenues for non-blacknose SCS landings for the entire fishery are
anticipated to be $310,222. This is a 53-percent reduction in average
annual gross revenues compared to average annual gross revenues
expected under the No Action alternative, A1. Since directed permit
holders land approximately 97 percent of the non-blacknose SCS landings
as explained in alternative A1, NMFS anticipates that directed permit
holders would lose more in average annual gross revenues from non-
blacknose SCS landings compared to incidental permit holders under
alternative A3. Average annual gross revenues for directed shark permit
holders of non-blacknose SCS under alternative A3 would be $300,916,
which is a loss of $343,200 in average annual gross revenues or a 53-
percent reduction in average annual gross revenues from the average
annual gross revenues expected under the No Action alternative, A1.
Spread amongst the directed shark permit holders that land non-
blacknose SCS, this is an anticipated loss of $5,047 in average annual
gross revenues from non-blacknose SCS landings per permit holder.
Incidental permit holders land approximately 3 percent of the non-
blacknose SCS. Average annual gross revenues for incidental shark
permit holders of non-blacknose SCS under alternative A3 would be
$9,307, which is a loss of $10,614 in average annual gross revenues or
also a 53 percent reduction in average annual gross revenues from the
average annual gross revenues expected under the No Action alternative,
A1. Spread amongst the incidental shark permit holders that land non-
blacknose SCS, this is an anticipated loss of $366 in average annual
gross revenues from non-blacknose SCS landings per permit holder.
The blacknose shark quota would be reduced to 19.9 mt dw based on
average landings from 2004-2008. In addition, in order to keep the
total mortality of blacknose sharks below the commercial allowance for
the HMS Atlantic shark fishery, incidental shark permit holders would
not be allowed to retain blacknose sharks under alternative A3. Thus,
the 44 directed and 7 incidental shark permit holders that had
blacknose shark landings would be affected by the new blacknose shark
quota. Since incidental permit holders would not be able to retain
blacknose sharks, the total blacknose shark quota would be available
only to directed shark permit holders. Average annual gross revenues
for the blacknose shark landings for the directed fishery would
decrease from $160,062 under the No Action alternative down to $51,409
under alternative A3, which is a loss of $108,653 or a 68-percent
reduction in average annual gross revenues for blacknose sharks for
directed shark fishermen. Spread amongst the directed shark permit
holders that land blacknose sharks, there would be an anticipated loss
of $2,469 in average annual gross revenues from blacknose landings per
permit holder. However, since incidental shark permit holders would not
be able to retain blacknose sharks, they would lose an estimated $8,179
in average annual gross revenues from blacknose shark landings. Spread
amongst the incidental permit holders that land blacknose sharks, there
would be an anticipated loss of $1,168 in average annual gross revenues
from blacknose landings per permit holder.
Given the large reduction in the non-blacknose SCS quota under
alternative A3, which would affect more directed and incidental permit
holders compared to the smaller reduction in the non-blacknose SCS
quota under alternative A6, NMFS did not select alternative A3 at this
time.
Under alternative A4, NMFS would remove blacknose sharks from the
SCS quota and create a blacknose shark-specific quota and a separate
``non-blacknose SCS'' quota equal to 55.4 mt dw, which would apply to
finetooth, Atlantic sharpnose, and bonnethead sharks. NMFS determined
that by reducing the overall SCS fishery, NMFS could reduce the level
of blacknose shark discards such that the total blacknose shark
mortality would stay below the commercial allowance. NMFS would
establish a blacknose-specific quota of 15.9 mt dw, which is the amount
of blacknose sharks that would be landed while the non-blacknose SCS
quota is taken; however, incidental fishermen would not be allowed to
retain any blacknose sharks under alternative A4. In addition, this
alternative assumes that gillnet gear would not be used to harvest
sharks as explained under alternatives B2 and B3.
While trip limits would not change for non-blacknose SCS for
directed and incidental permit holders (i.e., no trip limit for
directed fishermen and a 16 non-blacknose SCS/pelagic sharks combined
trip limit for incidental fishermen), given the reduction in the non-
blacknose SCS quota, NMFS anticipates that the 41 directed and 22
incidental shark permit holders that did not use gillnet gear to land
non-blacknose SCS would be affected by the new non-blacknose SCS quota.
Average annual gross revenues for non-blacknose SCS landings for the
entire fishery are anticipated to be $155,111. This is a 76-percent
reduction in average annual gross revenues compared to the average
annual gross revenues expected under the No Action alternative, A1.
Since directed shark permit holders land approximately 97 percent of
the non-blacknose SCS landings as explained in alternative A1, NMFS
anticipates that directed shark permit holders would lose more in
average annual gross revenues from non-blacknose SCS landings compared
to incidental shark permit holders under alternative A4. Average annual
gross revenues for directed shark permit holders of non-blacknose SCS
under alternative A4 would be $150,458, which is a loss of $493,658 in
average annual gross revenues or a 77-percent reduction in average
annual gross revenues from the average annual gross revenues expected
under the No Action alternative, A1. Spread amongst the directed shark
permit holders that did not use gillnet gear to land non-blacknose SCS,
there could be an anticipated loss of $12,040 in average annual gross
revenues from non-blacknose SCS landings per permit holder. Incidental
shark permit holders land approximately 3 percent of the non-blacknose
SCS landings as explained in alternative A1. Average annual gross
revenues for incidental shark permit holders of non-blacknose SCS under
alternative A4 would be $4,653, which is a loss of $15,268 in average
annual gross revenues or a 77-percent reduction in average annual gross
revenues from the average annual gross revenues expected under the No
Action alternative, A1. Spread amongst the incidental shark permit
holders that did not use gillnet gear to land non-blacknose SCS, there
could be an anticipated loss of $694 in average annual gross revenues
from non-
[[Page 30518]]
blacknose SCS landings per permit holder.
The blacknose shark quota would also be a 72-percent reduction
based on average landings from 2004 though 2008. In addition, in order
to keep the total mortality of blacknose sharks below the commercial
allowance for the HMS Atlantic shark fishery, incidental shark permit
holders would not be allowed to retain blacknose sharks under
alternative A4. Thus, the 15 directed and 5 incidental shark permit
holders that did not use gillnet gear to land blacknose sharks would be
affected by the new blacknose shark quota. Since incidental shark
permit holders would not be able to retain blacknose sharks, the total
blacknose shark quota would be available only to directed shark permit
holders. Average annual gross revenues for the blacknose shark landings
for the directed fishery would decrease from $160,062 under the No
Action alternative down to $41,075 under alternative A4, which is a
loss of $118,987 or a 74-percent reduction in average annual gross
revenues from blacknose sharks for directed shark permit holders.
Spread amongst the directed shark permit holders that did not use
gillnet gear to land blacknose sharks, there could be an anticipated
loss of $7,932 in average annual gross revenues from blacknose landings
per vessel. Incidental shark permit holders would lose an estimated
$12,048 in average annual gross revenues from blacknose shark landings.
Spread amongst the incidental shark permit holders that did not use
gillnet gear to land blacknose sharks, there could be an anticipated
loss of $1,791 in average annual gross revenues from blacknose landings
per permit holder.
By reducing effort in the overall SCS fishery under Alternative A4,
NMFS could reduce the level of blacknose shark discards such that the
total blacknose shark mortality would stay below the commercial
allowance needed to rebuild the stock. Gillnet fishermen would be
affected the most by alternative A4 in combination with alternative B2
or B3, with estimated gross revenue losses between $377,928 and
$365,067 from lost non-blacknose SCS and blacknose landings.
Alternative A5 would close the entire SCS commercial shark fishery,
prohibiting the landing of any SCS, including blacknose sharks. Thus,
this alternative would eliminate landings of all SCS, including
finetooth, Atlantic sharpnose, bonnethead, and blacknose sharks. This
would have negative economic impacts on the average 85 directed shark
permit holders, and the average 31 incidental shark permit holders that
had SCS landings during 2004-2007. This would result in a loss of
average annual gross revenues of $664,037 for non-blacknose SCS and
$172,110 from blacknose shark landings for a total loss of $830,918 in
average annual gross revenues from SCS landings. Directed shark permit
holders would lose $644,116 in average annual gross revenues from non-
blacknose SCS landings and $160,062 in average annual gross revenues
from blacknose shark landings for a total of $805,990 in average annual
gross revenues. Spread among the 85 directed shark permit holders that
landed SCS, this could result in a loss in average annual gross
revenues of $9,482 per permit holder.
Incidental shark permit holders would lose $19,921 in average
annual gross revenues from non-blacknose SCS landings and $12,048 in
average annual gross revenues from blacknose shark landings for a total
of $31,969 in average annual gross revenues under alternative A5.
Spread among the 31 incidental shark permit holders that landed SCS,
this could result in a loss in average annual gross revenues of $1,031
per permit holder.
In addition, as gillnet gear is the primary gear used to target
SCS, it is assumed that directed shark gillnet fishing would end,
except for fishermen that use gillnet gear to strikenet for blacktip
sharks. Approximately 11 directed shark permit holders use gillnet gear
to land LCS. This would result in a decrease in LCS landings of 102,171
lb dw and a decrease in average annual gross revenues of $107,280.
Spread among the 11 directed shark permit holders that land LCS with
gillnet gear, this alternative would result in a loss in average annual
gross revenues of $9,753 per permit holder.
