Atlantic Highly Migratory Species; Atlantic Shark Management Measures

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 030721180-3316-02; I.D. 010903D]

RIN 0648-AQ95

Atlantic Highly Migratory Species; Atlantic Shark Management Measures

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule; fishing season notification.

SUMMARY:

This final rule is necessary to ensure that shark regulations are based on the results of the 2002 stock assessments for large coastal sharks (LCS) and small coastal sharks (SCS). The results of these stock assessments indicate that the LCS complex continues to be overfished, and overfishing is occurring; that sandbar sharks are not overfished, but overfishing is occurring; that blacktip sharks are rebuilt and healthy; that the SCS complex is healthy; and that finetooth sharks are not overfished, but overfishing is occurring. Based on these results, NMFS is revising the rebuilding timeframe for LCS to 26 years from 2004, changing some of the commercial regulations, changing some of the recreational regulations, implementing measures to reduce bycatch and bycatch mortality including a time/area closure, removing the deepwater/other sharks from the management unit, establishing criteria regarding adding or removing sharks from the prohibited species group, and establishing a display permit for fishermen who wish to harvest highly migratory species (HMS) for public display. NMFS also updates essential fish habitat (EFH) identifications for sandbar, blacktip, finetooth, dusky, and nurse sharks. NMFS also notifies eligible participants of the opening and closing dates for the Atlantic large coastal, small coastal, and pelagic shark fishing seasons.

DATES:

This final rule is effective February 1, 2004, except for the amendments to §§ 635.20(e), 635.22(c), and 635.27(b) which are effective on December 30, 2003.

Fishing Season Opening and Closing Dates

The fishery opening for large coastal sharks (LCS) in the North Atlantic region is effective January 1, 2004, through 11:30 p.m., local time, April 15, 2004, and the closure is effective 11:30 p.m., local time, April 15, 2004, through June 30, 2004. The fishery opening for LCS in the South Atlantic region is effective January 1, 2004, through 11:30 p.m., local time, February 15, 2004, and the closure is effective 11:30 p.m., local time, February 15, 2004, through June 30, 2004. The fishery opening for LCS in the Gulf of Mexico region is effective January 1, 2004, through 11:30 p.m., local time, February 29, 2004, and the closure is effective 11:30 p.m., local time, February 29, 2004, through June 30, 2004. The fishery opening for small coastal sharks (SCS) in all regions, pelagic sharks, blue sharks, and porbeagle sharks is effective January 1, 2004, through June 30, 2004, unless otherwise modified or superseded through publication of a closure notification in the

Federal Register

.

ADDRESSES:

For copies of Amendment 1 to the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (Amendment 1) and its Final Environmental Impact Statement/Regulatory Impact Review/Final Regulatory Flexibility Analysis (FEIS/RIR/FRFA), contact Karyl Brewster-Geisz at NMFS Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910 or at (301) 713-1917 (fax). Copies can also be obtained on the web at

http://www.nmfs.noaa.gov/sfa/hms/.

Comments regarding the collection-of-information requirements contained in this rule should be sent to the HMS Management Division at the address noted above and to the Office of Management and Budget (OMB) by e-mail to

David_Rostker@omb.eop.gov,

or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:

Karyl Brewster-Geisz, Heather Stirratt, or Chris Rilling at 301-713-2347 or fax 301-713-1917 or Greg Fairclough at 727-570-5741 or fax 727-570-5656.

SUPPLEMENTARY INFORMATION:

The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), finalized in 1999, and Amendment 1 to the HMS FMP are implemented by regulations at 50 CFR part 635.

NMFS published a Notice of Intent to conduct an EIS and draft Amendment 1 to the HMS FMP on November 15, 2003 (67 FR 69180). On January 27, 2003, NMFS announced the availability of an Issues and Option paper and scheduled seven scoping meetings (68 FR 3853). On August 1, 2003, NMFS published the proposed rule regarding Amendment 1 (68 FR 45196) and announced the availability of the Draft EIS (68 FR 45237). NMFS held six public hearings and one Advisory Panel meeting during the public comment period, which was extended to October 3, 2003, due to Hurricane Isabel (68 FR 47904, August 12, 2003; 68 FR 51560, August 27, 2003; 68 FR 54885, September 19, 2003). Additionally, NMFS attended several Fishery Management Council meetings regarding Amendment 1 and its proposed rule.

Information regarding the management history of Atlantic sharks, Exempted Fishing Permits (EFP), and EFH and the alternatives considered in Amendment 1 was provided in the preamble of the proposed rule and is not repeated here. Additional information can be found in the Final Amendment 1 available from NMFS (

see

ADDRESSES

). A description of the changes to the proposed rule can be found after the response to comments, followed by information on the available quota and the length of the first 2004 fishing season.

Most of the measures in this rule, such as the requirement to carry and use linecutters and dipnets, the change in authorized gear in the recreational fishery, and the removal of deepwater and other sharks from the management unit, will be effective on February 1, 2004. However, some of the management measures that relieve restrictions, such as the changes to the commercial quotas (including the quota level for large coastal sharks (LCS), small coastal sharks (SCS), and establishment of regional quotas (§ 635.27(b))), changes to the recreational bag and size limit (§§ 635.22(c) and 635.20(e)), and changes to the commercial minimum size (§ 635.20(e)), will be effective on December 30, 2003. Additionally, in order to give fishermen time to adjust to the new regulations and, if necessary, revise their business plans, some of the final measures will be implemented after February 1, 2004. For instance, the Mid-Atlantic shark closure off of North Carolina (§ 635.21(d)(1)) and the trimester seasons for the commercial fisheries (§ 635.27(b)(1)(i)) will be effective on January 1, 2005. Furthermore, the requirements of installing and activating a vessel monitoring system (VMS) for bottom longline and gillnet vessels (§ 635.69(a)(2) and (3)) and possessing and using a dehooking device (§ 635.21(d)(3)(ii)) are delayed indefinitely pending type approval

notifications to be published at a later date in the

Federal Register

.

Response to Comments

A number of individuals and groups provided both written and verbal comments during the public comment period. The comments are summarized below together with NMFS' responses. Additionally, several questions were raised during the waiting period for the FEIS. While not required, NMFS has, along with the other comments below, provided further clarification to respond to some of the questions raised. All comments are grouped in a layout similar to the layout of the preamble of the proposed rule.

1. LCS Rebuilding Time Frame

Comment 1:

The proposed rebuilding time frame is illegal and runs counter to the precautionary approach. The LCS complex can and must be rebuilt within the 10-year time limit envisioned by Congress.

Response:

The National Standard 1 Guidelines, 50 CFR § 600.310, specify two strategies for determining the rebuilding time frame. First, if a stock can rebuild in less than 10 years, the rebuilding time frame can be no longer than 10 years. Second, if a stock will take 10 years or more to rebuild, the rebuilding time frame can be as long as the time to rebuild with no fishing plus a mean generation time. The HMS FMP specifies that, because of their slow growth and low reproductive potential, a 70-percent probability should be used for rebuilding the stock for sharks. The HMS FMP states that a 70-percent probability should be used as a guide to ensure that the intended results of management actions are realized and to assess the relative merits of one rebuilding time frame over another (

see

the HMS FMP at 3-61 and 3-289). The HMS FMP also uses a low probability of a negative outcome (less than 20-percent probability) as a guide for evaluating management measures.

Under the 70-percent probability, the amount of time required for rebuilding under no fishing is 10 years or greater. Thus, the second rebuilding strategy, discussed above, would apply. After taking into account the biology of the stocks, the results of the 2002 LCS stock assessment, the requirements of the Magnuson-Stevens Act and the National Standard Guidelines, the criteria in the HMS FMP, and the status of the fishing communities that rely on economic activities involving the capture of these fish, NMFS does not believe that a 10-year rebuilding period is appropriate for the LCS complex. The 26-year rebuilding period established in Amendment 1 is consistent with the Magnuson-Stevens Act, the National Standard Guidelines at 50 CFR part 600, subpart D, and the HMS FMP.

Comment 2:

If prohibiting fishing for 10 years does not quite give a 70-percent chance of rebuilding the LCS complex to MSY, then prohibit fishing for 20 years.

Response:

As discussed above, the HMS FMP establishes a 70-percent probability as a guide for shark management measures. Eliminating fishing would not achieve a 70-percent probability of rebuilding within 10 years; therefore, NMFS has established a rebuilding period of 11 years (no fishing period) plus one mean generation time. Prohibiting shark fishing for 20 years would give an 86-percent chance of rebuilding the LCS complex to maximum sustainable yield (MSY). However, prohibiting shark fishing for 20 years is not required by the Magnuson-Stevens Act, which allows NMFS to consider a number of factors when determining the rebuilding time frame, including impacts on fishing communities. If NMFS were to prohibit fishing for 20 years, a number of businesses including fishermen, processors, and suppliers, could be forced out of business and a number of communities, including recreational fishing communities, would be adversely affected. Additionally, prohibiting fishing for 20 years would eliminate the fishery-dependent data that is needed to accurately assess the status of the stocks. Given these impacts, the objectives of the HMS FMP and Amendment 1, the requirements of the Magnuson-Stevens Act and other domestic law, and the results of the 2002 large and small coastal shark stock assessments, NMFS does not believe that shark fishing should be prohibited for 20 years.

Comment 3:

Our confidence in the 70-percent chance to rebuild figure is low given the number of uncertainties and deficiencies in the plan particularly the fact that the quota is not reduced by 50 percent, the time/area closures to protect juveniles will not be implemented immediately, there is no size limit in place, and NMFS has not accounted for all sources of mortality such as state landings.

Response:

While some uncertainty is inherent in developing any rebuilding plan, based on the best available scientific information, NMFS is confident that the combination of management measures in Amendment 1 should have a 70-percent chance of rebuilding the LCS complex. The 2002 LCS stock assessment found that reducing the catches by 50 percent would have, on average, a 67-percent chance of rebuilding LCS in 30 years. While the rebuilding time frame in the amendment is shorter than 30 years and the commercial quota is reduced by 45 percent, not 50 percent, NMFS is implementing a number of other management measures that should reduce fishing mortality and increase the reproductive potential of several stocks in the LCS complex. For example, the time/area closure will protect juvenile sharks as recommended by the 2002 LCS stock assessment. Numerous studies have shown that protecting this life stage provides the greatest benefit to increasing the population size. Thus, the time/area closure will be more effective at protecting juvenile sharks and rebuilding the population than a commercial minimum size because a minimum size would force commercial fishermen to discard undersized sharks, which would not be counted against the commercial trip limit. This could result in more sharks being caught and potentially discarded. In the long-term, if dead discards were to increase as a result of a minimum size, then the commercial and recreational portions of the optimum yield would decrease and both the commercial quota level and recreational retention limit could be reduced. A minimum size in the recreational fishery does not raise the same concerns because the recreational fishery is believed to have low post-release mortality rates and has already been limited to one shark per trip, not including the exception for Atlantic sharpnose and bonnethead sharks.

NMFS is also implementing other management measures, such as the requirement for commercial fishermen to carry and use line cutters and dehooking devices, that should minimize the mortality of sharks that are caught and released. Together, these management measures, along with accounting for all sources of fishing mortality (including both Federal and State commercial landings, dead discards, and recreational catches), increasing and improving education and outreach, and increasing compliance with the recreational regulations, should give the LCS complex a 70-percent chance of rebuilding within the rebuilding time frame.

An additional significant aspect of the HMS FMP is the requirement that NMFS conduct periodic stock assessments for species or species-groups. If new information indicates that the LCS complex is not likely to be rebuilt within the required time frame, NMFS can adjust management measures, as necessary, to ensure the

70-percent probability of rebuilding the stock over the course of the 26-year rebuilding period. Additionally, as more species-specific information becomes available, NMFS will attempt to conduct species-specific assessments and evaluate possible management measures that could focus on those species that are the most vulnerable or that need the most protection.

Comment 4:

In considering the management options and probability of rebuilding sharks, having an additional set of alternatives with a higher probability of success would have been useful for comparison purposes. As it stands, the most conservative alternatives are the ones chosen as the preferred alternatives and they may be insufficient to meet the management goals. As such, the preferred alternatives in the amendment should be considered the absolute minimum necessary to manage sharks consistent with the advice of the 2002 stock assessments.

Response:

As required under NEPA, NMFS considered a wide range of alternatives designed to rebuild LCS. The range of alternatives included those that could be considered risk-prone (

e.g.

, removing the retention and/or size limits in the recreational fishery) to risk-averse (

e.g.

, allowing no retention in the recreational fishery). From all the alternatives considered, NMFS selected a group of alternatives that, consistent with the Magnuson-Stevens Act, is likely to rebuild the LCS complex within the revised rebuilding time frame while allowing for a viable shark fishery. If warranted based on the results of future stock assessments, NMFS can adjust the commercial quota or other management measures to ensure the 70-percent probability of rebuilding the stock over the course of the 26-year rebuilding period.

Comment 5:

The proposed rebuilding time frame is the maximum allowed under the National Standard guidelines and is set using the entire complex rather than considering the biology of each individual species. We encourage NMFS to consider stratifying the time frame by considering the biology for individual species.

Response:

NMFS would like to move toward more species-specific management in the future and will do so if fishermen can demonstrate a better ability to target and/or avoid certain species of sharks, species-identification among commercial and recreational fishermen and commercial dealers improves, and enough scientific data are collected that allows for more species-specific stock assessments. Thus, NMFS will consider revising the basis for calculating the commercial quota and the classification scheme to consider a more species-specific approach to management when sufficient data are available to do so effectively.

Comment 6:

The rebuilding time frame should be calculated from the time the fishery was declared overfished, in this case 1999. Restarting the clock based on new assessment information is not required by the Magnuson-Stevens Act.