While this alternative could reduce blacknose mortality below the
commercial allowance of 44,853.8 lb dw, it would also completely
eliminate the fishery for all SCS. Of the alternatives analyzed,
alternative A5 would result in the most significant economic impacts to
small entities. In addition, this alternative would severely curtail
data collection on all SCS that could be used for future stock
assessments. Thus, NMFS did not select this alternative at this time.
Alternative A6, the final action, combines parts of alternatives A2
and A3 that would establish a blacknose species-specific quota of 19.9
mt dw and a non-blacknose SCS quota of 221.6 mt dw. NMFS designed this
alternative to minimize economic impacts on shark fishermen and other
participants in the fishery related to SCS quota reductions.
Alternative A6 would set the non-blacknose SCS quota at a level equal
to the average annual landings from 2004 through 2008, and the
blacknose quota at a level that is a 64 percent reduction of the
average landings for that species over the same time period. This
proposal comes in response to recently updated SEFSC data used for
analysis, and in response to concerns raised by the commercial and
scientific communities during the comment period for the DEIS. Under
alternative A6 all currently authorized gears for shark fishing would
be allowed in the fishery.
Under the non-blacknose SCS quota proposed in alternative A6, those
fishermen with the 68 directed shark permits and 29 incidental shark
permits that had non-blacknose SCS landings would be expected to fish
as they currently do under the No Action alternative, and shark dealers
and other entities that deal with shark products would be expected to
operate as they do under the No Action alternative. Average annual
gross revenues for non-blacknose SCS landings for the entire fishery
are anticipated to decline by approximately 6-percent compared to the
No Action alternative, to $620,445, under alternative A6, representing
a revenue loss of $43,593. Average annual gross revenue for blacknose
shark landings for the entire fishery is expected to decline to
$55,278, a loss of $116,832.
Since directed shark permit holders accounted for 97 percent of the
landings for non-blacknose SCS, the total revenue for these fishermen
would decrease by 6 percent to $601,832, a loss of $42,284 from the No
Action alternative non-blacknose directed shark permit revenue total of
$644,116. Spread across the 68 directed shark permit holders that
reported non-blacknose landings, this would result in a per boat
decrease of $622 ($42,284/68 directed vessels = $622). With incidental
shark permit holders accounting for 3 percent of the annual revenue
from non-blacknose landings based on alternative A6, there would be a
decrease in total revenue of $1,308, or 7 percent, to $18,613 from the
No Action Alternative of $19,921. This would result in a loss of
revenue from non-blacknose SCS per incidental vessel of $45 ($1,308/29
incidental vessels = $45). Therefore, social and economic impacts of
the non-blacknose SCS quota on fishermen with directed and incidental
shark permit would be slightly negative under alternative A6.
Under the blacknose shark quota 19.9 mt dw, the 44 directed shark
permit holders and 7 incidental shark permit holders that had blacknose
shark landings would experience direct
[[Page 30519]]
negative social impacts, as they would most likely have to fish in
other fisheries to make up for lost blacknose landings or leave the
fishery altogether. Other entities that deal with blacknose shark
products, such as shark dealers, would indirectly experience negative
social impacts as they would also have to change their business
practices to make up for lost blacknose shark product. In total,
average annual gross revenues for the blacknose shark landings for the
directed shark permit holders would decrease from $160,062 under the No
Action alternative down to $51,409 under alternative A6, which is a
loss of $108,653 or a 68-percent reduction in average annual gross
revenues for blacknose sharks for directed shark fishermen. Spread
amongst the directed shark permit holders that land blacknose sharks,
there could be an anticipated loss of $2,469 in average annual gross
revenues from blacknose landings per permit holder ($108,653/44
directed vessels = $2,469 per vessel). For incidental shark permit
holders the 68-percent reduction in blacknose shark landings would
translate into an average annual gross revenue of $3,869, which would
be a loss of income of $8,179 from the annual average of $12,048 under
the No Action alternative. Spread amongst the 7 incidental shark permit
holders, this would result in an annual loss of $1,168 per permit
holder ($8,179/7 incidental vessels = $1,168).
Under alternative A6, if either the non-blacknose SCS quota (221.6
mt dw) or blacknose shark quota (19.9 mt dw), reached 80 percent of the
available landings, NMFS would close both fisheries for the rest of the
season. If a future stock assessment determines that blacknose sharks
are continuing to be overfished or that overfishing is still occurring
NMFS could make regulatory changes as needed in future management
actions. These changes may include, but are not limited to reducing the
blacknose shark quota and/or the non-blacknose SCS quota, and
implementing daily blacknose catch limits. Alternative A6 would meet
the rebuilding requirements of the Magnuson-Stevens Act by addressing
the overfished status and overfishing of blacknose sharks by reducing
the blacknose shark quota to 19.9 mt dw. While NMFS recognizes that
there may be negative social and economic impacts on parts of the
fishing community due to the reduced blacknose shark quota, in
selecting the quota of 221.6 mt dw for the non-blacknose SCS fishery,
NMFS is minimizing those negative socioeconomic impacts, especially
since the bulk of the catch in the SCS fishery comes from shark species
that have been determined to not be overfished or undergoing
overfishing (i.e. finetooth, sharpnose, and bonnethead sharks).
Therefore, NMFS is finalizing alternative A6 at this time.
Alternative A6 would result in positive ecological impacts to
blacknose sharks by reducing mortality of this species below the
commercial allowance of 7,094 blacknose sharks per year that is
necessary for this stock to rebuild with a 70 percent probability by
2027 consistent with the rebuilding plan and the objectives of this
amendment. Alternative A6 would also reduce effort and mortality in the
non-blacknose SCS fishery, to a level that is equal to the average
landings for these species for the years 2004 through 2008. Alternative
A1 (No Action alternative) does not reduce effort or mortality in the
commercial SCS fishery, so does not address the overfished status or
overfishing of blacknose sharks. The scenarios under alternative A2
that eliminate gillnets as an authorized gear and those that eliminate
retention of blacknose sharks altogether, fail to meet the goal of
reducing blacknose shark mortality, due to the high number of discards
of blacknose sharks from those gears that would continue to operate in
the fishery. For those scenarios under alternative A2 that would
continue to allow gillnets to be retained as an authorized gear, the
necessary reduction in blacknose sharks is met, but the quota is
exceeded. Under alternative A3 the goal of reducing the blacknose shark
mortality to necessary levels is obtained, but due to the significant
reduction of the non-blacknose SCS quota, there would be a 67 percent
increase in discard mortality of non-blacknose SCS. Both alternatives
A4 and A5 would achieve the necessary blacknose shark mortality
reduction, but the social and economic impacts on the commercial shark
permit holders from the reduced quotas would be significant.
Compared to the other alternatives analyzed, alternative A6 would
result in the least negative social and economic impacts on the
participants of the SCS commercial fishery while still meeting the goal
of reducing mortality and rebuilding blacknose sharks. Under
alternative A6, the non-blacknose SCS quota of 221.6 mt dw would result
in a loss of $43,592 in average annual revenues for all permit holders.
The reduced blacknose quota of 19.9 mt dw would result in a loss of
$116,833 for all permit holders. Under alternative A2, directed and
incidental permit holders would lose $138,499 in average annual
revenue, from the blacknose quota of 12.1 mt dw. Under alternative A3
as in alternative A6, the blacknose quota of 19.9 mt dw would result in
an anticipated loss in average annual revenues for directed and
incidental permit holders. The non-blacknose quota of 110.8 mt dw,
under alternative A3, would result in a loss of average annual revenues
to all permit holders of $275,103. Under alternative A4, the reduction
in blacknose quota to 15.9 mt dw would result in an average annual loss
of revenues for all permit holders of $124,853. With the prohibition on
gillnets in alternative A4, all permit holders would lose approximately
$287,524 from the reduced non-blacknose SCS quota and many would have
to completely change the way they fished, or to leave the fishery
entirely. Because alternative A5 would completely close the SCS
fishery, those directed and incidental permit holders that land non-
blacknose SCS and blacknose sharks would be forced to move into other
fisheries and would likely create pressure on other commercial species.
While alternative A1, the No Action alternative, would have the least
negative social and economic impacts on the SCS commercial fishery
participants, this alternative does not reduce mortality of blacknose
sharks in order to meet the rebuilding goals of this amendment or stop
overfishing of this stock.
Under alternative B1, the final action, NMFS would maintain the
current gear restrictions for rod and reel, gillnet, and BLL gear.
Between the DEIS and the FEIS, NMFS switched to this alternative as the
preferred alternative to minimize the economic impacts to fishermen and
other participants in the fishery. The economic impacts of alternative
B1 would be the same as the status quo, and no negative economic
impacts would be anticipated under alternative B1. On average from
2004-2007, the directed and incidental shark permit holders earned
average annual gross revenues from SCS landings of $833,634, while the
directed and incidental permit holders that landed LCS earned larger
gross revenues of $3,328,663. The smooth dogfish fishery is smaller
than the other fisheries and only has average annual gross revenues of
$371,786 for State and Federally permitted fishermen reporting to the
ACCSP. Based on this alternative, the average annual gross revenues of
these fisheries would remain the same as the status quo. The average
number of directed and incidental shark permit holders that reported
SCS landings in the Coastal Fisheries logbook from
[[Page 30520]]
2004-2007 were 116 (85 directed and 31 incidental shark permit
holders), and the LCS fishery had an annual average of 162 permit
holders (129 directed and 33 incidental shark permit holders) reporting
LCS landings in the Coastal Fisheries logbook from 2004-2007. The
number of permit holders would not be impacted by the No Action
alternative. NMFS selects this least cost SCS commercial gear
restriction alternative.
Under alternative B2, NMFS would remove gillnet gear as an
authorized gear type for commercial shark fishing. This alternative
would have significant negative economic impacts by potentially
affecting 30 directed and 7 incidental shark permit holders. On
average, directed shark permit holders landed 289,546 lb dw of SCS with
gillnet gear. This is equivalent to $365,955 in lost average annual
gross revenues from SCS landings for directed shark permit holders.
Based on average ex-vessel prices per pound from 2004-2007, directed
shark permit holders made $807,792 in average annual gross revenues
from SCS landings. On average, incidental shark permit holders landed
9,465 lb dw of SCS with gillnet gear. This is equivalent to $11,973 in
lost average annual gross revenues from SCS landings for incidental
shark fishermen due to the prohibition of gillnet gear. Based on
average ex-vessel prices per pound from 2004-2007, incidental shark
permit holders made $25,843 from SCS landings under the status quo.
This represents a 45 percent reduction in SCS revenues for directed
shark permit holders and a 46 percent reduction in SCS revenues for
incidental shark permit holders compared to the No Action alternative,
alternative B1.
This alternative would have a minimal negative economic impact on
the LCS fishery. Only 11 directed and 5 incidental shark permit holders
out of the 162 total shark permit holders would be affected. On
average, directed shark permit holders landed 102,171 lb dw of LCS with
gillnet gear. This is equivalent to $107,280 in lost average annual
gross revenues from LCS landings (3 percent reduction). On average,
incidental shark permit holders landed 1,961 lb dw of LCS with gillnet
gear. This is equivalent to $2,059 in lost average annual gross
revenues from LCS landings for incidental shark permit holders due to
the prohibition of gillnet gear. In total ($109,339), this is
approximately 3 percent of the gross revenues for the entire LCS
fishery under the status quo (i.e., $3,328,663).
Gillnets are also the primary gear type used to catch smooth
dogfish. Within the VTR data, a primarily Northeast U.S. reporting
system, an average of 213 vessels reported smooth dogfish landings per
year between 2004 and 2007. Within the Coastal Fisheries Logbooks data,
a primarily Southeast U.S. reporting system, an average of 10 vessels
reported smooth dogfish landings per year between 2004 and 2007. From
these data, an estimate of 223 vessels would require a smooth dogfish
permit; however, as fishermen are currently not required to have a
permit to retain smooth dogfish, this could be an underestimate of the
number of fishermen that would require a Federal commercial permit for
smooth dogfish in the future. The average total annual landings from
1998-2007 was 950,859 lb dw (by State and Federally permitted fishermen
reporting to the ACCSP, however, since fishermen do not have to
currently report smooth dogfish landings, this could be an
underestimate of total landings, and thus, an underestimate of average
annual gross revenues for this fishery). Based on average ex-vessel
prices per pound from 2004-2007, average annual gross revenues for the
entire smooth dogfish fishery totaled $371,786 from smooth dogfish
landings. Based on the preferred alternative F2, which would require
fishermen who fish for smooth dogfish in Federal waters to obtain a
Federal smooth dogfish permit, then under alternative B2, those
fishermen would not be able to use gillnet gear to land smooth dogfish.
This would have a negative economic impact on fishermen who previously
used gillnet gear in Federal waters to land smooth dogfish. However, as
fishermen do not currently have to have a Federal permit to land smooth
dogfish, NMFS is uncertain the universe of fishermen who might be
affected by alternatives B2 and F2 at this time. However, given the
potential large negative economic impacts of this alternative to the
SCS, LCS, and smooth dogfish fisheries, NMFS did not select this
alternative at this time.
Under alternative B3, NMFS would close the commercial gillnet
fishery from South Carolina south, including the Gulf of Mexico and the
Caribbean Sea. This would have a negative economic impact on Federally
permitted directed and incidental fishermen. In the SCS fishery, this
alternative would affect an average of 27 directed and 5 incidental
shark permit holders out of the average 116 total shark permit holders
that landed SCS from 2004-2007. The SCS gillnet fishery from South
Carolina south accounts for 44 percent of the total directed shark
permit holder landings, and 26 percent of landings in the incidental
fishery. On average, directed shark permit holders landed 283,462 lb dw
($358,261) of SCS with the gillnet gear from South Carolina south.
Thus, directed shark fishermen would lose $358,261 in average annual
gross revenues from SCS landings from the gillnet prohibition under
alternative B3. Based on average ex-vessel prices from 2004-2007,
directed shark permit holders made $807,792 in average annual gross
revenues from SCS landings. On average, incidental shark permit holders
landed 5,381 lb dw ($6,807) of SCS with gillnet gear from South
Carolina south. Thus, incidental shark permit holders would lose $6,807
in average annual gross revenues from non-blacknose SCS landings under
alternative B3. The directed and incidental shark permit holders would
lose average annual gross revenues of $365,068 from their current gross
revenues of $833,634.
This alternative would have minor economic impacts on the LCS
fishery. It would only affect 12 directed and incidental shark permit
holders. The directed shark permit holders would lose $106,189 in
average annual gross revenues from lost LCS landings in gillnet gear
from South Carolina south under alternative B3. Incidental shark permit
holders would lose $290 from lost LCS landings in gillnet gear from
South Carolina south. In total ($106,479), this is only 3 percent of
the average annual gross revenues (i.e., $3,328,663) from LCS landings
compared to the LCS fishery under the status quo.
Alternative B3, in combination with the final action F2, would not
affect the economic impacts of the smooth dogfish fishery. Smooth
dogfish are primarily caught from North Carolina north. The average
total landings/year is 950,859 lb dw/year (by State and Federally
permitted fishermen reporting to the ACCSP, however, since fishermen do
not have to currently report smooth dogfish landings, this could be an
underestimate of total landings, and thus, an underestimate of average
annual gross revenues for this fishery), which translates into average
annual gross revenues of $371,786 lb dw/year from smooth dogfish
landings. Given that smooth dogfish are not typically landed with
gillnet gear from South Carolina south, NMFS anticipates that this
alternative, in combination with the preferred alternative F2, would
not cause significant loss in average annual gross revenues from smooth
dogfish landings.
The No Action alternative, C1, would not modify or alter commercial
fishing practices for shortfin mako sharks or
[[Page 30521]]
other shark species. There would be no additional economic impacts to
directed and incidental fishermen as the average annual gross revenues
from shortfin mako sharks or other shark species would be the same as
the status quo. On average, 72.5 mt dw of shortfin mako sharks were
commercially landed between 2004 and 2007, which is equivalent to
$350,039 in annual revenues. On average between 2004 and 2007,
approximately 90 vessels had shortfin mako shark landings. Directed
shark permit holders made up 39 of these vessels. However, since
shortfin mako is typically incidentally caught, the average landings
value per vessel was estimated by dividing annual revenues amongst all
the vessels that have landed shortfin mako. Therefore, the vessels that
landed shortfin mako generated an average of $3,889 in gross revenues
per year from shortfin mako sharks. The No Action alternative would not
allow NMFS to meet statutory requirements to take measures to end
overfishing. Thus, No Action was not identified as a preferred
alternative.
Alternative C2 would implement a species-specific quota for
shortfin mako at the level of the average annual commercial landings
for this species. This alternative is expected to have neutral or
slightly negative economic impacts. On average, 72.5 mt dw (159,834 lb
dw) of shortfin mako sharks were commercially landed between 2004 and
2007, which is equivalent to $350,039 in average annual gross revenues.
Spread amongst the vessels that landed shortfin mako sharks, the
average vessel earned $3,889 in annual gross revenues from shortfin
mako sharks. While fishermen would be able to maintain current fishing
effort under this alternative, any increase in effort would be
restricted by the species-specific quota of 72.5 mt dw. Under the No
Action alternative, commercial fishermen currently have a 488 mt dw
quota, which could potentially be filled entirely by shortfin mako
landings. This could result in maximum annual revenues equal to
$2,356,106. Thus, there is the potential loss of the option to fish up
to the maximum level under this alternative. This difference is
$2,006,067 in annual gross revenues from shortfin mako sharks. Spread
amongst the 90 vessels that, on average, have landed shortfin mako
sharks from 2004 to 2007, that difference would be $22,289 annually per
vessel. However, given shortfin mako sharks are incidentally caught in
the PLL fishery, it is unlikely that the entire pelagic shark quota
would be entirely filled with shortfin mako landings. NMFS did not
select this alternative at this time because the United States
contributes a small portion of shortfin mako mortality due the lack of
a directed fishery compared to shortfin mako mortality resulting from
the fishing of foreign vessels outside of the U.S. EEZ. In addition,
this alternative does not minimize the potential economic impacts on
small entities.