Response:

NMFS had originally finalized a rebuilding plan in the 1999 HMS FMP that was designed to rebuild ridgeback LCS in 39 years and non-ridgeback LCS in 30 years. This rebuilding plan was based on the projections from the 1998 LCS stock assessment. Based on a peer review of that stock assessment, NMFS determined that the projections from that stock assessment should not be used as the basis for management decisions. For this reason and as a result of the change in status of the two primary LCS species in the fishery, NMFS determined it was necessary to revise the rebuilding plan. Under National Standard 1, a rebuilding plan begins when the first measures to rebuild the stock are implemented. NMFS notes that under this revised rebuilding plan, the LCS complex will be rebuilt by 2030, which coincides with the time period projected for rebuilding non-ridgeback LCS sharks under the 1999 HMS FMP (2029) and is less than the 1999 HMS FMP rebuilding time period projected for ridgeback LCS sharks (2038).

Comment 7:

Applying a 70-percent probability to the setting of a time frame does nothing to enhance conservation and increases risk to the sharks. Choosing the 27-year time frame over a 10-year time frame is, at best, conservation neutral because the management measures, at least for 2004, are the same regardless of the rebuilding end date. At worst, choosing the longer time frame is riskier because it allows shark stocks to linger longer at lower biomass levels and could allow for inappropriate increases in fishing effort in future years before the complex is rebuilt.

Response:

The 70-percent probability of achieving the rebuilding target will enhance conservation, reduce risk, and facilitate rebuilding of LCS. NMFS disagrees that a 10-year time frame would be consistent with the same management measures applied under the revised 26-year time frame. In the HMS FMP, NMFS decided to use a higher probability standard for sharks because the biology of sharks is different than other HMS and fish in that they take a number of years to mature, have few pups per brood, and generally only reproduce every other or every three years. This, combined with the fact that they are migratory and that some of their prey species are overfished, has led to the determination that a higher level of certainty is required when setting management actions for sharks. Under a 10-year rebuilding time frame, even with a closure of the fishery, NMFS still would not reach a 70-percent probability of rebuilding the LCS complex.

Comment 8:

Probabilities of success should be applied only once a rebuilding time frame is set. The HMS FMP, other FMPs, and courts have all noted that management measures must have at least a 50-percent chance of success. The 2002 LCS stock assessment found that a 50-percent reduction in catch has a 50-percent chance of rebuilding the LCS complex within 10 years. Thus, the plan meets the minimum probability of success. Ironically, NMFS does not apply the 70-percent guide to the selected time frame, noting instead that 64 percent is close enough.

Response:

By applying probabilities of success only once a rebuilding time frame is set, NMFS would have no basis for determining whether or not a stock could likely rebuild in less than 10 years or more than 10 years. This could result in unrealistic rebuilding time frames that could be so short as to leave no option other than closing the fishery or that could be so long as to never result in rebuilding the stock. Instead, NMFS uses the probability of success both in setting the rebuilding time frame and in selecting all the alternatives to ensure that, taken together, the suite of alternatives will meet the probability standard. Thus, in Amendment 1, while reducing the overall catch by 45 percent does not give a 70-percent probability of success, the combination of catch reductions with other management actions that will likely reduce mortality of released catch or protect juvenile sharks does have a 70-percent probability of success.

2. Commercial Management Measures

A. LCS Classification

Comment 1:

NMFS received a range of comments regarding the proposed classification. Comments received included: It is easier to comply with one closure date; violators can take advantage of two closure dates. We support the preferred alternative because it will simplify the regulations and reduce regulatory discards. We agree that species-specific quotas are not reasonable now and therefore support

the re-aggregating the LCS complex; however, NMFS should not abandon the goal of species-specific management. Because fishermen can actively target sandbar and blacktip sharks, we prefer the alternative that allows for species-specific shark groupings or, alternatively, the ridgeback/non-ridgeback species groupings. The stock assessment recommended that every effort be made to manage the LCS fishery on a species by species basis; thus, we support LCS groupings with different closure dates possible.

Response:

NMFS considered five different LCS classifications in developing the proposed and final rule. The aggregate LCS classification with one closure date is preferred because, in combination with the other preferred alternatives, it is (1) expected to maintain historic fishing practices (since 1993) and food availability in the market place, (2) expected to reduce burden on fishermen for sorting, (3) expected to decrease, or at least not increase, the number of protected resource interactions; and (4) not expected to increase regulatory discards. During this rulemaking process NMFS heard that many fishery participants cannot accurately identify or effectively target individual shark species. As such, NMFS does not believe that a species-based classification is warranted at this time, but will reconsider this issue when the ability to identify and target shark species improves.

Comment 2:

The preferred alternative is the same classification that was in place from 1993 through 2002 but is not consistent with the rebuilt status of sandbar and blacktip shark or the economic needs of shark fishermen.

Response:

The final action for LCS classification (

i.e.

, aggregate LCS, one closure date) seeks to minimize bycatch (

i.e.

, regulatory discards) of both rebuilt and overfished species of LCS, which would otherwise occur under separate closure dates or partial closures of a mixed fishery. While sandbar and blacktip sharks are no longer overfished and, in the case of blacktip sharks, may be able to withstand an increase in harvest, NMFS also needs to rebuild overfished LCS. As noted above, species-specific management is not feasible at this time. This final action allows fishermen the opportunity to catch the entire quota without decreasing efficiency (

i.e.

, increased time to sort catch, increased time at sea to make up for lost catch resulting from regulatory discards, etc.), thus, maximizing economic benefits as compared with the other classification alternatives considered.

Comment 3:

NMFS should increase research, survey, and monitoring efforts to acquire the critical information on individual life histories, ecological requirements, and stock conditions to enable more species-specific management. NMFS should develop a plan of action for moving towards species-specific management in the future.

Response:

NMFS is supportive of increasing scientific research, surveys, and monitoring efforts of shark populations, provided that funding is available to do so. Currently, NMFS funds a number of shark focused research programs including, but not limited to: (1) Cooperative shark research (

i.e.

, between Southeast Fisheries Science Center and Mote Marine Laboratory), (2) reducing blue shark bycatch in pelagic longline fisheries, (3) delineation of winter nursery grounds, migratory patterns, and critical habitat of juvenile sandbar sharks in the western Atlantic Ocean, and (4) various observer programs in the shark fishery. NMFS will review species-specific information and incorporate such information into stock assessments, as appropriate, as it becomes available and intends to pursue workshops to improve species identification by fishermen and dealers in the future. As such, NMFS may consider implementation of species-based LCS classifications when the ability to accurately identify and effectively target shark species improves.

Comment 4:

National Standard 1 requires NMFS to adopt alternatives that result in the lowest quotas for vulnerable and overfished species and minimize bycatch to the greatest extent possible. Therefore, NMFS should adopt the alternative that aggregates LCS and closes the fishery when the quota for the most vulnerable species is meet.

Response:

Of the LCS classification alternatives considered, the LCS classification final action best complies with National Standard 1 because it, in combination with the final action for the quota basis, prevents overfishing and facilitates rebuilding of LCS while achieving optimum yield on a continuous basis from the fishery. Additionally, the selected alternative is expected to decrease, or at least not increase, the number of protected resource interactions and not expected to increase regulatory discards, which is consistent with National Standard 9. Closing the fishery when the quota for the most vulnerable species is met is not a viable alternative at this time because to date there is limited data available on individual LCS species beyond that of sandbar and blacktip. Without species-specific assessments, it is difficult to say which LCS species have highest vulnerability or even what the quota should be for any individual species. NMFS may consider this alternative as more information becomes available in the future.

B. Shark Quota Administration

Comment 1:

NMFS received a range of comments regarding the combination of regional quotas and trimester seasons (

i.e.

, three four-month periods). Comments included: We support the proposed administration of regional and trimester seasons. We cannot support the proposed administration of regional and trimester seasons. Regional and trimester seasons will provide for more flexible management and improve quotas as a management tool. The regional quotas and trimester seasons will force vessels down to Florida for the January opening and will force them to fish for a shorter amount of time.

Response:

NMFS considered three separate alternatives regarding seasons and two alternatives pertaining to regional quotas. NMFS is implementing trimester seasons with regional quotas because this combination will (1) aggregate the majority of shark pupping into one fishing season (

i.e.

, second trimester) as opposed to divide it into two or more seasons, which is possible with either the semi-annual or quarterly season approaches, (2) provide managers with flexibility to adjust regional quotas, where necessary, to prevent mortality on juveniles and reproductive female sharks, (3) provide a higher degree of resolution on which to manage seasonal fisheries, (4) minimize the social and economic costs associated with switching gear more often (

i.e.

, only three times as opposed to four per year), (5) give a higher percentage of the quota to each open season than would occur under a quarterly season approach, and (6) will increase the number of open seasons (

i.e.

, three as opposed to two) and spread them across the calendar year, thereby promoting greater economic stability of fishery participants.

Comment 2:

NMFS received a range of comments regarding the proposed trimester approach. Comments included: The entire season, from January through November, should be closed to protect fish. The second semi-annual season closes too early. The trimester seasons will spread out the landings and avoid current price drops. The trimester approach will allow fishermen to catch sharks when grouper prices are lower and helps sharks be available year-round. Trimester seasons

appear to have the greatest potential to accommodate shark pupping activities. The second trimester season should be closed to all shark fishing to reduce the catch of juveniles.

Response:

NMFS considered three different seasons for the shark fishery in the development of the proposed and final rule. Trimester seasons (

i.e.

, three four-month fishing seasons) are preferred because they will allow managers the flexibility to open and close seasons to match species requirements such as aggregating shark pupping seasons into one fishing season, as opposed to spreading pupping time-frames over multiple open seasons. Trimesters will also avoid undesirable dates (

i.e.

, July 1st) for market openings. Additionally, trimester seasons will give fishermen a greater chance to build new markets for sharks, given that there will be more open seasons (

i.e.

, three as opposed to two) spread across the calendar year. Increasing the number of open seasons and effectively spreading open seasons out more evenly over the calendar year will, in the long-term, result in greater economic stability for fishermen and associated communities.

Comment 3:

NMFS should keep the semi-annual seasons and open the second season on July 15th each year.

Response:

Maintaining semi-annual seasons could have negative ecological, social, and/or economic impacts should semi-annual seasons continue to extend into pupping seasons. Given that LCS are overfished and overfishing is occurring, continued mortality levels on juvenile and reproductive females could cause the complex to decline further over time. Further declines in LCS stock status could result in additional reductions in available quota and/or other management measures, which could impact fishermen and fishing communities both economically and socially. Trimester seasons will aggregate the majority of shark pupping into one fishing season (

i.e.

, second trimester) and simultaneously avoid market problems associated with a July 1st opening by providing for openings on January 1, May 1, and September 1 of each year.

Comment 4:

NMFS should start each season at the same time to help disperse fishing effort and promote equitable distribution of the allowable quota.

Response:

While opening shark seasons at the same time for all regions may help to disperse fishing effort and promote equitable distribution of the allowable quota, allowing managers flexibility to determine alternative season opening dates (

i.e.

, by region) will promote further consideration of safety at sea and give greater fishing opportunities based upon fish availability in each region.

Comment 5:

August and September are not good times for shark fishing. Most of the effort should be in October through December. Therefore, the quota should be reapportioned from the first two trimesters to the last trimester.

Response:

NMFS recognizes that there are temporal differences in catch-per-unit-effort as well as catch composition in the shark fishery. As such, annual quotas need not be split equally between trimester seasons. Instead, trimester seasons will allow managers to establish quotas for each open season based on markets, pupping season, effort concerns, and other relevant factors. Initially, NMFS will split the available quota equally between trimesters for the first year or two and will re-evaluate this approach via rulemaking, if necessary, based upon observed catch rates and other factors, such as stock status.

Comment 6:

NMFS received a range of comments specific to the proposed percentages for regional quotas. The comments included: The historical percentage of small coastal sharks in the Gulf of Mexico is incorrect due to improper identification and reporting. The regional quota proposed for the North Atlantic is below the actual take and would be filled quickly between the vessels fishing in the region. The North Atlantic proposed portion of the LCS quota is too large and should be reduced; the percentage was probably inflated due to misidentification of sandbar sharks. The South Atlantic proposed portion for SCS is too large due to misinformation and misidentification; there are just as many LCS reported in that region as SCS. We can only support regional quotas if one region does not prevent another region from having a fair shot at the fishery.

Response:

NMFS combined information from two separate databases containing regional landings information as reported by dealers and states to NMFS over several years. These landings data represent the best available information pertaining to regional data. Given that the regional quotas seek to maintain historical landings, as opposed to reducing landings, NMFS does not expect this alternative to change previous fishing practices or result in any significant economic impact. Fishery participants will be allowed to fish in any region, provided that the season for the region in question is open and that the quota for that region has not been taken. Over time, this alternative may allow NMFS the flexibility to manage quotas to each region's maximum economic advantage. Additionally, if reporting indicates that participation in one region increases or decreases, NMFS may, through another rulemaking, modify the percentages available to each region to ensure that fishermen in all regions have a reasonable opportunity to fish for sharks. NMFS recognizes the need for more accurate species identification and as such, the agency will pursue mandatory workshops through a future rulemaking that will focus on improving species identification by fishery participants and possibly dealers and enforcement agents.

Comment 7:

How will NMFS enforce the regional quota approach? Will there be three separate permits for vessels fishing within the regions or can a vessel fish in an open region and land catch in a closed region? We are only supportive of the regional quota approach if permitted vessels can fish in any region.