Alternative C3 would remove shortfin mako sharks from the pelagic
shark species complex and add them to the prohibited species list. This
alternative is not expected to have negative economic impacts for
commercial fishermen because it is not a species that is targeted by
commercial fishermen. Shortfin mako sharks are predominately caught
incidentally in the PLL fishery and, on average, the commercial
landings for shortfin mako sharks, from 2004 to 2007 were 72.5 mt dw
with an estimated gross ex-vessel value of $350,039. However, since
shortfin makos would be placed on the prohibited species list under
alternative C3, there could be an estimated reduction in average annual
gross revenues of $350,039 to the commercial fishermen. Based on the
average number of vessels that have landed shortfin mako from 2004 to
2007, the revenue reductions would be approximately $3,889 per vessel
annually. In addition, this alternative could lead to increased
operation time if commercial fishermen have to release and discard all
shortfin makos that are caught on the PLL gear. In addition, if the
commercial PLL fleet expands in the future, placing shortfin mako
sharks on the prohibited species list could result in a loss of future
revenues for the commercial PLL fishery. Thus, NMFS did not select this
alternative at this time.
Alternative C4a would establish a minimum size limit for shortfin
makos that is based on the size at which 50 percent of female shortfin
mako sharks reach sexual maturity or 32 inches IDL. The summed dressed
weight of all shortfin mako sharks kept under the 32 inches IDL size
limit made up 1.4 percent of total dressed weight landings of shortfin
mako sharks based on POP data. NMFS estimated this would reduce
shortfin mako harvests by 2,061.1 lb dw. The economic impacts of this
restriction would be an average annual gross revenue loss of $4,513 for
this fishery. Spread amongst the 90 vessels that have landed shortfin
mako sharks from 2004 to 2007, the per vessel losses would be
approximately $50 annually.
Alternative C4b would establish a minimum size limit for shortfin
makos that is based on the size at which 50 percent of male shortfin
mako sharks reach sexual maturity or 22 inches IDL. The summed dressed
weight of all kept shortfin mako sharks under the 22 inches IDL size
limit made up 0.02 percent of dressed weight landings of shortfin mako
based on POP data. NMFS estimated this would reduce shortfin mako
harvests by 34.3 lb dw. The economic impacts of this restriction would
be an average annual gross revenues loss of $75 for this fishery.
Alternatives C4a and C4b would have minimal economic impacts
because only a small percentage of commercial landings would be
affected by the size restrictions. Of the two alternatives, the
negative economic impact of C4a would be greater, as commercial
landings by weight are 2,026.8 lb dw greater than in alternative C4b.
Despite these minimum economic impacts, since the size limits would not
reduce fishing mortality of shortfin mako sharks in the commercial
sector, NMFS did not select these alternatives at this time.
Under alternative C5, the final action, NMFS would take action at
the international level through international fishery management
organizations to establish management measures to end overfishing of
shortfin mako sharks. In the short term, this alternative would not
result in any negative economic impacts on commercial fishermen as it
would not restrict commercial harvest of shortfin mako sharks, nor
alter the pelagic shark quota. Therefore, the near term economic
impacts of alternative C5 would be the same as described in the No
Action alternative C1. However, this alternative could have negative
economic impacts in the long term if directed management measures were
adopted at an appropriate international forum that would require the
reduction of landings domestically for shortfin mako sharks.
Recommended reductions in landings, if implemented by multiple nations,
would ultimately end overfishing of shortfin mako. Therefore, NMFS
selects alternative C5 at this time. Note that with respect to all
shortfin mako commercial measures, alternatives C5 and C6 would have
the lowest short-term economic impacts on fishermen and participants in
the fishery.
Alternative C6, the preferred alternative, would promote the
release of shortfin mako sharks brought to fishing vessels alive. This
alternative would likely not result in any negative economic impacts on
commercial fishermen as it does not restrict commercial harvest of
shortfin mako sharks that are alive at haulback, and quotas and
retention limits would remain as described in the No Action alternative
C1. However, as this
[[Page 30522]]
alternative could result in the reduction of fishing mortality of
shortfin mako sharks by encouraging fishermen to release shortfin mako
sharks brought to the fishing vessel alive, NMFS selects this
alternative at this time.
Under alternative D1, the final action, NMFS would maintain the
current recreational management measures, including the current
retention limits and size limits for SCS. Therefore, the economic
impacts of alternative D1 would be the same as the status quo, and no
negative economic impacts would be anticipated under alternative D1.
Alternative D1 is the least costs alternative and NMFS selects this
alternative.
Alternative D2 would modify the minimum recreational size for
blacknose sharks based on the biology of blacknose sharks. This would
lower the current size limit from 54 inches FL to 36 inches FL, the
size at which 50 percent of the female blacknose sharks reach sexual
maturity. This could increase the landings of recreationally harvested
blacknose sharks and, therefore, have positive economic impacts for
small business entities supporting recreational fishermen. The
potential for increased landings associated with the lower size limit
could marginally increase demand for charter/headboat services and for
products and service provided by shoreside businesses that support
recreational fishermen. Since this alternative could result in the
increase of blacknose shark recreational landings, and NMFS needs to
reduce the number of blacknose shark landings in order to rebuild the
stock, NMFS did not select this alternative at this time.
Alternative D3 would increase the retention limit for Atlantic
sharpnose sharks based on their current catches and stock status. Any
increase in the retention limit for Atlantic sharpnose sharks would
provide positive economic impacts for recreational fishermen,
especially if this resulted in more charter trips for charter/
headboats. However, since the latest stock assessment suggests that
increased fishing efforts could result in an overfished status and/or
cause overfishing to occur in the future (NMFS, 2007), NMFS did not
select this alternative at this time.
Under alternative D4, NMFS would prohibit the retention of
blacknose sharks in the recreational fishery. While recreational
fishermen could still catch blacknose sharks, they would not be
permitted to retain blacknose sharks and would have to release them.
This could have negative economic impacts on recreational fishermen,
including tournaments and charter/headboats if the prohibition of
blacknose sharks resulted in fewer charters and reduced tournament
participation. However, since blacknose sharks are not one of the
primary species targeted by recreational anglers, in tournaments, or on
charters, NMFS does not anticipate large negative economic impacts from
this alternative on tournaments or charter/headboat businesses.
Maintaining the current recreational measures for shortfin mako
sharks under alternative E1 would likely not result in any adverse
economic impacts on small entities since the No Action alternative
would not modify or alter recreational fishing practices for shortfin
mako sharks or other shark species. However, this alternative would not
meet the objective of this rule in reducing overfishing of shortfin
mako sharks, Thus, NMFS did not select this alternative at this time.
Alternative E2a would set a minimum size limit for shortfin mako
sharks of 108 inches FL in the recreational fishery. This would have
the most severe economic impacts of all the alternatives considered, as
almost all of the reported shortfin mako sharks landed (99.5 percent)
were smaller than the proposed 108 inch FL size limit and would have to
be released. This alternative would basically create a catch-and-
release fishery for shortfin mako sharks. The impacts of alternative
E2b would be less severe than alternative E2a, as it would set a
minimum size limit for shortfin mako sharks of 73 inches FL in the
recreational fishery. This would result in a 60.3 percent overall
reduction in recreational shortfin mako shark landings. Under this
alternative, economic impacts would be greater on the non-tournament
recreational mako shark fishery, as 81 percent of those landings would
fall below the 73 inch FL size limit. The percentage of recreational
landings during tournaments that would be released under alternative
E2b would be less than the non-tournament recreational landings (51.7
percent to 81 percent, respectively). According to LPS data, 41 percent
of shortfin mako sharks caught are kept; therefore, size limits in
alternatives E2 may have a substantial economic impact on the
recreational fishery. Thus, NMFS did not select alternatives E2a or E2b
at this time.
Under alternative E3, the final action, NMFS would take action at
the international level to end overfishing of shortfin mako sharks
through participation in international fisheries organizations such as
ICCAT. This alternative would not result in any changes in the current
recreational regulations regarding bag or size limits for shortfin mako
sharks. Therefore, this alternative would likely not result in any
negative economic impacts for recreational fishermen and the small
businesses that support those recreational fishing activities in the
short term as compared to the No Action alternative, E1. In addition,
this alternative could help end overfishing of shortfin mako sharks in
the long term through an international plan to conserve shortfin mako
sharks. Therefore, NMFS selects this alternative at this time.
Under alternative E4, the final action, NMFS would promote the live
release of shortfin mako sharks in the recreational shark fishery, but
this alternative would not result in any changes in the current
recreational regulations regarding bag or size limits for shortfin mako
sharks. Therefore, this alternative would likely not result in any
economic impacts compared to the No Action alternative, alternative E1.
However, it would encourage the live release of shortfin mako sharks,
and could help reduce fishing pressure on this species. Therefore, NMFS
selects this alternative at this time.
Under alternative E5, NMFS would remove shortfin mako sharks from
the authorized species list and add them to the prohibited species
list. Placing shortfin mako sharks on the prohibited species list would
make the recreational fishery for shortfin mako sharks a catch-and-
release fishery. Although a small number of shortfin mako sharks were
landed in the recreational fishery from 2004 to 2007, it is also an
important fishing tournament species. Fishing tournaments are an
important component of HMS recreational fisheries. In 2008, there were
42 shark tournaments throughout the U.S. Atlantic Coast, including the
Gulf of Mexico and the Caribbean Sea. Therefore, adding this species to
the prohibited species list could lead to negative economic impacts for
tournament operators since they may have to modify their tournament
rules and could face reduced demand for participation, and thus reduce
revenues from entry fees. A recreational catch-and-release fishery for
shortfin mako may also reduce demand for CHB trips that target shortfin
mako sharks. In addition, since the United States only contributes to a
small portion of the overall mortality for shortfin mako sharks,
prohibiting them in the recreational fishery would not end overfishing
for this species. Given these reasons and the fact that the economic
impacts of this alternative are estimated
[[Page 30523]]
to be higher than that of the preferred alternatives, NMFS did not
select this alternative at this time.
NMFS also considered alternatives regarding the potential inclusion
of smooth dogfish under NMFS management. Smooth dogfish are currently
not managed by NMFS, and stock data are sparse. Therefore, there is
limited stock status information, participant information, and effort
data for this fishery.
Under alternative F1, the no action alternative, NMFS estimates
that there would not be any economic impacts to small entities beyond
the status quo. This alternative would have the lowest costs
alternative to small entities. However, applying the No Action
alternative would not meet the objectives of this rule since it would
preclude gathering fishery participant information. Therefore, NMFS did
not select this alternative at this time.
Implementing Federal management of smooth dogfish through
alternative F2, the final action, would focus on characterizing the
fishery and stock status, but would not actively change catch levels or
rates. Alternative F2 would require Federal commercial and recreational
fishing permits as well as require fishermen to land smooth dogfish
with all of their fins naturally attached. These changes could result
in short-term, direct significant adverse socioeconomic impacts on
fishermen who are used to processing smooth dogfish at sea. Business
entities that fish commercially for smooth dogfish would have to
purchase an open access smooth dogfish commercial fishing permit, and
dealers would have to report smooth dogfish landings. The costs to
small entities would include the costs of obtaining the permit
(approximately $20 based on current permit fees), the time involved in
completing the permit form, and the administrative costs associated
with reporting landings. In addition, recreational anglers that would
want to retain smooth dogfish in Federal waters would need to purchase
an HMS Angling category permit. While this alternative results in more
costs to small entities than alternative F1, it helps meet the
objectives of this rule of gathering more information on participation
in this fishery, and therefore is preferred at this time. NMFS would
delay the implementation of these requirements until the start of the
2012 fishing season to allow time for fishermen to adjust to the
changes and to allow time for the development of a new commercial
smooth dogfish permit. Thus, in the short-term, alternative F2 would
result in significant, but mitigated to be less than significant
socioeconomic impacts due to the delay in implementation of these
requirements. Once fishermen adjust to the new measures, NMFS
anticipates that there would be no direct socioeconomic impacts to
fishermen in the long-term.
Sub-alternatives F2 a1, which would establish a smooth dogfish
quota that is equal to the average annual landings from 1998-2007, and
F2 a2, which would establish a smooth dogfish quota equal to the
maximum annual landing between 1998-2007, could potentially have
negative economic impacts on fishermen if the associated quotas reflect
a significantly underreported fishery. If the actual landings are
higher than these two quotas, fishermen would be prevented from fishing
at status quo levels, and thus experience negative economic impacts.
Thus, NMFS did not select these two sub-alternatives at this time.
Alternative F2a3, which would establish a smooth dogfish quota
above the maximum annual landings between 1998-2007, would have neutral
to negative economic impacts. The quota of maximum historical annual
landings plus one standard deviation between the years 1998 and 2007
could allow a buffer for potential unreported landings during that
time. However, based on public comment, as detailed above, NMFS does
not believe that this alternative would adequately account for
underreporting.
Alternative F2a4, the final action, would establish a smooth
dogfish quota above the maximum annual landings between 1998-2007 and
would have neutral economic impacts. The quota of maximum historical
annual landings plus two standard deviations between the years 1998 and
2007 would allow a buffer for potential unreported landings during that
time. This would allow the fishery to continue at the current rate and
level into the future without having to be shut down prematurely. Thus,
alternative F2a4 is NMFS' selected alternative.
There are no negative economic impacts anticipated with alternative
F2 b1. There is no charge associated with fishermen and researchers
obtaining an EFP, SRP, display permit, or LOA for research or the
collection for public display. In addition, NMFS would establish a
smooth dogfish set aside that would accommodate current and future
research activities. Thus, NMFS does not anticipate any negative
economic impacts associated with alternative F2 b1, and NMFS selects
sub-alternative F2 b1 at this time.
As with sub-alternative F2 b1, there are no negative economic
impacts anticipated with sub-alternative F2 b2. There is no charge
associated with fishermen and researchers obtaining an EFP, SRP,
display permit, or LOA for research or for the collection for public
display. In addition, NMFS would establish a smooth dogfish set-aside
that would accommodate current and future research activities. Thus,
NMFS does not anticipate any negative economic impacts associated with
sub-alternative F2 b1.
Alternative F3, which would implement management measures for
smooth dogfish that complement the ASMFC plan, would likely have
neutral to slightly positive economic impacts. Most of the ASMFC
regulations would not change the smooth dogfish fishery as it currently
operates, fishermen would be required to leave the dorsal fin on the
smooth dogfish through landing from July through February, which could
change how the fishery operates, and therefore, have direct minor,
adverse socioeconomic impacts in the short-term. The extent of these
impacts will depend on how many smooth dogfish are landed between July
and February of each year. Because this requirement began in State
waters in January 2010, it could mitigate some of the economic impacts
associated with alternative F2 with regard to the requirement of having
all fins naturally attached under the Federal plan. Thus, by the start
of the fishing season in 2012, fishermen who have been fishing in State
waters should have a better idea of how to keep all fins naturally
attached.
In the short-term, there are no indirect socioeconomic impacts
expected for dealers and fish processors compared to the status quo as
the fishery would continue to operate as it has been with the exception
of the requirement to leave the dorsal fin on from July through
February. However, if the requirement to have the dorsal fin attached
during certain times of the year affects how dealers and processors
process smooth dogfish, then there could be indirect, minor adverse
economic impacts on smooth dogfish dealers until they learn how to
process these sharks during July through February. However, since NMFS
considers the requirements for gillnet checks and maintaining shark
fins naturally attached through offloading necessary conservation tools
for protected resources and to prevent shark finning, NMFS did not
select this alternative at this time.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group
[[Page 30524]]
of related rules for which an agency is required to prepare a FRFA, the
agency shall publish one or more guides to assist small entities in
complying with the rule, and shall designate such publications as
``small entity compliance guides.'' The agency shall explain the
actions a small entity is required to take to comply with a rule or
group of rules. Copies of this final rule and the compliance guide are
available upon request from NMFS (see ADDRESSES). Copies of the
compliance guide will be sent to all Federal shark limited access
permit holders.
List of Subjects
50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: May 18, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 50 CFR parts 600 and 635 are
amended as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In Sec. 600.1204, paragraphs (g) through (l) are revised to read as
follows:
Sec. 600.1204 Shark finning; possession at sea and landing of shark
fins.
* * * * *
(g) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark permit and who lands shark in an
Atlantic coastal port must have all fins weighed in conjunction with
the weighing of the carcasses at the vessel's first point of landing.
Such weights must be recorded on the ``weighout slips'' specified in
Sec. 635.5(a)(2) of this chapter.
(h) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark permit and who lands shark in or from
the U.S. EEZ in an Atlantic coastal port must comply with regulations
found at Sec. 635.30(c) of this chapter.
(i) No person aboard a vessel that has been issued a Federal
Atlantic commercial shark permit shall engage in shark finning.
(j) No person aboard a vessel that has been issued a Federal
Atlantic commercial shark permit shall possess on board shark fins
without the fins being naturally attached to the corresponding
carcass(es), although sharks may be dressed at sea.
(k) No person aboard a vessel that has been issued a Federal
Atlantic commercial shark permit shall land shark fins without the fins
being naturally attached to the corresponding carcass(es).
(l) A dealer may not purchase shark fins, from an owner or operator
of a fishing vessel issued a Federal Atlantic commercial shark permit
who lands shark in an Atlantic coastal port, unless such fins were
naturally attached to the corresponding carcass at the time of landing
and their combined wet weight is less than 5 percent of the dressed
weight of the corresponding carcass(es).
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
3. The authority citation for 50 CFR part 635 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
4. In Sec. 635.1, paragraph (a) is revised to read as follows:
Sec. 635.1 Purpose and scope.
(a) The regulations in this part govern the conservation and
management of Atlantic tunas, Atlantic billfish, Atlantic sharks, and
Atlantic swordfish under the authority of the Magnuson-Stevens Act and
ATCA. They implement the 2006 Consolidated Highly Migratory Species
Fishery Management Plan and its amendments. The Atlantic tunas
regulations govern conservation and management of Atlantic tunas in the
management unit. The Atlantic billfish regulations govern conservation
and management of Atlantic billfish in the management unit. The
Atlantic swordfish regulations govern conservation and management of
North and South Atlantic swordfish in the management unit. North
Atlantic swordfish are managed under the authority of both ATCA and the
Magnuson-Stevens Act. South Atlantic swordfish are managed under the
sole authority of ATCA. The shark regulations govern conservation and
management of sharks in the management unit, under the authority of the
Magnuson-Stevens Act.
* * * * *
0
5. In Sec. 635.2, the definitions of ``Federal Atlantic commercial
shark permit,'' ``Non-blacknose SCS,'' and ``Smoothhound sharks'' are
added in alphabetical order to read as follows:
Sec. 635.2 Definitions.
* * * * *
Federal Atlantic Commercial Shark Permit means any of the
commercial shark permits issued pursuant to Sec. 635.4.
* * * * *
Non-blacknose SCS means one of the species, or part thereof, listed
in section B of Table 1 in Appendix A to this part other than the
blacknose shark (Carcharhinus acronotus).