Response:

Federal fishery participants will be allowed to fish in any region, provided that the season for the region in question is open and that the quota for that region has not been taken. As such, NMFS will not be issuing regional permits to vessels authorizing them to fish in a given region. Rather, each regional quota will be enforced by monitoring illegal fishing activity in each region, as is done in the Atlantic bluefin tuna fishery. As is current practice, the closure date for each region will be announced before the start of the season. Additionally, state agencies may have different permit and closure requirements. As such, fishery participants are encouraged to check with state agencies, where state permit and/or closure requirements are in question.

Comment 8:

NMFS should not use data from 1999 to 2001 to establish the regional quotas. Instead, NMFS should use data from the 1980s (

i.e.

, before management) in order to get an idea of where the fishery historically operated. If this is done, the North Atlantic will account for over half the landings.

Response:

Calendar years 1999-2001 were used as the basis for establishing regional quotas because they (1) represent the period of time following the last major change in management of the shark fishery, (2) fall after implementation of limited access permits, and (3) represent the time-frame for which the best regional data are available. Using a longer timeframe or only data from the past may not provide an accurate representation of the current fishery. Over time, NMFS may, if warranted, decide to adjust the

regional quotas via rulemaking to ensure each region has an opportunity to fish.

Comment 9:

NMFS should pay particular attention to regional differences in shark pupping activity and use its discretion in allocating quotas and setting seasons so as to best prevent mortality of congregating pregnant females, pups, and juveniles.

Response:

Spatial differences in fishery practices and catches warrant further consideration, and regional quotas provide a means of preventing mortality of congregating reproductive females, pups, and juvenile sharks. Shark pupping data indicate that spatial differences exist between species utilization of various shark pupping grounds. For example, species within the SCS complex utilize pupping grounds between South Carolina and the Gulf of Mexico, whereas some species within the LCS complex utilize only the Atlantic coast for pupping grounds. NMFS will periodically assess regional differences in shark pupping activity and should changes be required, quota adjustments will be carried out via framework action.

C. Shark Quota Basis

Comment 1:

We support the preferred alternative of an MSY basis. In the future, NMFS should estimate MSY on a species-specific basis for all LCS. NMFS should establish a similar approach for pelagic sharks when a validated assessment is available.

Response:

Amendment 1 uses MSY as a basis for establishing commercial quotas. NMFS must determine MSY as well as optimum yield (OY) and specify status determination criteria to determine the status of the stock. As such, the 1999 HMS FMP defined fishing mortality and biomass levels necessary to produce MSY and OY on a continuing basis. Given that these definitions are not subject to change in this final rule, MSY-based quotas provide a direct means for determining appropriate fishery management action. MSY and OY estimates are readily available from stock assessment outputs and can be updated annually if necessary. NMFS is currently limited in its ability to estimate MSY for all shark species within each of the management units. However, as new information becomes available, NMFS will strive to integrate more species-specific information into stock assessments, where MSY could be calculated. Once the international stock assessment for pelagic sharks is complete, NMFS will re-evaluate the appropriateness of existing pelagic shark quotas and the basis for calculating commercial quotas for these species.

Comment 2:

NMFS received several comments regarding the reduction in LCS quota by 40 percent instead of the recommended 50 percent. Comments included: Because the proposed alternative reduces MSY by only 40 percent instead of the recommended 50 percent, NMFS should adopt other conservation methods such as gear restrictions and time/area closures whose effects can be quantified to show that they achieve the mortality goal of rebuilding with a 70-percent probability. The 40-percent reduction is not reasonable; there is no reliable basis to stray from the scientific advice. The assessment recommendation is based on a 50-percent probability of successful rebuilding; if NMFS were to apply the 70-percent guide, the proposed reduction would be larger not smaller than 50 percent. Therefore, NMFS should reduce the quota by a minimum of 50 percent.

Response:

The preferred quota alternatives will implement an LCS aggregate quota based upon a 45-percent reduction of average maximum sustainable catch (MSC) for LCS, multiplied by the percentage of commercial catch attributable to the LCS complex. NMFS reduced the 50 percent recommended reduction by five percent after considering the following factors: (1) While the stock assessment did say that the LCS complex should be reduced by 50 percent, it also said that the reductions should be on species other than sandbar and blacktip; (2) observer data indicates that sandbar and blacktip sharks comprise approximately 67 percent of the LCS catch, indicating that a quota reduction would mostly apply to those species; (3) peer reviews of the 2002 LCS stock assessment indicated that the complex assessment may not be as accurate as individual species because of biological differences between species; (4) catch per unit effort (CPUE) data for silky, tiger, and scalloped hammerhead do not indicate a decline; and (5) the other preferred measures such as the time/area closure will reduce mortality and/or dead discards. Furthermore, the percent reduction has been revised upward from the 40-percent reduction originally proposed in the draft Amendment based upon public comment received during public hearings. The Southeast Fisheries Science Center has indicated that the combination of the preferred alternatives, namely the 45-percent quota reduction and time/area closure, would increase compliance in the fishery and allow for the LCS complex to rebuild within the specified time-frame. As such, further reductions in the LCS commercial quota are not necessary at this time. However, NMFS will adjust the quota over time based upon future stock assessments to ensure that the LCS complex rebuilds within the 26-year rebuilding time frame.

Comment 3:

NMFS must also account for state fisheries mortality estimates when setting quotas.

Response:

State landings are included as part of the commercial landings percentage used to calculate the commercial quotas. Thus, the commercial quota is established to include landings by Federal and state fishermen. Any overharvests or underharvests will be accounted for in the same season of the following year.

Comment 4:

We support the preferred alternative but the draft amendment is unclear on how information from future stock assessments will be used in setting quotas. Would the same percent of MSY always be used regardless of the population level?

Response:

The LCS aggregate quota is based upon a 45-percent reduction of average MSC for LCS, multiplied by the percentage of commercial catch attributable to the LCS complex. As such, this percent reduction may not be used when setting future quotas. Instead, NMFS will assess the appropriateness of percent reductions and/or increases as new information becomes available in future stock assessments in order to ensure that the LCS complex rebuilds within the rebuilding timeframe.

Comment 5:

We support the proposed MSY basis as long as that calculation continues to incorporate a target fishing mortality rate at 75 percent of the fishing mortality at MSY (F

MSY

). We would also support expanding this precautionary buffer by lowering the percent of F but not increasing the rate toward F

MSY

.

Response:

The 1999 HMS FMP defined fishing mortality and biomass levels necessary to produce MSY and OY on a continuing basis. In summary, a species is considered overfished when the current biomass (B) is less than the minimum stock size threshold. The minimum stock size threshold is determined based on the natural mortality of the stock and the biomass at Maximum Sustainable Yield (B

MSY

). The MSY is the maximum long-term average yield that can be produced by a stock on a continuing basis. Overfishing is occurring on a species if the current fishing mortality (F) is greater than F

MSY

. When one or both of these measures occur, a species is declared overfished and action to rebuild the stock and/or prevent overfishing is needed within one year.

A species is considered rebuilt when B is greater than B

MSY

and F is less than F

MSY

. A species is considered healthy when B is greater than or equal to the biomass at optimum yield (B

OY

) and F is less than or equal to the fishing mortality at optimum yield (F

OY

). NMFS is not changing these definitions in this rule, thus the target control rule for managing healthy stocks continues to be 75 percent of F

MSY

. This definition is consistent with the National Standard guidelines.

D. Minimum Size Restrictions

Comment 1:

NMFS received a range of comments regarding what the commercial minimum size should be. Comments included: We support the no commercial minimum size alternative. The minimum size in the HMS FMP was based on sandbar sharks but does not fit for all ridgeback LCS species. We support the proposed no minimum size because the minimum size was established for sandbar sharks which is no longer overfished and because it will help reduce regulatory discards. We support a minimum size for sharks. The minimum size of any shark should be 15 feet. If recreational fishermen have a minimum size to protect juveniles, commercial fishermen should have a minimum size as well. We could support no commercial minimum size if juveniles of all species were protected by time/area closures; the proposed time/area closure does not do this.

Response:

NMFS considered six different minimum size alternatives in the commercial fishery. Not implementing a commercial minimum size is preferred because, in combination with the other preferred alternatives, it will minimize regulatory discards and economic and social impacts to commercial fishermen, while providing adequate protection for juvenile and neonate sharks through the time/area closure off of North Carolina. Furthermore, commercial gear, unlike recreational gear, can have high post-release mortality rates. Therefore commercial management measures, which are aimed at reducing (

i.e.

, quota reductions) or preventing (

i.e.

, via time/area closures) catch are better for protecting juvenile and neonate sharks.

Comment 2:

NMFS made a strong case in the HMS FMP for a minimum size based on protecting the age classes with the highest reproductive potential, demographic information, and the proportion of sharks brought to the boat dead. Now that NMFS is backing away from a ridgeback LCS quota, this measure is needed to protect the most sensitive life stages of ridgeback LCS (sandbar and dusky sharks in particular). NMFS should maintain the minimum size, show quantitative analyses that indicate a minimum size is not needed, or replace it with more effective species-specific measures to protect juvenile dusky and sandbar sharks.

Response:

Maintaining the commercial minimum size is not warranted at this time. This rule finalizes several commercial management measures including, but not limited to, trimester seasons, regional quotas, reductions in the LCS quota, bycatch reduction measures, and a time/area closure to protect juvenile dusky and sandbar sharks, which will facilitate rebuilding of LCS.

Comment 3:

If NMFS does not adopt a minimum size, it must adopt a time/area closure to reduce bycatch of juvenile and neonate sharks to levels at least as great as would be achieved with minimum sizes.

Response:

Implementation of a time/area closure would reduce bycatch of juvenile and neonate sharks, but alone, it would not be sufficient to meet the rebuilding target for the LCS complex. As such, NMFS is implementing multiple management measures including, but not limited to reductions in the LCS quota, bycatch reduction measures, and the time/area closure, which are intended reduce bycatch of juvenile and neonate sharks.

Comment 4:

NMFS should establish sub-group or species-specific minimum sizes within the LCS, SCS, and/or pelagic shark species groups as justified by new or updated research.

Response:

Minimum sizes for sub-groups or individual species within each management unit are not necessarily the most effective management measures. While a commercial minimum size would seek to protect and reduce fishing mortality on juvenile sharks, any conservation benefits gained may be offset by increases in regulatory discards and associated post-release mortality if commercial fishermen are unable to avoid mixed-size aggregations of some shark species. For instance, while sandbar sharks tend to segregate by size, blacktip sharks and other species do not. Regulatory discards may also result in effort increases by fishermen in order to make up for lost catches, which could also result in increased interactions with protected (

i.e.,

sea turtles and marine mammals) and non-targeted (

i.e.

prohibited sharks and other finfish) species. Additionally, regulatory discards of LCS are not counted against the 4,000 pound trip limit. Thus, if a fisherman should catch a set full of undersized sharks, those sharks would be discarded and the fisherman could set the gear again, possibly in another school of small sharks. If the ability of fishermen to target certain species of sharks improves, then NMFS may reconsider minimum sizes in the commercial fishery.

Comment 5:

Commercial fishermen have long claimed that most sharks come in alive. Therefore, there does not seem to be any rationale for a recreational minimum size while similar commercial measures are eliminated. A commercial minimum size for mako sharks is overdue. Longliners are willing to compromise for a minimum size on mako sharks.

Response:

Commercial fishery observer data indicate that a number of LCS exhibit low survivability following longline capture. These species include spinner (63 percent dead when brought to the vessel), dusky (81 percent), scalloped hammerhead (87 percent), blacktip (88 percent), silky (90 percent), and great hammerhead (95 percent). As such, NMFS believes that implementation of a minimum size in the commercial fishery would result in significant increases in regulatory dead discards of LCS. However, sharks caught on recreational gear are thought to have low post-release mortality rates and, as such, a minimum size in the recreational fishery would contribute to LCS rebuilding by protecting juvenile and subadult sharks.

E. Commercial Shark Quota: General

Comment 1:

NMFS received a range of comments regarding what the commercial quota level should be, including: Commercial quota levels should be reduced or even eliminated until the complex recovers. Quotas should be reduced by 700 percent. We support the quota alternatives (classification, administration, and basis) insofar as that together they result in the lowest overall quotas to ensure sustainable levels for all species and protect juveniles.

Response:

NMFS did not propose a specific quota level. Instead, NMFS considered a wide range of quotas that resulted from the combination of classification and quota basis alternatives, specifically seven different commercial quotas for LCS and three different commercial quotas for SCS. Each quota alternative carefully considered the results of the 2002 stock assessments for LCS and SCS. The preferred quota alternatives will implement commercial quota levels of 1,017 mt dw for the LCS aggregate and 454 mt dw for the SCS aggregate. These quota levels are expected to rebuild the LCS complex within the necessary time

frame and prevent overfishing of SCS. If future stock assessments indicate adjustments are necessary to meet these goals, then the preferred quota basis alternative will allow NMFS the flexibility to address such adjustments.

Comment 2:

The most recent stock assessment called for a 50-percent reduction in catches for the LCS complex but the preferred alternatives combined result in a 34-percent reduction in commercial catch from recent years (1,692.7 mt dw to 1,109 mt dw). While the additional measures may result in further reductions in mortality, the other proposed measures could increase the quotas and undermine management.

Response:

The combination of preferred alternatives including, but not limited to, a commercial quota with a 45-percent reduction in catches and a time/area closure aimed at protecting juvenile and neonate sharks will rebuild the LCS complex. Analyses by the Southeast Fisheries Science Center indicate that the combination of the preferred alternatives in the draft Amendment would allow for the LCS complex to rebuild within the rebuilding time frame. Furthermore, the other final actions (

i.e.,

trimester seasons and regional quotas) will not result in an increase in quotas, but will allow for more flexibility in management to better refine management measures to protect juvenile sharks and rebuild overfished LCS.

Comment 3:

NMFS received several comments regarding the apparent increase in quota from the total of 816 mt dw in the HMS FMP to the proposed 1,109 mt dw. Comments included: Even though LCS are overfished and overfishing is occurring, NMFS is proposing to increase the LCS quota by 35 percent; this is hard to understand. NMFS should move forward with the MSY quota basis but maintain the 816 mt dw quota level until a new, validated stock assessment can be carried out.

Response:

The no action alternative would implement commercial quota levels for LCS (

i.e.,

620 mt dw for ridgeback LCS and 196 mt dw for non-ridgeback LCS) totaling 816 mt dw, which were approved in the 1999 HMS FMP based on projection models in the 1998 LCS stock assessment. These quota levels were never implemented due to litigation. Taking into consideration the court-approved settlement agreement, the results of the 1998 stock assessment peer reviews, and other information, NMFS maintained the 1997 commercial quotas for LCS (

i.e.,

1,285 mt dw) as an interim measure pending completion of Amendment 1. As such, except for 2003, commercial fishermen have been fishing under the LCS quota of 1,285 mt dw, since 1997. The preferred alternatives, which would implement a LCS quota of 1,017, represent a 21-percent reduction in available quota compared to the 1,285 mt dw baseline.

Comment 4:

The LCS quota component of the species-specific quota alternatives is too low and should be doubled in order to reduce the potential for regulatory discards.

Response:

The species-specific quota alternatives (

i.e.,

MSY and average landings) incorporated an appropriate percent reduction for each species or species group, as recommended in the 2002 LCS stock assessment. Additionally, the 2002 stock assessment clearly indicated that LCS reductions should focus on species other than sandbar and blacktip. Because regulatory discards will occur as a result of implementing species-specific quotas in the LCS fishery, NMFS selected alternatives, which in combination with one another will aggregate LCS species and establish one commercial quota for the complex.

Comment 5:

Fishing pressure on all LCS species except sandbar and blacktip has been abated since the HMS FMP. Any need to reduce the potential for bycatch of the other species via the use of an aggregate quota at a low quota level is inconsistent with the status and biomass levels of the principal commercial species and subject to the practicability standard of National Standard 9. It is not practicable to reduce the commercial fishery now that the primary commercial species are rebuilt.

Response:

Amendment 1 seeks to rebuild the LCS complex, which is overfished. Consistent with National Standard 9, the preferred alternatives, which would aggregate LCS species and establish one commercial quota for the complex, will , to the extent practicable, minimize bycatch (

i.e.,

regulatory discards of shark) resulting from partial closures (

i.e.,

multiple closure dates by LCS grouping or individual species as a result of quotas being taken) of a mixed fishery and allow fishermen the opportunity to catch the entire quota. Additionally, the number of protected resource interactions may decrease, or at least not increase, because fishermen would not have to increase effort in order to make up for lost catch during partial closures and the LCS quota will be lower as a result of the preferred alternatives.

Comment 6:

Mexican fishermen catch huge amounts of sharks. Why are U.S. fishermen limited? These limitations on U.S. fishermen has kept prices down.

Response:

NMFS has regulatory jurisdiction over the exclusive economic zone (

i.e.,

from generally 3 nautical miles seaward to the 200 nautical mile limit) in U.S. waters but cannot regulate the fishing activities of other countries. However, consistent with the National Plan of Action and the Shark Finning Prohibition Act, NMFS is continuing cooperative research efforts with other countries (

e.g.,

Canada and Mexico) and engaging in deeper dialogues with international fishery management organizations such as the International Commission for the Conservation of Atlantic Tunas (ICCAT), the United Nations General Assembly, Food and Agriculture Organization (FAO), and others as appropriate for shark management.

Comment 7:

We need an adequate incidental quota to reduce/eliminate regulatory discards and cover the inevitable secondary catches in many fisheries.

Response:

An incidental quota or similar alternatives could be a viable alternatives for reducing regulatory discards. NMFS will investigate this issue in a future rulemaking.

3. Recreational Management Measures

A. Retention Limit

Comment 1:

NMFS received a range of comments regarding the appropriate recreational retention limit, including: We support the preferred alternative and suggest that anglers also be allowed one additional blacktip shark because the stock is rebuilt. Only one shark of any species per vessel per trip should be allowed because most recreational anglers cannot identify individual shark species. The proposed alternative is appropriate and precautionary because the recreational sector has been fishing under regulations based on a stock assessment that was overturned and, therefore, contributed more to rebuilding. We do not oppose the proposed addition of bonnethead, but urge NMFS to monitor this species to prevent overexploitation; South Carolina has already taken the proposed action based on the same stock assessment results. Any additional catch reductions that may be required to meet management goals should come from the commercial sector before considering further cuts to the recreational sector. Recreational fishermen kill sharks for no reason and cause numerous dead discards to wash up on the beach. Recreational take levels should be reduced.

Response:

One shark per vessel per trip plus one Atlantic sharpnose and one bonnethead shark per person per

trip is appropriate for the recreational shark fishery. This alternative could reduce recreational harvest levels by the 80-85 percent required under the rebuilding plan in Amendment 1 if angler compliance increases. NMFS analyzed other alternatives in Amendment 1 that would have allowed the retention of additional LCS, SCS, and pelagic sharks. However, because the 2002 LCS stock assessment indicates that the LCS complex needs a reduction in fishing mortality and many recreational anglers cannot correctly identify sharks, those alternatives would not achieve the level of reduction needed to rebuild LCS. With regard to discards and mortality in the recreational fishery, NMFS urges anglers to comply with size and retention limits and release sharks in a manner that maximizes their survival. NMFS may adjust size and retention limits in the future based on the results of future stock assessments.

Comment 2:

NMFS received several comments regarding methods of increasing compliance within the recreational fishery, including: Any non-compliance by the recreational sector is due to confusion with the current regulations and, to a lesser extent, the proper identification of different shark species. NMFS can solve these problems by increasing angler education and outreach. Compliance and enforcement is not strong in Federal waters. NMFS should increase outreach by using the internet, linking the HMS regulations to the NOAA weather page, and printing flyers for marinas, Sea Grant, port agents, and states.

Response:

Compliance in the recreational fishery, outreach, and the availability of educational materials needs to be increased. NMFS will distribute a revised Atlantic shark recreational fishery brochure after the final rule for Amendment 1 is published. It will contain information regarding HMS Angling category permits, HMS Charter/Headboat permits, bag limits and minimum sizes, release information, landing restrictions, the no sale provision, HMS tournament registration, tagging information, as well as species that may be retained, and species that must be released. Additional brochures on other HMS fisheries are available. NMFS is also currently producing an identification guide for sharks, tunas, and billfishes of the Atlantic and Gulf of Mexico that should be available shortly. Further, NMFS received public comment in favor of mandatory educational workshops for anglers and commercial fishermen discussing species identification, release techniques, and regulations. NMFS intends to move forward with requiring participation in mandatory workshops in a future rulemaking and will attempt to make voluntary workshops available to the public in the interim.

Comment 3:

The one-shark per boat limit is not a problem except in tournaments where anglers may be forced to decide between keeping an eligible shark or taking a chance on catching a larger one. The difference between allowing one or two recreationally caught sharks would be minuscule on an annual basis, in comparison with what a longliner could kill during the same time period.

Response:

Allowing recreational anglers an additional shark each would not have minor impacts compared to the commercial fleet. Currently, recreational fishermen take more sharks than commercial fishermen (142,000 LCS in 2001 versus 99,200 LCS in the commercial fishery). Additionally, recreational fishermen catch smaller sharks than commercial fishermen (average size of approximately 10 pounds versus 36 pounds in the commercial fishery). This information, combined with the facts that most anglers cannot correctly identify sharks and the LCS stock assessment recommended protecting juvenile LCS, provides support for the one shark limit. Further, the vast numbers of recreational anglers could lead to large numbers of LCS being taken. NMFS analyzed an alternative that would have allowed vessels with HMS Angling category permits participating in registered tournaments, or HMS CHB permit holders on for hire trips, to retain one shark per person, up to two sharks per vessel, per trip, as well as one Atlantic sharpnose and one bonnethead per person per trip. This alternative would have resulted in mortality levels greater than those expected from some of the other alternatives considered and is not consistent with the 2002 LCS stock assessment which indicates that the LCS complex needs a reduction in fishing mortality. Additionally, without more information regarding the status of pelagic sharks, this alternative could have been detrimental to pelagic sharks. However, this alternative could be combined with other fishing controls (

e.g.

, increased minimum sizes) so that overall mortality is not increased. NMFS may consider this approach in the future.

Comment 4:

Many tournaments have restricted eligible species only to makos and threshers in order to avoid the waste of sharks not normally taken for food.

Response:

NMFS appreciates and encourages conservation efforts by anglers and tournament organizers.

B. Minimum Size Restrictions

Comment 1:

NMFS received a range of comments regarding the recreational minimum size, including: We support the proposed alternative because a minimum size helps to promote the live release of young sharks. The number of recreational fishermen who fish for sharks from Maine to Texas could number in the millions, which could significantly affect the mortality of juvenile sharks especially if there is no minimum size. South Carolina has already taken this proposed measure; most recreational anglers support a minimum size larger than is being proposed. Because many fish are killed before they are measured, particularly if they are dangerous, we cannot support a recreational minimum size. An exception to the minimum size for blacknose sharks should be added, because they are not overfished and do not reach the proposed minimum size.

Response:

A 4.5 feet fork length for all sharks and no size limit for Atlantic sharpnose and bonnethead sharks is appropriate for the recreational shark fishery. Sharks caught in recreational fisheries are thought to have low post-release mortality rates and the preferred 4.5 foot fork length minimum size limit should minimize fishing mortality on the stages that contribute the most to population growth by maintaining catch-and-release fishing on juvenile and subadult sharks. The allowances for the retention of Atlantic sharpnose and bonnethead sharks without a minimum size were preferred because these species are easily identified, not overfished or experiencing overfishing, do not commonly reach the current 4.5 foot fork length minimum size limit, and are important recreational catches in some regions. Exceptions for other SCS species were not analyzed in Amendment 1 because of difficulties with identification (

e.g.

, blacknose sharks) or because they are currently experiencing overfishing (

e.g.

, finetooth sharks).

Concerning the safety of anglers who are required to measure live sharks in order to retain them, NMFS recommends that anglers mark areas on the outside of fishing vessel hulls (

e.g.

, at the waterline or boot stripe) with the minimum size. If a shark is smaller than this measurement or if it is a prohibited species, it should be released.

Comment 2:

Information on proper release techniques and equipment should be made available to the recreational sector.

Response:

Workshops demonstrating proper handling and release techniques for finfish, sharks, and protected resources, and discussing regulations and species identification could reduce bycatch mortality, improve compliance with current regulations, and improve accuracy of reported data. NMFS intends to move forward with requiring participation in mandatory workshops in a future rulemaking and will attempt to make voluntary workshops available to the public in the interim.

C. Authorized Gears

Comment 1:

NMFS received a range of comments regarding authorized gears, including: We support the preferred alternative. Recreational fishing techniques should be limited to rod and reel and handlines. Spearfishing gear should also be added to the list of allowable recreational fishing gears. Bandit gear is not appropriate for the recreational fishery. Bandit gear should be an allowable gear. Harpoon gear should be added to the list because many fishermen feel it is easier and safer to use harpoons than gaffs.

Response:

Rod and reel and handline gear are appropriate gears for the recreational shark fishery, because they have lower bycatch and bycatch mortality of sharks, finfish, and protected species, and are being used in other recreational HMS fisheries. Bandit gear was not selected because it has traditionally been considered a commercial fishing gear and because the vast majority of recreational fishermen use rod and reel or handline gear. Spearfishing gear has not been an allowable gear in the recreational shark fishery and therefore was not included. However, implements used to secure rod and reel or handline catches alongside a vessel (

e.g.

, gaffs and harpoons) are being allowed.

Comment 2:

Limiting the recreational fishery to handline and rod and reel would prohibit landings by recreational gillnet fishermen.

Response:

This is correct. All sharks caught recreationally with gears other than rod and reel and handline in Federal waters must be released. NMFS does not believe that this measure will increase discards substantially, because the vast majority of recreational fishermen already use rod and reel or handline gear and recreational fishermen, including those using gillnets, have been limited to one shark per vessel per trip since 1999.

Comment 3:

NMFS should provide a provision that would allow disabled anglers who cannot hold the gear to fish.

Response:

NMFS will continue to allow fishermen who are unable to operate rod and reel or handline gear to apply for an EFP that would allow them to fish for sharks recreationally with alternative gear.

4. Bycatch Reduction Management Measures

A. Gear Restrictions

i. Authorized gear.

Comment 1:

NMFS received a range of comments regarding the proposed regulation to ban drift gillnet fishing and allow strikenet fishing only, including: Strikenetting and drift gillnetting should be stopped. No observations of these gear types is accurate. Because of bycatch problems, many states have passed regulations banning drift gillnets; therefore, NMFS should as well. Gillnets should not be allowed because, in addition to unacceptable levels of bycatch of sea turtles, marine mammals, red drum, tarpon, and other game fish, the small shark gillnet fishery in Federal waters off Georgia drains limited law enforcement resources that are needed elsewhere. We support the preferred alternative allowing strikenets only if observer coverage is maintained to document a reduction in bycatch. If there is no reduction, this gear type should be removed from the list of authorized gear types. There is no reason to close the shark gillnet fishery because bycatch of protected resources is within the allowance for those species. NMFS should not eliminate a viable fishery that has reliable observer science behind it. There are only five vessels remaining in the fishery, which is down from the historic twelve vessels that used to participate.