* * * * *
Smoothhound shark means one of the species, or part thereof, listed
in section E of Table 1 in Appendix A to this part.
* * * * *
0
6. In Sec. 635.4, paragraphs (e) and (g)(2) are revised to read as
follows:
Sec. 635.4 Permits and fees.
* * * * *
(e) Shark vessel permits. (1) The owner of each vessel used to fish
for or take Atlantic sharks or on which Atlantic sharks are retained,
possessed with an intention to sell, or sold must obtain, in addition
to any other required permits, at least one of the Federal Atlantic
commercial shark permits described below. A Federal Atlantic commercial
shark permit is not required if the vessel is recreationally fishing
and retains no more sharks than the recreational retention limit
specified in Sec. 635.22(c), is operating pursuant to the conditions
of a shark display or EFP issued pursuant to Sec. 635.32, or fishes
exclusively within State waters. It is a rebuttable presumption that
the owner or operator of a vessel without a permit issued pursuant to
this part on which sharks are possessed in excess of the recreational
retention limits intends to sell the sharks.
(2) The owner of vessels that fish for, take, retain, or possess
the Atlantic oceanic sharks listed in sections A, B, or C of Table 1 of
Appendix A with an intention to sell must obtain either a Federal
Atlantic commercial shark directed or shark incidental limited access
permit. The only valid Federal commercial shark directed and shark
incidental limited access permits are those that have been issued under
the limited access program consistent with the provisions under
paragraphs (l) and (m) of this section.
[[Page 30525]]
(3) A vessel owner issued or required to be issued a Federal
Atlantic commercial shark directed or shark incidental limited access
permit may harvest, consistent with the other regulations in this part,
any shark species listed in sections A, B, or C of Table 1 of Appendix
A.
(4) Vessel owners of vessels that fish for, take, retain, or
possess the Atlantic oceanic sharks listed in section E of Table 1 of
Appendix A with an intention to sell must obtain a Federal commercial
smoothhound permit. A smoothhound permit may be issued to a vessel that
also holds either a directed or incidental shark limited access permit.
* * * * *
(g) * * *
(2) Shark. A first receiver, as defined in Sec. 635.2, of any
Atlantic shark listed in Table 1 of Appendix A of this part must
possess a valid dealer permit.
* * * * *
0
7. In Sec. 635.5:
0
a. Paragraph (a)(4) is removed.
0
b. Paragraph (a)(5) is redesignated as paragraph (a)(4).
0
c. Paragraph (b)(1)(i) is revised.
The revision reads as follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(b) * * *
(1) * * *
(i) Dealers that have been issued or should have been issued an
Atlantic tunas, swordfish, and/or sharks dealer permit under Sec.
635.4 must submit to NMFS all reports required under this section. All
reports must be species-specific and must include information about all
HMS landed regardless of where harvested or whether the vessel is
Federally permitted under Sec. 635.4. For sharks, each report must
specify both the total fin weight and the total dressed weight of the
carcass(es) separately from each other. In cases where different
dealers handle the fins and the shark meat, either the report required
in this section or the weighout slip required in paragraph (a)(2) of
this section must indicate which part of the sharks being landed (e.g.,
fins or meat) was handled by the dealer submitting the report. As
stated in Sec. 635.4(a)(6), failure to comply with these recordkeeping
and reporting requirements may result in the existing dealer permit
being revoked, suspended, or modified, and in the denial of any permit
applications.
* * * * *
0
8. In Sec. 635.20, paragraph (e) is revised to read as follows:
Sec. 635.20 Size limits.
* * * * *
(e) Sharks. The following size limits change depending on the
species being caught and the retention limit under which they are being
caught as specified under Sec. 635.22(c).
(1) All sharks landed under the recreational retention limits
specified at Sec. 635.22(c) must have the head, tail, and fins
naturally attached.
(2) All sharks landed under the recreational retention limits
specified at Sec. 635.22(c)(2) must be at least 54 inches (137 cm) FL.
(3) There is no size limit for Atlantic sharpnose or bonnethead
sharks taken under the recreational retention limits specified at Sec.
635.22(c)(3).
(4) There is no size limit for smoothhound sharks taken under the
recreational retention limits specified at Sec. 635.22(c)(6).
* * * * *
0
9. In Sec. 635.21, paragraphs (d)(1)(iii)(B) and (e)(3) are revised to
read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(d) * * *
(1) * * *
(iii) * * *
(B) Northern South Carolina. Bounded on the north by 32[deg]53.5'
N. lat.; on the south by 32[deg]48.5' N. lat.; on the east by
78[deg]04.75' W. long.; and on the west by 78[deg]16.75' W. long.
* * * * *
(e) * * *
(3) Sharks. (i) No person may possess a shark in the EEZ taken from
its management unit without a permit issued under Sec. 635.4. No
person issued a Federal Atlantic commercial shark permit under Sec.
635.4 may possess a shark taken by any gear other than rod and reel,
handline, bandit gear, longline, or gillnet. No person issued an HMS
Angling permit or an HMS Charter/headboat permit under Sec. 635.4 may
possess a shark if the shark was taken from its management unit by any
gear other than rod and reel or handline, except that persons on a
vessel issued both an HMS Charter/Headboat permit and a Federal
Atlantic commercial shark permit may possess sharks taken with rod and
reel, handline, bandit gear, longline, or gillnet if the vessel is not
engaged in a for-hire fishing trip.
(ii) No person may fish for sharks with a gillnet with a total
length of 2.5 km or more. No person may have on board a vessel a
gillnet with a total length of 2.5 km or more.
(iii) Persons fishing with gillnet gear must comply with the
provisions implementing the Atlantic Large Whale Take Reduction Plan,
the Bottlenose Dolphin Take Reduction Plan, the Harbor Porpoise Take
Reduction Plan, and any other relevant Take Reduction Plan set forth in
Sec. Sec. 229.32 through 229.35 of this title. If a listed whale is
taken, the vessel operator must cease fishing operations immediately
and contact NOAA Fisheries as required under Sec. 229 of this title.
(iv) While fishing with a gillnet for or in possession of any of
the large coastal, small coastal, and pelagic sharks listed in section
A, B, and/or C of Table 1 of Appendix A of this part, the gillnet must
remain attached to at least one vessel at one end, except during net
checks.
(v) Vessel operators fishing with gillnet for or in possession of
any of the large coastal, small coastal, and pelagic sharks listed in
sections A, B, and/or C of Table 1 of Appendix A of this part are
required to conduct net checks every 0.5 to 2 hours to look for and
remove any sea turtles, marine mammals, or smalltooth sawfish.
Smalltooth sawfish should not be removed from the water while being
removed from the net.
* * * * *
0
10. In Sec. 635.22, paragraphs (a) and (c) are revised to read as
follows:
Sec. 635.22 Recreational retention limits.
(a) General. Atlantic HMS caught, possessed, retained, or landed
under these recreational limits may not be sold or transferred to any
person for a commercial purpose. Recreational retention limits apply to
a longbill spearfish taken or possessed shoreward of the outer boundary
of the Atlantic EEZ, to a shark taken from or possessed in the Atlantic
Ocean including the Gulf of Mexico and Caribbean Sea, to a North
Atlantic swordfish taken from or possessed in the Atlantic Ocean, and
to bluefin and yellowfin tuna taken from or possessed in the Atlantic
Ocean. The operator of a vessel for which a retention limit applies is
responsible for the vessel retention limit and for the cumulative
retention limit based on the number of persons aboard. Federal
recreational retention limits may not be combined with any recreational
retention limit applicable in State waters.
* * * * *
(c) Sharks. (1) The recreational retention limit for sharks applies
to any person who fishes in any manner, except to persons aboard a
vessel that has been issued a Federal Atlantic commercial shark vessel
permit under Sec. 635.4. The retention limit can change depending on
the species being caught
[[Page 30526]]
and the size limit under which they are being caught as specified under
Sec. 635.20(e). If a commercial Atlantic shark quota is closed under
Sec. 635.28, the recreational retention limit for sharks and no sale
provision in paragraph (a) of this section may be applied to persons
aboard a vessel issued a Federal Atlantic commercial shark vessel
permit under Sec. 635.4, only if that vessel has also been issued an
HMS Charter/Headboat permit issued under Sec. 635.4 and is engaged in
a for-hire fishing trip.
(2) Only one shark from the following list may be retained per
vessel per trip, subject to the size limits described in Sec.
635.20(e)(2): any of the non-ridgeback sharks listed under heading A.2
of Table 1 in Appendix A of this part, tiger (Galeocerdo cuvier), blue
(Prionace glauca), common thresher (Alopias vulpinus), oceanic whitetip
(Carcharhinus longimanus), porbeagle (Lamna nasus), shortfin mako
(Isurus oxyricnchus), Atlantic sharpnose (Rhizoprionodon terraenovae),
finetooth (C. isodon), blacknose (C. Acronotus), and bonnethead
(Sphyrna tiburo).
(3) In addition to the sharks listed under paragraph (c)(2) of this
section, one Atlantic sharpnose shark and one bonnethead shark may be
retained per person per trip, subject to the size limits described in
Sec. 635.20(e)(3).
(4) No prohibited sharks, including parts or pieces of prohibited
sharks, which are listed in section D of Table 1 of Appendix A to this
part, may be retained regardless of where harvested.
(5) Sharks listed in Table 1 of Appendix A that are not listed in
this section, must be released by persons aboard a vessel that has not
been issued a Federal Atlantic commercial shark vessel permit under
Sec. 635.4.