Response:

The intent of the proposed bycatch alternatives were to minimize bycatch and bycatch mortality to the extent practicable. The strikenet only alternative minimizes interactions with protected resources and reduces the bycatch of non-target species, while allowing the commercial shark gillnet fishery to operate. However, NMFS received public comment that allowing the use of strikenets only would not accomplish this objective because strikenet gear cannot target SCS. Therefore, the final regulations permit the use of drift gillnets with possible gear modifications or other measures being implemented through a future rulemaking, based upon further study.

Comment 2:

The State of Georgia has requested a ban on gillnets since 1992 and continues to request this ban. Because Georgia has banned gillnets, the presence of a gillnet fishery in adjacent Federal waters compromises State management and regulatory statutes and does not meet the standards for consistency required under Georgia's Coastal Zone Management Act (CZMA) program. Using Global Positioning System (GPS) technology, it may be possible for NMFS to close the Exclusive Economic Zone (EEZ) to gillnets adjacent to Georgia to alleviate ongoing consistency and enforcement problems.

Response:

The CZMA (1972, reauthorized 1996) requires that Federal actions be consistent with the enforceable policies of all state coastal zone management programs. NMFS has determined that the final actions in Amendment 1 and this rule, which seek to rebuild the LCS complex, prevent overfishing of the LCS complex, and prevent overfishing of other species of sharks, 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 coastal zone management programs.

The State of Georgia objects to the consistency determination due to the continuing operation of the shark gillnet fishery in Federal waters. NMFS has analyzed several bycatch alternatives in Amendment 1, including elimination of the shark gillnet fishery. However, data currently available indicate relatively low rates of bycatch and bycatch mortality of protected species and other finfish in this fishery. In the Biological Opinion (BiOp) conducted for this rulemaking, NMFS determined that the continued operation of the shark gillnet fishery would not jeopardize any endangered or threatened resources and issued a new incidental take statement for the fishery. Therefore, NMFS is not prohibiting the use of this gear at this time, consistent with National Standard 2 which requires that management measures be based on the best scientific information available. NMFS is finalizing a measure that will require all shark gillnet vessels to install and activate a VMS during right whale calving season, and will examine gear modifications or other alternatives to reduce bycatch and bycatch mortality in future rulemakings. NMFS will also 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 Amendment 1 are consistent with Georgia's Coastal Zone Management Program to the maximum extent practicable.

Comment 3:

If only strikenetting is allowed, the State of Georgia would continue to ask for 100 percent observer

coverage because the reduction of bycatch using strikenet gear in or near Georgia waters has not been adequately investigated. Unlike the waters off Florida, the waters off Georgia are highly turbid. Without adequate observer data, allowing strikenetting for sharks is not a risk-averse strategy to reduce bycatch.

Response:

This rule does not remove gillnet gear from the list of authorized gears in the commercial shark fishery. The Agency understands the concerns about the need for adequate observer data documenting gillnet operations and catch near Georgia waters and will continue to monitor catch and bycatch, protected species interactions, and fishery characteristics through continued observer coverage.

Comment 4:

Many states ban both longling and gillnetting without adequate data. If longlines are allowed in Federal waters, then gillnets should similarly be allowed.

Response:

NMFS has banned gear types (

e.g.

, gillnets in the swordfish fishery) and restricted the use of other gear types (

e.g.

, area closures in the pelagic longline fishery) for a variety of reasons including reducing bycatch and bycatch mortality. In this case, NMFS is not removing gillnet gear from the list of authorized gears at this time.

Comment 5:

Blacktip and Atlantic sharpnose sharks make up the majority of our drift gillnet landings and are not overfished or experiencing overfishing according to the latest stock assessments. Our biggest discard species in the LCS fishery are rays. In the small coastal shark fishery, our biggest discard species is king mackerel and we have petitioned the South Atlantic Fishery Management Council to allow us to retain more of this catch per trip.

Response:

The latest LCS and SCS stock assessments indicate that Atlantic sharpnose and blacktip sharks are not overfished and overfishing is not occurring. In regard to the reduction of bycatch and discards, NMFS supports the reduction of bycatch, including regulatory discards, in HMS fisheries. According to 2002 shark gillnet fishery observer data, king mackerel was observed to be the species most commonly discarded from drift gillnet sets, with approximately 248 fish discarded; however, great barracuda (approximately 4 fish) and cownose rays (one fish) were observed to be the most commonly discarded species from strikenet sets. Little tunny, king mackerel, and great barracuda were the three non-target species most commonly observed caught in the shark gillnet fishery in 2002. In a future rulemaking, NMFS will consider additional alternatives such as gear modifications to reduce bycatch of all species in the gillnet fishery.

Comment 6:

The preferred alternative allowing only strikenet gear appears as if the Agency is trying to supercede the actions of both the Atlantic Large Whale Take Reduction Plan and the Bottlenose Dolphin Take Reduction Plan. Negotiated actions with members working on these plans are about to become final. If NMFS eliminates the use of gillnet gear, it would be wrong and set a dangerous precedent. Instead, NMFS should start a buyout program for these vessels and regularly attend take reduction plan meetings. There is no support from either take reduction team to ban drift gillnetting.

Response:

As part of this rulemaking, NMFS analyzed the impacts of various bycatch alternatives on bycatch species and protected resources in an attempt to minimize bycatch and bycatch mortality in HMS fisheries to the extent practicable. In this final action, NMFS is not implementing measures to limit or remove gillnet gear from the list of authorized gears. A buyout program is beyond the scope of this rulemaking, but could be considered in the future should funding become available.

Comment 7:

The only way to fish for small sharpnose sharks is with a drift gillnet in deep water. Strikenet gear will not work because it only catches large coastal sharks.

Response:

NMFS has reviewed available shark gillnet fishery observer data and agrees that strikenet gear does not appear to be effective at catching Atlantic sharpnose sharks. For this reason, and reasons discussed above, drift gillnet gear will not be banned in this rulemaking.

Comment 8:

Enforcement efforts in the EEZ could be complicated due to similarities between drift gillnet and strikenet gear.

Response:

NMFS agrees that enforcement efforts could be complicated due to similarities between drift gillnet and stikenet gear. For this reason, and reasons discussed above, drift gillnet gear will not be banned in this rulemaking.

Comment 9:

The five vessels actively using drift gillnet should be given gillnet endorsements on their directed shark permits to limit entry into the fishery. NMFS should consider allowing the five fishing vessels currently in the fishery to continue and prevent any new vessels from entering the fishery.

Response:

NMFS did not consider specific permit endorsements in this rulemaking, but may consider options to limit vessel participation in the shark gillnet fishery in the future.

Comment 10:

NMFS received several comments regarding the modification of shark gillnet gear to reduce protected resources interactions. The comments include: Instead of banning the gear, NMFS should reduce the allowable length of the gear. NMFS should consider gear modifications to reduce bycatch. My vessel accounted for a large number of interactions between marine mammals and sea turtles until I replaced a large section of my gear; while I still have some interactions with them, they swim away unharmed and are observed to be healthy. I used new gear this past summer with tighter mesh and this increased my sharpnose catch and decreased my interactions with protected species. Fishermen who use shark drift gillnet gear have adapted their gear using corks to keep the gear high in the water and allow any entangled turtles to get to the surface and survive. Fishermen who do not usually fish in the fishery or who use stab nets are the fishermen who catch dead turtles. Instead of banning drift gillnets, NMFS should consider the use of pingers to reduce interactions with protected species.

Response:

Gear modifications have been shown to be effective in other fisheries; however, some modification measures can be difficult to enforce or can be circumvented by altering fishing patterns, resulting in no bycatch reduction. NMFS continues to support research projects regarding effectiveness of gear modifications, to the extent that funding allows, and will consider the possibility gear modifications in a future rulemaking.

Comment 11:

NMFS received several comments regarding sea turtle interactions in the shark gillnet fishery. The comments include: In terms of actual numbers, relatively few sea turtles have been captured in the shark gillnet fisheries. While this fishery is supposed to have high levels of observer coverage, this is not always the case. As noted in the June 2001 BiOp, this fishery can have a large impact on leatherback sea turtles at a time when reproductive females are in the area. I have been fishing 18 years and carried an observer for 10 years; in those 10 years, I have only caught one sea turtle.

Response:

The best available information indicates that relatively few sea turtles have been captured in the shark gillnet fishery. The October 2003 BiOp estimated that over a five-year period the expected take of sea turtles in the shark gillnet fishery would be 10 total loggerhead sea turtle captures with one mortality, and 22 total leatherback sea turtles captures with three mortalities. The BiOp concluded that

the continued operation of the shark fisheries, including the shark gillnet fishery, are not likely to jeopardize the continued existence of the endangered Kemp's Ridley, green, hawksbill, and leatherback sea turtles, and the threatened loggerhead sea turtle. Although there were multiple interactions with leatherback turtles during 2001, NMFS believes this was an anomalous event, possibly associated with changes in environmental conditions. NMFS believes that events such as this can be mitigated through observer coverage, gear modifications, and enforcement.

Comment 12:

I can strike at sharks without “striking” as you define it. I do not use the second vessel.

Response:

NMFS is aware that some vessels have experimented with setting strikenet without using a second vessel. To the extent that these methods are more economical for fishermen, NMFS supports these methods. However, the use of shark strikenet gear in a method inconsistent with the current definitions inside the restricted area could constitute a violation. Requirements for strikenet vessels operating in the restricted area are described in the Atlantic Large Whale Take Reduction Plan regulations.

Comment 13:

NMFS says that only six vessels are in the drift gillnet fishery. There are actually about a dozen that would be affected.

Response:

The best available information indicates that there are five vessels that actively target sharks in the shark gillnet fishery. NMFS believes that there are a number of fishermen who land sharks incidental to their target species in other gillnet fisheries (

e.g,

bluefish, croaker, mackerel). All of these fishermen are affected by the general management measures such as changes in the commercial quota and the establishment of regional quotas. However, only those fishermen who actively targeted sharks would have been affected by the proposed measure to prohibit drift gillnet gear. NMFS is not finalizing that prohibition in this rule.

Comment 14:

The bycatch of red drum in the shark gillnet fishery is of serious concern, given interstate effort to reduce bycatch of this species. Red drum is an overfished species whose harvest is strictly regulated with slot limits to promote its recovery.

Response:

Red drum is caught incidentally in the shark gillnet fishery. However, the limited amounts of observed bycatch of this species in the shark gillnet fishery is not expected to impede recovery of the stock. Observer data indicate that the shark gillnet fishery does not catch large numbers of red drum. In 2002, 28 red drum were observed caught, of which, 50 percent were released alive.

Comment 15:

Finetooth sharks are rare in trawl catches off Georgia. However, significant numbers are taken by the shark drift gillnet fishery. Elimination of the shark drift gillnet fishery would contribute towards reducing the overfishing of finetooth sharks.

Response:

The shark gillnet fishery has been observed to target Atlantic sharpnose and blacktip sharks. Elimination of the shark drift gillnet fishery would not be expected to reduce significantly overfishing of finetooth sharks, because they are not a target species. In 2002, 21,978 sharks were observed caught in the shark gillnet fishery. Of those sharks observed caught, 1,615 (7.3 percent) were finetooth sharks.

Comment 16:

The Atlantic sharpnose I catch have stomachs full of juvenile sea turtles. NMFS should calculate how many sea turtles are saved by allowing the drift gillnet fishery to continue.

Response:

NMFS is concerned with all sources of mortality for protected resources and realizes that the ecosystem as a whole needs to be considered when rebuilding species. However, NMFS' can only influence and mitigate anthropogenic sources of mortality, specifically, those due to interactions with fishing gear within NMFS' jurisdiction.

ii. VMS.

Comment 1:

The use of VMS on bottom longline and gillnet vessels, combined with time/area closures to protect juveniles, may help reduce mortality of vulnerable shark stocks beyond what the quota cuts will achieve.

Response:

The preferred time/area closure is designed to reduce bycatch and mortality of neonate and juvenile dusky and sandbar sharks in a known pupping and nursery area. The preferred time/area closure could reduce fishing mortality on the stages that contribute the most to population growth. The use of VMS on shark bottom longline and gillnet vessels will contribute to the enforcement of time/area closures and may enhance the rebuilding of LCS to maximum sustainable yield.

Comment 2:

As a gillnet fisherman, I prefer observers over VMS.

Response:

While NMFS understands that individual fishermen may prefer using observers over VMS, the VMS alternative is preferred as an aid in enforcing time/area closures. Fishery observers are used to monitor catch and bycatch, protected species interactions, and fishery characteristics, and not used specifically for enforcement purposes.

Comment 3:

One commenter was concerned with the utilization of VMS to monitor activities when vessels are engaged in normal fishing operations and not operating illegally.

Response:

Currently, VMS is used in many fisheries managed by NMFS. VMS is the best technology at this time for monitoring vessel locations. It can be used by NMFS to reduce observer program costs, improve the enforcement of time/area closures, to deter illegal fishing, and to increase the efficiency of surveillance patrols. With respect to the shark gillnet and bottom longline time/area closures in particular, the size of the closed areas significantly diminishes the likelihood of detection through conventional means. Traditional methods of surveillance in these areas would be cost prohibitive. Other possible benefits of the VMS include increased safety at sea and dependable and confidential communications.

Comment 4:

If VMS is implemented, NMFS should hold operators, not vessel owners, responsible for violations because the owner has little control over what the operator does with the vessel once it leaves the dock.

Response:

NMFS is aware of vessel owners' concerns, however, for enforcement purposes, both vessel owners and operators will continue to be subject to liability for violations. Vessel owners can employ or terminate operators based on their compliance with fishery regulations.

Comment 5:

VMS should be phased in to reduce negative economic impacts and blended with a communication adaptation that the U.S. Coast Guard uses as a homeland security technique.

Response:

The VMS requirement will only be required for five shark gillnet vessels and any shark bottom longline vessels operating near the time/area closure (approximately 14 vessels). Because this measure will be required for only a select few vessels, it can be implemented with minimal economic impacts and will not affect the vast majority of the shark fishing fleet. To minimize impacts and to give time to NMFS to issue a type approval notice, NMFS is delaying the effective date of VMS in the shark fishery. In regards to communications adaptions and uses of VMS for homeland security, NMFS supports these uses.

Comment 6:

NMFS received several comments regarding the number of vessels required to install and activate a VMS unit. The comments include: VMS is required for all pelagic longline vessels, why would it only be required for a portion of the bottom longline

fleet? VMS should be expanded to all vessels all-year round.

Response:

VMS is required for all pelagic longline vessels to aid in the enforcement of multiple large scale closed areas in a highly mobile fishery. In addition to approximately five shark gillnet vessels, the VMS requirement analyzed in this rule would require vessels located near the time/area closure (approximately 14 vessels) to install and activate a VMS unit. Analyses indicate that while vessels in the pelagic longline fleet are highly mobile, vessels in the bottom longline fleet rarely fish far from their reported homeport. Thus, NMFS believes that requiring VMS for only that sub-population of the shark fishing fleet that fishes in the vicinity of the time/area closures is appropriate because the intent of the measure is to monitor vessel activity to ensure that time/area closures are effective.

Comment 7:

If gillnet gear remains authorized for use in the shark fishery, VMS must be mandatory to ensure compliance during right whale calving season and to facilitate cooperative state/Federal enforcement efforts to monitor this fishery.

Response:

The final action requires shark gillnet vessels to install and activate VMS units during the right whale calving season (November 15-March 31). This measure is expected to facilitate enforcement efforts.

iii. Other Gear Restrictions.

Comment 1:

We support all of the alternatives being considered including limited soak times, reducing the length of the gear, and, especially requiring circle hooks. Reducing soak time and requiring the use of circle hooks could be an effective means of protecting juvenile sharks. These measures could reduce discard mortality of dusky sharks, which remains a candidate for listing under ESA, and other bycatch species.

Response:

NMFS considered multiple gear restriction alternatives in Amendment 1. The preferred alternatives that require VMS on a sub population of commercial shark fishing vessels as well as require shark bottom longline vessels to use corrodible hooks, possess release equipment, and move one nautical mile after an interaction with a protected species.

Comment 2:

It is unclear from the analyses presented in the draft amendment whether the most effective measure to reduce mortality of small sharks would be a series of time/area closures, a minimum size combined with measures to reduce bycatch, or some other plan. Therefore, we express support for measures that seem likely to reduce juvenile shark mortality, especially area closures. However, we encourage NMFS to do a more thorough analysis of the effectiveness of each bycatch reduction measure and to develop a comprehensive bycatch reduction plan.

Response:

NMFS believes that a combination of measures will be most effective in reducing bycatch and bycatch mortality of protected species and small sharks in the shark fishery. Thus, NMFS is implementing a time/area closure, a requirement to possess and use release equipment, and a minimum size in the recreational fishery. NMFS has also issued an implementation plan to enhance current bycatch reduction efforts in HMS fisheries under the guidance of the 1998 NMFS Report, Managing the Nation's Bycatch. This report, which is posted on the NMFS website, contains the Agency's national bycatch goal, which is “to implement conservation and management measures for living marine resources that will minimize, the extent practicable, bycatch and the mortality of bycatch that cannot be avoided.” The NMFS National Bycatch Strategy and the HMS Bycatch Implementation Plan are discussed in Amendment 1.

Comment 3:

The requirement of non-stainless steel corrodible hooks should be readily accepted by the industry and, because most vessels already use these hooks, there will be little or no economic hardships or changes in fishing practices. These hooks corrode in a much shorter period of time and would decrease impairment of feeding and wounding of sea turtles and thus, increase post-release survival.

Response:

NMFS agrees and is implementing a requirement for their use on shark bottom longline vessels.

Comment 4:

NMFS received several comments regarding the requirement for shark bottom longline vessels to move one nautical mile after an interaction with a marine mammal or sea turtle. The comments include: Requiring vessels to move one nautical mile after an interaction with a sea turtle or marine mammal should not significantly affect normal fishing operations because most vessels already move more than one mile after hauling their gear particularly if the set caught sea turtles or a lot of juvenile sharks. Some vessels travel substantially further to dump carcasses from dressed fish in order to prevent contamination of the fishing grounds. Requiring a vessel to move after an interaction with a protected species can be difficult to enforce unless enforcement personnel are on the scene when the gear is retrieved. If sea turtles are caught in gear, the vessel should move 20 nautical miles away, not one.

Response:

NMFS believes that the requirement for shark bottom longline vessels to move one nautical mile after an interaction with a protected species is appropriate for the shark bottom longline fishery. This requirement would reduce the probability of another interaction with a protected species because marine mammals, sawfish, and sea turtles often aggregate in clusters. By requiring vessels to move after an interaction, the vessel would increase the likelihood of avoiding additional animals in a cluster when setting subsequent gear. This requirement could increase fuel costs due to increased the time transiting to another fishing area and increase time needed to fish if alternate fishing grounds are not as productive for target species. However, because few marine mammals, sawfish, or sea turtles have been observed caught, NMFS does not believe that this requirement would affect more than a few trips for all vessels combined, each year. Moreover, NMFS expects that vessels will comply with the requirement because, during normal fishing practices, vessels may already move more than one mile after hauling their gear. Moving more than one mile increases the chance of a vessel encountering another cluster of protected species.

Comment 5:

NMFS received several comments regarding the possession of release equipment on shark bottom longline vessels. The comments include: The safe removal of hooks and line before release can dramatically increase the chances of survival of the released bycatch and has been endorsed by the U.S. pelagic longline fleet, ICCAT, Inter-American Tropical Tuna Commission (IATTC), and various non-governmental organizations (NGOs). The Southeast Fisheries Science Center has developed a line cutter that is safe and effective in removing line from entangled marine mammals and sea turtles in the pelagic longline fishery. Vessels that can boat smaller sea turtles should boat them in order to better control their gear removal procedures. Dehooking devices, line cutters, and dip nets are relatively simple to use and techniques can easily be transferred from fishery to fishery and nation to nation.

Response:

NMFS agrees that there are benefits of using release equipment and is implementing an alternative that will require the possession of release equipment on shark bottom longline vessels.

Comment 6:

Requiring workshops to certify that a permit holder has passed a training course on the proper use of

release equipment would aid enforcement and be more cost effective as a whole. These workshops could also serve as an educational forum for fishermen to learn the latest research and regulations, share concepts for their fishery that could be transferred to other fisheries (

e.g.

, recreational to commercial), gain a feeling of stewardship of the environment and their fishery, learn release techniques in a controlled environment, and develop and promote educational video tapes or literature. The workshops would also give fishermen a chance to talk to, and receive answers from, people in NMFS about regulations they do not understand. This could lead to a better working relationship over time.

Response:

NMFS intends to move forward with this measure in a future rulemaking that will evaluate alternatives and implementation issues. In the interim, NMFS will attempt to make voluntary workshops available to the public.

Comment 7:

We remain deeply concerned that NMFS has failed to offer options for increasing compliance in the recreational fishery after repeatedly acknowledging that anglers do not adhere to the shark regulations and that this non-compliance may be inhibiting stock rebuilding. We urge NMFS to develop programs for angler education in species identification and other efforts to improve compliance. Angler training should be a pre-requisite for obtaining an HMS Angling category permit.

Response:

NMFS agrees that angler education could significantly improve compliance in the recreational shark fishery. In Amendment 1, NMFS analyzed an alternative that would require commercial and recreational fishermen to attend mandatory workshops discussing shark (and possibly other) species identification, marine mammal, sawfish, and sea turtle release techniques, and current regulations. NMFS received public comment in favor of mandatory workshops, and while it appears that mandatory workshops would be beneficial, outstanding implementation and operational issues remain that need to be addressed. Based on these issues, NMFS intends to move forward with this measure in a future rulemaking, and will attempt to make voluntary workshops, informational pamphlets, and an identification guide available in the interim.

Comment 8:

At this time, we cannot support mandatory workshops. Rather, increased fiscal and other agency resources need to be expanded to significantly increase the distribution and availability of educational materials such as improved printed materials, electronic media, and more. Specific instructional/training workshops should be developed to focus on commercial fishing fleets/organizations, charter fishermen, tournament organizers, Marine Recreational Fisheries Statistics Survey (MRFSS)/other survey clerks, state/federal enforcement agencies, and more. Partnerships with other federal and state agencies to distribute this material should be explored.

Response:

NMFS is working to increase outreach and available educational materials. Currently, NMFS is distributing Atlantic shark recreational fishery brochures containing information regarding HMS Angling category permits, HMS Charter/Headboat permits, bag limits and minimum sizes, release information, landing restrictions, the no sale provision, HMS tournament registration, tagging information, as well as species that may be retained, and species that must be released. NMFS is also currently producing an identification guide for sharks, tunas, and billfishes of the Atlantic and Gulf of Mexico. As discussed above, NMFS will explore mandatory workshops in a future rulemaking.

Comment 9:

While the United States is trying to protect sea turtles, fishermen in Florida watch fishermen just outside the U.S. EEZ in Cuba and the Bahamas kill them. I recently watched one vessel in the Bahamas kill 39 sea turtles.

Response:

Sea turtles are classified as endangered or threatened species in the United States and NMFS has implemented many measures to conserve these species. NMFS does not have the authority to determine how neighboring countries manage their resources, but will continue to pursue improvements in international sea turtle conservation measures.

Comment 10:

Amendment 1 does not adequately address the incidental capture of threatened and endangered sea turtles in shark fisheries, especially shark bottom longlines. Reducing the rate of bycatch and reducing the mortality of sea turtles needs to be a primary priority. The impact of shark fisheries on sea turtles appears to be purposefully masked by key omissions in Amendment 1 about the level of sea turtle take and associated past-hooking mortality. The June 2001 BiOp estimates that 207 to 517 loggerheads are caught in the shark bottom longline fishery annually. Many of these animals probably die after release. Significantly more observer coverage is needed to improve confidence intervals. Amendment 1 fails to estimate and discuss the implications of post-hooking mortality of sea turtles. The June 2001 BiOp provides estimates of post-hooking mortality on pelagic longlines. This mortality rate in bottom longlines is expected to be higher because the turtles are trapped on the bottom unable to breathe. Because effort in shark fisheries has increased since 2001, many hundreds of sea turtles are being killed annually in shark longline fisheries.

Response:

NMFS Protected Resources Division has prepared a new BiOp for this rulemaking that analyzes the incidental capture of protected resources in the shark fisheries. An estimated 222 loggerhead sea turtles were incidentally caught in the shark bottom longline fishery from 1994 through 2002. Based on observer data and the reported effort in the shark bottom longline fishery, it is estimated that 51 loggerhead turtles will be killed as a result of an interaction with a bottom longline. The highest estimate of post release mortality for sea turtles interacting with pelagic longlines is 42 percent for turtles ingesting hooks. Assuming all loggerhead turtles that ingest a hook are subject to this mortality rate, results in another 72 loggerhead turtles will be killed. This gives a total of 123 loggerhead turtles killed per year as a result of an interaction with a bottom longline. An estimate of 30 leatherback sea turtles were incidentally caught from 1994 through 2002 in the shark bottom longline fishery. Using the same methodology for leatherback sea turtle interactions results in an estimate of 17 leatherback turtles killed each year in this fishery. The leatherback mortality is very conservative because it is known that leatherback turtles rarely ingest or bite hooks, most are usually foul hooked on their flippers or carapaces, reducing the likelihood of post-hooking release mortality. However, leatherback-specific data for this fishery are not available and therefore the most conservative estimate was used. NMFS agrees that the precision of the estimates is likely to improve with greater observer coverage. One of the conditions of the BiOp is that NMFS must continue to implement an observer program at current or higher levels to monitor incidental takes of protected resources in Atlantic (including Gulf of Mexico) shark fisheries. NMFS disagrees that effort in shark fisheries has increased since 2001. Based on reported effort in the logbook data and the observer programs, the total number of hooks set in the shark bottom longline fishery in 2000-2002, ranged from 2.5 to 2.7 million hooks per year. This level of

effort is approximately 62 percent less than the reported effort in 1996. In addition, based on current and historical participation, implementation of limited access in the shark fisheries reduced the number of shark permit holders from over 2,200 before limited access to 584 in October of 2003.

Comment 11:

Only one alternative addresses sea turtle bycatch by recommending that fishing vessels move one nautical mile after an interaction with a sea turtle. Dip nets and line cutters should also be required.

Response:

To reduce sea turtle mortality, NMFS is implementing an alternative that will require vessels with shark bottom longline gear to use corrodible hooks, possess release equipment (line cutters, dip nets, and when approved, dehooking devices), as well as move one nautical mile after an interaction with a marine mammal or sea turtle.

Comment 12:

NMFS needs to conduct experiments to determine if circle hooks are effective in reducing the number of turtles caught and the position of the hooks in captured animals.

Response:

The June 14, 2001, BiOp included a recommendation that NMFS conduct a three-year experimental fishery in the northeast distant statistical reporting area (NED) to attempt to reduce the interactions between pelagic longline gear and sea turtles. In the summer and fall of 2002, tested the use of circle hooks, mackerel bait, and shortened daylight soak time to examine their usefulness in reducing the capture of sea turtles. Although NMFS did not specifically investigate the use of circle hooks to reduce interactions with sea turtles in the shark bottom longline fishery, information from the NED experiments could be transferable to or provide helpful information for other fisheries.

Comment 13:

We support the preferred alternatives of line cutters, dip nets, and dehooking devices and feel they would reduce mortality by recreational fishermen as well.