(6) The smoothhound sharks listed in Section E of Table 1 of
Appendix A to this part may be retained, and are subject only to the
size limits described in Sec. 635.20(e)(4).
* * * * *
0
11. In Sec. 635.24, paragraphs (a)(4), (a)(5), and (a)(6) are revised
and paragraph (a)(7) is added to read as follows:
Sec. 635.24 Commercial retention limits for sharks and swordfish.
* * * * *
(a) * * *
(4)(i) A person who owns or operates a vessel that has been issued
a directed shark LAP may retain, possess, or land pelagic sharks if the
pelagic shark fishery is open per Sec. Sec. 635.27 and 635.28.
(ii) A person who owns or operates a vessel that has been issued a
directed shark LAP may retain, possess, or land blacknose and non-
blacknose SCS if the blacknose and non-blacknose SCS fisheries are open
per Sec. Sec. 635.27 and 635.28.
(iii) A person who owns or operates a vessel that has been issued
an incidental shark LAP may retain, possess, or land no more than 16
SCS and pelagic sharks, combined, per trip, if the respective fishery
is open per Sec. Sec. 635.27 and 635.28.
(5) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark permit may not retain, possess, land,
sell, or purchase prohibited sharks, including any parts or pieces of
prohibited sharks, which are listed in section D of Table 1 of Appendix
A to this part under prohibited sharks.
(6) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark permit, and who decides to retain
sharks, must retain, subject to the trip limits, all dead, legal-sized,
non-prohibited sharks that are brought onboard the vessel and cannot
replace those sharks with sharks of higher quality or size that are
caught later in the trip. Any fish that are to be released cannot be
brought onboard the vessel and must be released in the water in a
manner that maximizes survival.
(7) Only persons who own or operate a vessel that has been issued a
Federal commercial smoothhound permit may retain, possess, and land
smoothhound sharks if the smoothhound fishery is open per Sec. Sec.
635.27 and 635.28.
* * * * *
0
12a. In Sec. 635.27, effective June 1, 2010, paragraphs (b)(1)(i)
through (v) are revised to read as follows:
Sec. 635.27 Quotas.
* * * * *
(b) Sharks. (1) Commercial Quotas. The commercial quotas for sharks
specified in this section apply to all sharks from the management unit
harvested by persons fishing commercially, regardless of where
harvested. Sharks taken and landed commercially from State waters, even
by commercial fishermen without Federal Atlantic commercial shark
permits, must be counted against the Federal fishery quota. Commercial
quotas are specified for each of the complexes or species listed below.
Any sharks landed as unclassified will be counted against the
appropriate complex's or species' quota based on the species
composition calculated from data collected by observers on non-research
trips and/or dealer data. No prohibited sharks, including parts or
pieces of prohibited sharks, which are listed under section D of Table
1 of Appendix A to this part, may be retained except as authorized
under Sec. 635.32.
(i) Annual adjustments. NMFS will publish in the Federal Register
any annual adjustments to the base annual commercial quotas or the 2008
through 2012 adjusted base quotas. The base annual quota and the
adjusted base annual quota will not be available, and the fishery will
not open, until such adjustments are published and effective in the
Federal Register.
(A) Overharvests. Except as noted in this paragraph, if the
available commercial quota for any shark species or complex, as
described in this section, is exceeded in any fishing year, NMFS will
deduct an amount equivalent to the overharvest(s) from the following
fishing year or, depending on the level of overharvest(s), NMFS may
deduct an amount equivalent to the overharvest(s) spread over a number
of subsequent fishing years to a maximum of five years. If the annual
quota for non-sandbar LCS is exceeded in either region (see section
(b)(1)(iii)(B)) or in the research fishery in any fishing year, NMFS
will deduct an amount equivalent to the overharvest(s) from the
following fishing year or, depending on the level of overharvest(s),
NMFS may deduct an amount equivalent to the overharvest(s) spread over
a number of subsequent fishing years to a maximum of five years, in the
specific region or research fishery where the overharvest occurred. If
the blue shark quota is exceeded, NMFS will reduce the annual
commercial quota for pelagic sharks by the amount that the blue shark
quota is exceeded prior to the start of the next fishing year or,
depending on the level of overharvest(s), deduct an amount equivalent
to the overharvest(s) spread over a number of subsequent fishing years
to a maximum of five years.
(B) Underharvests. Except as noted in this paragraph, if an annual
quota for any shark species or complex, as described in this section,
is not exceeded, NMFS may adjust the annual quota depending on the
status of the stock or quota group. If the annual quota for non-sandbar
LCS is not exceeded in either region or in the research fishery, NMFS
may adjust the annual quota in either region (see paragraph
(b)(1)(iii)(B) of this section) or the research fishery depending on
the status of the stock or quota group. If the stock (e.g., sandbar
shark, porbeagle shark, pelagic shark, or blue shark) or specific
species within a quota group (e.g., non-sandbar LCS or non-blacknose
SCS) is declared to be overfished, to have overfishing occurring, or to
have an unknown status, NMFS may not adjust the following fishing
year's quota for any
[[Page 30527]]
underharvest, and the following fishing year's quota will be equal to
the base annual quota (or the adjusted base quota for sandbar and non-
sandbar LCS until December 31, 2012). If the stock is not declared to
be overfished, to have overfishing occurring, or to have an unknown
status, NMFS may increase the following year's base annual quota (or
the adjusted base quota for sandbar and non-sandbar LCS until December
31, 2012) by an equivalent amount of the underharvest up to 50 percent
above the base annual quota. For the non-sandbar LCS fishery,
underharvests are not transferable between regions and/or the research
fishery.
(ii) Sandbar sharks. The base annual commercial quota for sandbar
sharks is 116.6 mt dw. However, from July 24, 2008 through December 31,
2012, to account for overharvests that occurred in 2007, the adjusted
base quota is 87.9 mt dw. Both the base quota and the adjusted base
quota may be further adjusted per paragraph (b)(1)(i) of this section.
This quota is available only to the owners of commercial shark vessels
that have been issued a valid shark research permit and that have a
NMFS-approved observer onboard.
(iii) Non-sandbar LCS. (A) The total base quota for non-sandbar LCS
is 677.8 mt dw. This base quota is split between the two regions and
the shark research fishery as follows: Gulf of Mexico = 439.5 mt dw;
Atlantic = 188.3 mt dw; and Shark Research Fishery = 50 mt dw. However,
from July 24, 2008 through December 31, 2012, to account for
overharvests that occurred in 2007, the total adjusted base quota is
615.8 mt dw. This adjusted base quota is split between the regions and
the shark research fishery as follows: Gulf of Mexico = 390.5 mt dw;
Atlantic = 187.8 mt dw; and Shark Research Fishery = 37.5 mt dw. Both
the base quota and the adjusted base quota may be further adjusted per
paragraph (b)(1)(i) of this section.
(B) The commercial quotas for non-sandbar LCS are split between two
regions: the Gulf of Mexico and the Atlantic. For the purposes of this
section, the boundary between the Gulf of Mexico region and the
Atlantic region is defined as a line beginning on the east coast of
Florida at the mainland at 25[deg]20.4' N. lat, proceeding due east.
Any water and land to the south and west of that boundary is
considered, for the purposes of quota monitoring and setting of quotas,
to be within the Gulf of Mexico region. Any water and land to the north
and east of that boundary, for the purposes of quota monitoring and
setting of quotas, is considered to be within the Atlantic region.
(C) Except for non-sandbar LCS landed by vessels issued a valid
shark research permit with a NMFS-approved observer onboard, any non-
sandbar LCS reported by dealers located in the Florida Keys areas or in
the Gulf of Mexico will be counted against the non-sandbar LCS Gulf of
Mexico regional quota. Except for non-sandbar LCS landed by vessels
issued a valid shark research permit with a NMFS-approved observer
onboard, any non-sandbar LCS reported by dealers located in the
Atlantic region will be counted against the non-sandbar LCS Atlantic
regional quota. Non-sandbar LCS landed by a vessel issued a valid shark
research permit with a NMFS-approved observer onboard will be counted
against the non-sandbar LCS research fishery quota using scientific
observer reports.
(iv) Small coastal sharks. The base annual commercial quota for
non-blacknose small coastal sharks is 221.6 mt dw, unless adjusted
pursuant to paragraph (b)(1)(i) of this section. The base annual
commercial quota for blacknose sharks is 19.9 mt dw, unless adjusted
pursuant to paragraph (b)(1)(i) of this section.
(v) Pelagic sharks. The base annual commercial quotas for pelagic
sharks are 273 mt dw for blue sharks, 1.7 mt dw for porbeagle sharks,
and 488 mt dw for pelagic sharks other than blue sharks or porbeagle
sharks, unless adjusted pursuant to paragraph (b)(1)(i) of this
section.
0
12b. In Sec. 635.27, paragraphs (b(1)(vi) and (b)(2) are revised to
read as follows:
Sec. 635.27 Quotas.
* * * * *
(b) * * *
(1) * * *
(vi) Smoothhound sharks. The base annual commercial quota for
smoothhound sharks is 715.5 mt dw, unless adjusted pursuant to
paragraph (b)(1)(i) of this section.
(2) Public display and non-specific research quotas. All sharks
collected under the authority of a display permit or EFP, subject to
restrictions at Sec. 635.32, will be counted against the following:
(i) The base annual quota for persons who collect non-sandbar LCS,
SCS, pelagic sharks, blue sharks, porbeagle sharks, or prohibited
species under a display permit or EFP is 57.2 mt ww (41.2 mt dw).
(ii) The base annual quota for persons who collect sandbar sharks
under a display permit is 1.4 mt ww (1 mt dw) and under an EFP is 1.4
mt ww (1 mt dw).
(iii) No persons may collect dusky sharks under a display permit.
Collection of dusky sharks for research under EFPs and/or SRPs may be
considered on a case by case basis and any associated mortality would
be deducted from the shark research and display quota.
(iv) The base annual quota for persons who collect smoothhound
sharks under a display permit or EFP is 6 mt ww (4.3 mt dw).
* * * * *
0
13. In Sec. 635.28, paragraph (b) is revised to read as follows:
Sec. 635.28 Closures.
* * * * *
(b) Sharks. (1) If quota is available as specified by a publication
in the Federal Register, the commercial fishery for the shark species
or complexes specified in Sec. 635.27(b)(1) will remain open.
(2) When NMFS calculates that the landings for the shark species or
complexes, as specified in Sec. 635.27(b)(1), has reached or is
projected to reach 80 percent of the available quota as specified in
Sec. 635.27(b)(1), NMFS will file for publication with the Office of
the Federal Register a notice of closure for that shark species, shark
complex, and/or region that will be effective no fewer than 5 days from
date of filing. From the effective date and time of the closure until
NMFS announces, via the publication of a notice in the Federal
Register, that additional quota is available and the season is
reopened, the fishery for the shark species or shark complex and, for
non-sandbar LCS, region is closed, even across fishing years.
(3) When NMFS calculates that the landings for either blacknose
sharks or non-blacknose SCS has reached or is projected to reach 80
percent of the available quota as specified in Sec. 635.27(b)(1), NMFS
will file for publication with the Office of the Federal Register a
notice of closure for the entire SCS fishery, both the blacknose and
non-blacknose fisheries, that will be effective no fewer than 5 days
from date of filing. From the effective date and time of the closure
until NMFS announces, via the publication of a notice in the Federal
Register, that additional quota is available and the season is
reopened, the fishery for non-blacknose SCS and blacknose sharks is
closed, even across fishing years.
(4) When the fishery for a shark species group and/or region is
closed, a fishing vessel, issued a Federal Atlantic commercial shark
permit pursuant to Sec. 635.4, may not possess or sell a shark of that
species group and/or region,
[[Page 30528]]
except under the conditions specified in Sec. 635.22(a) and (c) or if
the vessel possesses a valid shark research permit under Sec. 635.32
and a NMFS-approved observer is onboard. A shark dealer, issued a
permit pursuant to Sec. 635.4, may not purchase or receive a shark of
that species group and/or region from a vessel issued a Federal
Atlantic commercial shark permit, except that a permitted shark dealer
or processor may possess sharks that were harvested, off-loaded, and
sold, traded, or bartered, prior to the effective date of the closure
and were held in storage. Under a closure for a shark species group, a
shark dealer, issued a permit pursuant to Sec. 635.4 may, in
accordance with State regulations, purchase or receive a shark of that
species group if the sharks were harvested, off-loaded, and sold,
traded, or bartered from a vessel that fishes only in State waters and
that has not been issued a Federal Atlantic commercial shark permit,
HMS Angling permit, or HMS Charter/Headboat permit pursuant to Sec.
635.4. Additionally, under a closure for a shark species group and/or
regional closure, a shark dealer, issued a permit pursuant to Sec.
635.4, may purchase or receive a shark of that species group if the
sharks were harvested, off-loaded, and sold, traded, or bartered from a
vessel issued a valid shark research permit (per Sec. 635.32) that had
a NMFS-approved observer on board during the trip sharks were
collected.
* * * * *
0
14. In Sec. 635.30, paragraph (c) is revised to read as follows:
Sec. 635.30 Possession at sea and landing.
* * * * *
(c) Shark. (1) In addition to the regulations issued at part 600,
subpart N, of this chapter, a person who owns or operates a vessel
issued a Federal Atlantic commercial shark permit under Sec. 635.4
must maintain all the shark fins including the tail naturally attached
to the shark carcass until the shark has been offloaded from the
vessel. While sharks are on board and when sharks are being offloaded,
persons issued a Federal Atlantic commercial shark permit under Sec.
635.4 are subject to the regulations at part 600, subpart N, of this
chapter.
(2) A person who owns or operates a vessel that has a valid Federal
Atlantic commercial shark permit may remove the head and viscera of the
shark while on board the vessel. At any time when on the vessel, sharks
must not have the backbone removed and must not be halved, quartered,
filleted, or otherwise reduced. All fins, including the tail, must
remain naturally attached to the shark through offloading. While on the
vessel, fins may be sliced so that the fin can be folded along the
carcass for storage purposes as long as the fin remains naturally
attached to the carcass via at least a small portion of uncut skin. The
fins and tail may only be removed from the carcass once the shark has
been landed and offloaded.
(3) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark permit and who lands sharks in an
Atlantic coastal port, including ports in the Gulf of Mexico and
Caribbean Sea, must have all fins and carcasses weighed and recorded on
the weighout slips specified in Sec. 635.5(a)(2) and in accordance
with part 600, subpart N, of this chapter. Persons may not possess any
shark fins not naturally attached to a shark carcass on board a fishing
vessel at any time. Once landed and offloaded, sharks that have been
halved, quartered, filleted, cut up, or reduced in any manner may not
be brought back on board a vessel that has been or should have been
issued a Federal Atlantic commercial shark permit.
(4) Persons aboard a vessel that does not have a Federal Atlantic
commercial shark permit must maintain a shark in or from the EEZ intact
through landing with the head, tail, and all fins naturally attached.
The shark may be bled and the viscera may be removed.
* * * * *
0
15. In Sec. 635.32, paragraph (e)(3) is revised to read as follows:
Sec. 635.32 Specifically authorized activities.
* * * * *
(e) * * *
(3) Charter permit holders must submit logbooks and comply with
reporting requirements as specified in Sec. 635.5. NMFS will provide
specific conditions and requirements in the chartering permit, so as to
ensure consistency, to the extent possible, with laws of foreign
countries, the 2006 Consolidated HMS FMP and its amendments, as well as
ICCAT recommendations.
* * * * *
0
16. In Sec. 635.69, paragraphs (a)(2) and (a)(3) are revised to read
as follows:
Sec. 635.69 Vessel monitoring systems.
(a) * * *
(2) Whenever a vessel issued a directed shark LAP, is away from
port with bottom longline gear on board, is located between 33[deg]00'
N. lat. and 36[deg]30' N. lat., and the mid-Atlantic shark closed area
is closed as specified in Sec. 635.21(d)(1); or
(3) Whenever a vessel, issued a directed shark LAP, is away from
port with a gillnet on board from November 15-April 15.
* * * * *
0
17. In Appendix A to Part 635, Table 1 of Appendix A to Part 635 is
revised to read as follows:
Appendix A [Amended]
Table 1 of Appendix A to Part 635--Oceanic Sharks
------------------------------------------------------------------------
-------------------------------------------------------------------------
A. Large Coastal Sharks
1. Ridgeback sharks:
Sandbar, Carcharhinus plumbeus
Silky, Carcharhinus falciformis
Tiger, Galeocerdo cuvier
2. Non-ridgeback sharks:
Blacktip, Carcharhinus limbatus
Bull, Carcharhinus leucas
Great hammerhead, Sphyrna mokarran
Lemon, Negaprion brevirostris
Nurse, Ginglymostoma cirratum
Scalloped hammerhead, Sphyrna lewini
Smooth hammerhead, Sphyrna zygaena
Spinner, Carcharhinus brevipinna
B. Small Coastal Sharks
Atlantic sharpnose, Rhizoprionodon terraenovae
Blacknose, Carcharhinus acronotus
Bonnethead, Sphyrna tiburo
Finetooth, Carcharhinus isodon
C. Pelagic Sharks
Blue, Prionace glauca
Oceanic whitetip, Carcharhinus longimanus
Porbeagle, Lamna nasus
Shortfin mako, Isurus oxyrinchus
Thresher, Alopias vulpinus
D. Prohibited Sharks
Atlantic angel, Squatina dumerili
Basking, Cetorhinus maximus
Bigeye sand tiger, Odontaspis noronhai
Bigeye sixgill, Hexanchus nakamurai
Bigeye thresher, Alopias superciliosus
Bignose, Carcharhinus altimus
Caribbean reef, Carcharhinus perezii
Caribbean sharpnose, Rhizoprionodon porosus
Dusky, Carcharhinus obscurus
Galapagos, Carcharhinus galapagensis
Longfin mako, Isurus paucus
Narrowtooth, Carcharhinus brachyurus
Night, Carcharhinus signatus
Sand tiger, Carcharias taurus
Sevengill, Heptranchias perlo
Sixgill, Hexanchus griseus
Smalltail, Carcharhinus porosus
Whale, Rhincodon typus
White, Carcharodon carcharias
E. Smoothhound Sharks
Smooth dogfish, Mustelus canis
Florida smoothhound, Mustelus norrisi
------------------------------------------------------------------------
* * * * *
[FR Doc. 2010-12407 Filed 5-28-10; 8:45 am]
BILLING CODE 3510-22-P