Response:

Release gear may be beneficial in recreational fisheries; however, requiring this equipment for anglers who generally do not use heavy monofilament line and rarely encounter protected species is not practical at this time. NMFS does support the voluntary use of release gear in recreational shark fisheries.

Comment 14:

NMFS should consider a variation of the no discard alternative (retention of all sharks with no discards allowed) in order to encourage reducing regulatory discards. This is possible but not practicable in today's marketplace and would be tough to enforce. Other portions of the regulations, such as no filleting at sea or the current trip limit, would need to be changed.

Response:

NMFS analyzed the no-discard alternative and determined that it could virtually eliminate the bycatch of sharks in the commercial shark fishery and reduce fishing effort needed to reach trip limits and fill quotas, thereby reducing potential interactions with prohibited species. However, this alternative could also increase the mortality of juvenile sharks, prohibited species, and other sharks not normally retained. Fishermen may also illegally high-grade and discard less marketable species to avoid reaching the trip limit, increasing waste. If no discards were allowed, trip limits and quotas could be reached more quickly, resulting in derby fishing conditions. Derby conditions may result in depressed ex-vessel prices, reduced revenues, market gluts, and concerns for the safety of fishermen at sea. Due to ecological, social, and economic concerns, NMFS does not believe this alternative is appropriate for the commercial shark fishery at this time. NMFS may consider a variation of this alternative in a future rulemaking.

Comment 15:

NMFS received several comments regarding bycatch of sharks and non-target species. The comments include: Amendment 1 does not contain a comprehensive strategy to avoid and reduce shark bycatch, as mandated by law. For years NMFS has highlighted the shrimp trawl and menhaden purse seine fisheries as problem fisheries for shark bycatch, yet NMFS has not offered any suggestion on how to address these bycatch sources. NMFS must take action to address these continual problems. The non-targeted species and sub-legal bycatch that are routinely discarded as a result of indiscriminate gillnets and longlines is disturbing and a waste of our marine resources.

Response:

Bycatch of sharks in trawl, set-net, and hook and line fisheries is discussed in Amendment 1. In this rule, NMFS specifically addresses shark bycatch in HMS fisheries by implementing several measures designed to reduce bycatch and bycatch mortality including: a time/area closure, VMS requirements for shark bottom longline and gillnet vessels, requiring the use of corrodible hooks, and requiring the possession of release equipment (line cutters, dipnets, and, when approved, dehooking devices). As described above, NMFS has also issued a bycatch implementation plan.

Comment 16:

NMFS needs to examine the bycatch of sharks in monk fishing gear.

Response:

NMFS will investigate the bycatch of sharks in a number of fisheries to determine if measures are needed to minimize shark bycatch and bycatch mortality.

B. Time/Area Closure

Comment 1:

NMFS received several comments regarding the use of time/area closures in general. These included: NMFS should establish sanctuaries for all fish species. The entire fishery should be closed from January through July to protect pupping females and pups. NMFS should implement seasonal closures to longlines and gillnets in coastal nursery grounds to protect all shark species.

Response:

The time/area closure is based on specific information from the shark bottom longline observer program that indicates a high proportion of prohibited dusky shark and juvenile sandbar sharks being caught off North Carolina from January through July. Closing the entire shark fishery from January through July is not warranted. The closure will afford some protection to all species that are caught on bottom longline gear during that time of year.

Comment 2:

One commenter noted that NMFS should implement the time/area closure alternative that would close all shark nursing and pupping grounds based on EFH for neonate and juvenile sharks, in order to protect juvenile sharks from indiscriminate commercial gears. Alternatively, another commenter noted that they cannot support the blanket alternative for closing all pupping and nursery grounds because each proposal needs to be fully evaluated and based on acceptable understanding of stock status, life histories, and defined EFH for each species.

Response:

NMFS considered an alternative that would close all pupping and nursery grounds,

i.e.

, nearly all coastal waters off the U.S. Atlantic coast and the Gulf of Mexico, but this final rule would implement a targeted time/area closure for a specific time period. Currently, there are insufficient data to support a closure of all EFH pupping and nursery areas. Moreover, a closure of all coastal waters would have had a severe economic impact on fishing communities.

Comment 3:

Any delay in implementation of closures may undermine management objectives.

Response:

Delayed effectiveness of time/area closures has been used in the past, and is a reasonable approach to allow fishermen to adjust to the regulations that affect fishing areas and to the potential economic changes incurred by a time/area closure.

Comment 4:

NMFS should consider time/area closures to protect adult dusky sharks as well as juveniles.

Response:

The time/area closure is based on information relating to all life stages of dusky sharks, including adults. The time/area closure is expected to reduce the catch of all dusky sharks by approximately 79 percent and adult dusky sharks by 65 percent.

Comment 5:

Any closure that is considered should be imposed on all commercial and recreational shark gear.

Response:

Recreational gears have the capability to release sharks alive, whereas many sharks, and dusky sharks in particular, have low survival rates when caught with commercial gear. This is due in part to the longer soak times required in the commercial fishery. Dusky sharks, for example, have an at-vessel mortality rate of 82 percent. If data in the future indicate adverse impacts from other gears, NMFS will consider closures for other gear types, including recreational.

Comment 6:

The Environmental Protection Agency (EPA) recommends marine protected areas (MPAs) for overfished stocks; marine protected areas for sharks that exhibit territorial behavior in breeding would likely benefit.

Response:

NMFS has selected an alternative that implements a targeted time/area closure to protect prohibited dusky sharks and juvenile sandbar sharks which are currently experiencing overfishing. This time/area closure is a type of MPA and is also an effective means to reduce fishing mortality and help rebuild stocks. Based on the best available scientific data, NMFS has taken steps to identify and protect EFH and Habitat Areas of Particular Concern (HAPCs) for both dusky and sandbar sharks. The time/area closure will prevent the catch of both pregnant females and neonates during the critical pupping stage.

Comment 7:

Any regulations imposing a closure should have a clear scientific exit strategy to reduce and/or eliminate the closure when scientifically justified.

Response:

NMFS agrees that closed areas should be re-opened when scientifically justified and will thus be reviewing the status of both dusky and sandbar sharks, the two species most affected by the time/area closure, in the near future. Based on the status of those stock assessments and other information regarding the effectiveness of the closure, NMFS may consider revising the size and scope of the closure, the duration of the closure, and potentially elimination of the closure.

Comment 8:

NMFS received several comments specific to the proposed time/area closure. These comments included: Closing nursery areas has always been seen as one of the most beneficial management measures possible for sharks and has been recommended by nearly every shark stock assessment group assembled; thus we support the proposed time/area closure and NMFS efforts to work with the two Fishery Management Councils to protect important state nursery waters. NMFS should close the proposed mid-Atlantic region to bottom longline fishing from January through July to protect nursery and pupping areas.

Response:

Time/area closures are an important tool in reducing mortality of prohibited species and juvenile life stages of sharks, and the current time/area closure will help to protect dusky sharks and rebuild sandbars sharks.

Comment 9:

NMFS should look at the fish being sold; this will show that the fishermen are not selling small sharks. NMFS should look at the average carcass weight, not length.

Response:

One of the principal reasons for the time/area closure was to protect prohibited dusky sharks, which are illegal to sell. Additionally, because dusky sharks do not mature until approximately 10 ft (3 m) fork length (FL), even large dusky sharks are considered juveniles. For years, the shark observer program and many other researchers have been collecting length data for sharks because many sharks are released without being landed and weights would be difficult if not impossible to collect. The length-to-weight relationship is used by scientists to determine the life stage and sexual maturity of most fish species, including sharks. Shark bottom longline observer data show high rates of neonate and juvenile sandbar sharks less than 137 cm FL being caught and landed in the winter fishery off of North Carolina. The 137 cm FL corresponds to the recreational minimum size limit for sharks which is 4.5 feet FL. It also corresponds to the female smallest size at maturity. For instance, one data series for the winter fishery off North Carolina in 2001 shows approximately 83 percent of 1,188 sandbar sharks observed caught were less than 137 cm FL, with an average length of approximately 120 cm FL. Sandbar shark pups are born from March to early August and measure about 60 cm FL at birth.

Comment 10:

The information used to support the time/area closure is flawed because shark observers are mis-identifying dusky sharks.

Response:

The commercial shark bottom longline fishery observers are trained to identify all species of sharks, including dusky sharks. NMFS acknowledges that some misidentification of sharks may occur, however, the preponderance of the data, including fishery independent data collected by researchers and trained biologists who participate in tagging efforts indicates that the area off North Carolina is a pupping and nursery area for dusky as well as sandbar sharks. NMFS did not rely solely on information from the shark observer program to make its determination for a time/area closure, but relies on many other data sources as well.

Comment 11:

Dusky shark catches before 1999 should not be considered because we could not land them then; since 1999, our catch of dusky sharks has decreased.

Response:

Since dusky sharks were prohibited in June 2000, the data from that point forward has been analyzed separately from earlier data in the final Amendment. However, it is also important to examine data prior to 2000 because it helps to establish the high rate of historical bycatch and the importance of the area as a pupping and nursery ground for both dusky and sandbar sharks. In analyzing the shorter time period, NMFS found that the number of dusky sharks being caught off North Carolina and elsewhere has declined since June 2000, but that a much higher percentage of dusky shark are observed caught in the time/area closure than in other areas, particularly when the relatively small size of the time/area closure is compared to all other open areas of the Atlantic and Gulf of Mexico.

Comment 12:

We do not support the time/area closure at this time because of the significant economic and social impacts that would result in the affected fishing communities and the fact that the document does not sufficiently analyze the closure or enforcement of the closure. If done properly, a time/area closure can benefit all concerned; however, the proposed time/area closure is not reasonable. The decision to close the area seems to be driving the science.

Response:

The original time/area closure proposed in the draft Amendment would have closed a large area (31,487 square nautical miles) and may have had severe economic and social impacts. Based on public comments, NMFS re-analyzed the data and proposed a revised time/area closure of 4,490 square nautical miles in part to mitigate social and economic impacts on fishing communities in

North Carolina. The revised time/area closure will still be effective at reducing dusky catch by 79 percent, and neonate and juvenile sandbar catch by 55 percent.

Comment 13:

It is not clear if other measures are sufficient to rebuild sandbar and dusky sharks without the addition of time/area closures.

Response:

Rebuilding of dusky and sandbar sharks is based on the combination of management measures including the reduction in quota, the time/area closure, gear restrictions that should reduce post-release mortality, and a minimum size on recreationally caught sharks. Without the time/area closure, NMFS would need to implement other reductions or restrictions in order to ensure that LCS are rebuilt within the necessary time frame.

Comment 14:

NMFS received a number of comments regarding the depth of the closures. Comments included: most nursery grounds are in nearshore areas; closing areas 20 fathoms in depth to the shore should be suitable to protect neonates and juveniles. NMFS does not need to close areas out to the 200 mile limit unless the desire is to fiercely impact these shark fishing entities. Regions outside of 20 fathoms should remain open. We question any justification for closing anything other than state waters during pupping seasons. We cannot support closures inside of 10, 20, or any other fathom mark at this time.

Response:

NMFS examined catches based on depth and found that both dusky sharks and juvenile sandbar sharks are caught at depths of up to 50 fathoms. Since large numbers of sharks appear to be caught in a line along the 50 fathom contour, a buffer of approximately two miles was included to extend the seaward boundary of the time/area closure to approximately 60 to 80 fathoms. The time/area closure is one of the few known areas where shark pupping and nursery grounds extend into Federal waters. It is also one of the only areas designated as a HAPC (for sandbar sharks) in Federal waters.

Comment 15:

NMFS received several comments regarding the proposed time/area closure and the burden being placed on North Carolina fishermen. Comments included: Juvenile sharks are caught all along the coast and North Carolina fishermen are being targeted unfairly. If closures are needed to rebuild sharks, then fishermen in all states need to share the task, not just North Carolina fishermen. The time/area closure is payback for previous lawsuits by the commercial industry.

Response:

Juvenile sharks are caught along much of the U.S. Atlantic and Gulf of Mexico coasts; however, the proportion of juvenile and neonate dusky and sandbar sharks being caught off North Carolina is substantially higher than in other areas. This is because the waters off North Carolina are pupping and nursery areas for these two species, and pregnant females, pups and juveniles aggregate in the area. EFH areas for both sandbar and dusky sharks, and HAPC areas for sandbar sharks have been designated off North Carolina. Data indicate that from 1994-2002, 1,099 or 79 percent of all dusky sharks were caught in the time/area closure from January through July. Of these, 1,016 or 92 percent were neonates or juveniles. Of the 12,445 sandbar sharks observed caught in the Atlantic from 1994-2002, 6,755 or 54 percent were caught in the time/area closure between January and July, of which 61 percent were juveniles and neonates. While there may be other nursery and pupping areas in coastal waters, this is one of the only areas where such a high proportion of neonate and juvenile sharks have been documented being caught in Federal waters.

Comment 16:

The proposed time/area closure is absurd; the period should be April 1 through June 30 or maybe July 15. NMFS should not close the area for the entire time from January through July because most fishermen do not see any pregnant females in the area after mid-July.

Response:

Data from the commercial shark observer program indicates that there are substantial numbers of juvenile and neonate sharks being caught in all months from January through July, not just from April through July. This is because in addition to being a primary pupping area from May to August, the area is also a secondary nursery and overwintering ground for young-of-the-year and juvenile sharks.

Comment 17:

The five vessels with a history of landing most of the juvenile sandbar sharks should be given some options on how to catch bigger sharks.

Response:

NMFS has not analyzed specific information regarding which vessels are catching small or large sharks, but has relied instead upon analysis of all data gathered in the time/area closure over various time periods to form the basis for the closure. Even if information were available to indicate that certain vessels were responsible for the majority of juvenile landings, options to remedy the problem would have to be made available to the entire fleet, not just selected vessels. Commercial shark fishery participants who fish in the area are encouraged to share information on fishing gears, methods, and locations that might reduce the catch of juvenile sharks. The intent of the closure is to reduce all interactions between commercial fishing operations and pupping and nursery grounds and hence reduce both the catch and mortality of dusky and juvenile sandbar sharks.

Comment 18:

Shrimp nets catch more small sharks than the directed shark fishery in North Carolina.

Response:

NMFS agrees that the shrimp fishery is responsible for large catches of SCS. The bycatch of SCS in the shrimp trawl fishery in the Gulf of Mexico has been documented and was taken into account during the latest 2002 SCS stock assessment which indicates that SCS are not overfished and overfishing is not occurring. While there may be benefits to the SCS stock as a result of the closure, the intent of the closure was to reduce the catch of juvenile sandbar sharks and prohibited dusky sharks.

Comment 19:

If an area is closed, landings should not be allowed in states adjacent to the area no matter where the fish are harvested.

Response:

NMFS does not agree that adjacent states should be closed as well, or that landings should not be allowed in adjacent states. The time/area closure is based on specific information about catches off North Carolina in a known pupping and nursery area. Although there are pupping and nursery areas in state waters, most notably Chesapeake Bay, Maryland, and Delaware Bay, Delaware, fishing effort there has historically been low. Additionally, most other areas adjacent to the closure off North Carolina are not known pupping and nursery areas and have a much higher proportion of adult sandbar sharks, and far fewer dusky sharks. NMFS is implementing VMS to aid in enforcement of the time/area closure. VMS will benefit fishermen by allowing them to traverse the closed area to offload.

Comment 20:

The time/area closure will push more vessels into other areas such as the Florida East Coast. This combined with the regional quotas and trimester seasons will mean that all the vessels will be working for one sixth of the normal January opening quota. There is only a small area off of Florida where you can shark fish. If more vessels go to that area, there will not be enough room to set gear.

Response:

The original time/area closure proposed in the draft Amendment would have closed all waters off North Carolina, and portions of Virginia and South Carolina to

commercial bottom longline fishing. Based on public comments that the catch of dusky sharks has declined in recent years, and that the time/area closure would have severe economic impacts on commercial fishing entities in those states, NMFS re-examined the data for the time/area closure, specifically by looking at a shorter time period of catches from 2001-2002. Based on an analysis of the data, NMFS revised the time/area closure to close the portion of the original time/area closure which had the highest catch rate of dusky and juvenile sandbar sharks. NMFS believes that the revised time/area closure will reduce the catch of dusky and juvenile sandbar sharks, while also mitigating the economic impact of the closure by allowing vessels to continue fishing in waters north and south of the time/area closure off North Carolina from January through July. This should prevent vessels from having to fish in Florida, and will allow the quota to be harvested over a larger area.

Comment 21:

NMFS received several comments regarding how the proposed boundaries were established. Comments included: NMFS needs to improve the transparency in how the time/area boundaries were established and include maps of all observed trips and research cruises, not just observed takes of sandbar and dusky sharks.

Response:

The final Amendment provides a more thorough explanation and justification for the boundaries established for the revised time/area closure. The seaward boundary of the revised area follows the 60 to 80 fathom contour, and was selected to include all observed catches of dusky sharks and sandbar sharks. No dusky or sandbar sharks were observed caught east of approximately 50 fathoms. Since large numbers of sharks appear to be caught in a line along the 50 fathom contour, a buffer of approximately two miles was included thus extending the boundary to 60 to 80 fathoms. The northern boundary was selected to include the HAPC for sandbar sharks off Cape Hatteras, and because areas north of Cape Hatteras have historically had low catches of both dusky and sandbar sharks. The southern boundary was selected based on low numbers of dusky sharks that have been observed caught there in recent years, and because the proportion of juvenile and neonate sandbar sharks is much lower there than in the time/area closure. In summary, the revised time/area closure will reduce the catch of dusky sharks by 79 percent versus 85 percent under the original proposal, and will reduce the catch of sandbar sharks by 51 percent versus 66 percent under the original proposal. Detailed maps of the revised time/area closure, all observed trips, and research cruises are provided in the final Amendment.

Comment 22:

Why is Virginia closed? The marginal benefit of extending the closed area into Virginia does not appear as great as it would be off of Cape Canaveral, Florida. There appears to be another area of high sandbar and dusky abundance off central Atlantic Florida; NMFS should have proposed a similar closed area in that region.

Response:

Based on public comments received, NMFS re-examined the data and concluded that the waters off Virginia did not warrant being closed at this time. The time/area closure boundary has been revised to include only waters south of the HAPC off Cape Hatteras. For the area near Cape Canaveral, Florida, NMFS found that the area accounted for only 8 percent of the observed dusky shark catch from 1994-2002, and less than 14 percent of sandbar sharks, of which a very high proportion were adults. Given the low percentage of catch of prohibited dusky sharks from this area, and the high proportion of adult sandbar sharks, NMFS did not feel it was appropriate to close the area at this time.

Comment 23:

NMFS must adopt the alternative that would establish a time/area closure for smalltooth sawfish critical habitat. The smalltooth sawfish is the first marine fish to be listed under ESA, and although critical habitat has not yet been designated, NMFS should act immediately.

Response:

NMFS does not have the basis for implementing a time/area closure for smalltooth sawfish at this time. Without information about smalltooth sawfish critical habitat, NMFS does not have sufficient information to identify an appropriate time/area closure. Once a recovery plan is developed and critical habitat identified, NMFS will reconsider a closure to protect smalltooth sawfish.

Comment 24:

The depths on the maps depicting the time/area closure are incorrect.

Response:

NMFS has provided updated maps showing the correct bathymetry in the final Amendment.

Comment 25:

NMFS needs to compare the number of dusky shark takes in the commercial and recreational fisheries. MRFSS data are not credible.

Response:

NMFS has provided estimates of the number of dusky sharks caught in the commercial and recreational fisheries in the final Amendment. The estimates show that the number of dusky sharks caught in the commercial fishery was considerably higher (18,867) than in the recreational fishery (5,570) in 1999, but that the recreational fishery may have caught more dusky sharks in 2000-2001 (8,100 vs. 6,063). MRFSS data are not the only data used in calculating recreational catch estimates. Other data are obtained from the NMFS Headboat Survey (HBOAT) and the Texas Parks and Wildlife Recreational Fishing Survey (TXPWD).

Comment 26:

The proposed time/area closure splits South Carolina. How will enforcement enforce the regulation?

Response:

The revised time area closure is located entirely off the coast of North Carolina and enforcement should no longer be an issue off South Carolina. Other time/area closures have been implemented that did not fully encompass a state's waters, and NMFS utilized VMS to ensure the effectiveness and enforcement of the closures. NMFS intends to implement VMS for the current time/area closure as well. VMS will have the added benefit of allowing vessels to transit the closed area.

5. Other Management Measures

A. Deepwater and Other Sharks

Comment 1:

NMFS received a range of comments regarding the alternatives for the deepwater and other species group. The comments include: Deepwater sharks should be protected. Because there is little practical effect of leaving or removing them from the management unit, deepwater and other sharks should be left in the management unit. Leaving the deepwater and other sharks in the management unit could decrease the time needed to act, if necessary. Deepwater and other sharks should remain in the management unit because if any fishery should develop, it could take years to create an FMP following section 305(a) of the Magnuson-Stevens Act in terms of gear evaluation and notification of entry. We support the preferred alternative. NMFS should continue to collect data on these species until such a time that they can be assessed or until a potential fishery develops. If needed, NMFS should move to put them back in the management unit to protect them.

Response:

Maintaining data collection only on the deepwater and other sharks is sufficient because there are not significant landings of the species in this group and no known fishermen target these species. If directed fisheries were to start, NMFS would evaluate data available at that time to see if an FMP amendment or other regulatory measures would be warranted.

Comment 2:

Fishing for deepwater and other sharks should be prohibited

because they are more likely to be overfished than coastal sharks.

Response:

At this time, there are no known fishermen targeting deepwater and other sharks. Prohibiting these species would be precautionary, but it may not significantly reduce mortality because these species are only caught rarely in non-HMS fisheries. Further, prohibiting landings of these species in HMS fisheries could reduce the availability of important data on them.

Comment 3:

To the extent that deepwater sharks are a target of fisheries in the Caribbean, the complex should be assessed and managed.

Response:

NMFS will assess this species group when more biological and fishery information becomes available.

Comment 4:

Deepwater and other sharks were added to the management unit not only to ban their finning, but also to preclude possession of species that may be vulnerable to overfishing and to help prevent development of directed fisheries or markets for uncommon or seriously depleted species.

Response:

The species added to the prohibited species group in the HMS FMP were added because they were known to be vulnerable to overfishing, uncommon, or seriously depleted. The deepwater and other group was included in the management unit only to prohibit finning of these species. No other regulations were placed on this group (

e.g.

, no permitting or reporting requirements). Presently, the only protection afforded under the HMS FMP, a ban on finning, is now afforded nationally under the Shark Finning Prohibition Act (February 11, 2002, 67 FR 6194). Given the national protection, maintaining data collection only on these species is sufficient at this time.

B. Prohibited Species

Comment 1:

Fishermen should be fined $10,000 for every prohibited species they capture.

Response:

Currently, the possession and landing of prohibited species is illegal. Penalties and fines vary with the severity of the infraction. At this time, NMFS does not believe a $10,000 fine for capturing a prohibited species would be appropriate under all circumstances.

Comment 2:

NMFS received a range of comments stating that dusky sharks should be removed from the prohibited species list in order to determine where and how many are caught. Alternatively, some commenters stated that NMFS should not remove dusky sharks because they have suffered a severe population decline and all measures to reduce mortality should be imposed.

Response:

Dusky shark catch rate data indicate large population declines since the early 1970s. Dusky sharks have a high bycatch mortality, approximately 80 percent, and are usually dead when gear is retrieved. Although commercial shark fishery observer data shows that dusky sharks comprise approximately one percent of total catch in recent years, removing dusky sharks from the prohibited species list could result in increased mortality of this overfished species by allowing the retention of individuals that may otherwise be released alive. NMFS determined that removing dusky sharks from the current prohibited species group would likely have significant ecological impacts.

Comment 3:

NMFS received several comments regarding the addition of the deepwater and other species to the prohibited species group. The comments include: Because they are slow growing and because new fisheries can spring up and deplete populations before action can be taken, deepwater and other sharks should be added to the prohibited species list. Removing deepwater and other sharks reduces the chances for conserving slow growing deepwater sharks. NMFS continues to assert the lack of a fishery for deepwater sharks and yet has failed to reconcile their previous finding in the National Plan of Action for Reducing Fishing Capacity that deepwater sharks are overcapitalized.

Response:

NMFS determined that adding the deepwater and other species to the prohibited species group would likely have only minor positive ecological impacts. Prohibiting these species takes a precautionary approach, but may not significantly reduce mortality because these species are only caught rarely in non-HMS fisheries. Further, prohibiting the landing of these species in HMS fisheries may limit the availability of data pertaining to them. If directed fisheries started, NMFS would evaluate data available at that time to see if an FMP amendment or other regulatory measures would be warranted. The draft National Plan of Action for Reducing Fishing Capacity stated that deepwater sharks are overcapitalized. NMFS believes the deepwater and other species were given this designation because the management group was included along with other shark management groups which are overcapitalized. The Highly Migratory Species Management Division has recommended that this finding for the deepwater and other species be amended because there are no known fishermen who target these species.

Comment 4:

We support adding finetooth sharks to the prohibited species list. Possession should be prohibited until effective management measures to stop overfishing are implemented.

Response:

NMFS analyzed an alternative that would add the finetooth sharks to the prohibited species group, but determined that this alternative would likely have limited positive ecological impacts as finetooth sharks are common bycatch in non-HMS fisheries and prohibiting them in HMS fisheries will not prevent their capture. Additionally, finetooth sharks are not overfished and are commonly caught in HMS fisheries. As such, finetooth sharks do not appear to meet the criteria established in the selected alternative. As described in Amendment 1, NMFS will take a long-term approach of identifying where finetooth sharks are caught and work with the appropriate Fishery Management Council to reduce fishing effort, as appropriate.

Comment 5:

NMFS received several comments regarding the preferred alternative for prohibited species. The comments include: We support the proposed alternative for prohibited species. We support the proposed alternative but recommend removing the criterion of rarity in LCS catch. If a species is commonly caught in the LCS fishery, but is depleted and warrants protection according to the biological criteria, then the species should be prohibited. We support the proposed mechanism but note that the criteria and procedures in the draft Amendment 1 require further investigation and clarification regarding appropriateness before finalization. We support the proposed mechanism but suggest that the criterion for adding and removing species be separated because the action may be contrary.

Response:

NMFS believes the mechanism for adding and removing species to and from the prohibited species list and the associated criteria are appropriate for addressing the biological needs of individual shark species. In regard to concern over the second criterion, a species may be rarely caught in HMS fisheries but stock assessments show few signs of depletion (

e.g,

HMS gear types are not efficient at catching the shark species or the species is caught in areas not fished by HMS fishermen). Before any species is added or removed from the list, NMFS would issue a proposed and final rule that fully describes how and if the species meets the criteria. If adjustments to the criteria are found to be needed in the future, NMFS can modify the criteria in a future rulemaking.

Comment 6:

NMFS should return to the original five prohibited species. All

LCS should be assessed. If they remain on the prohibited species list, NMFS will not have the data they need to assess them. Similarly, we support the proposed mechanism but NMFS should also remove any species that are logically not likely to be overfished (

e.g.

, rarely caught species).

Response:

The 1997 prohibition on the possession of whale, basking, sand tiger, bigeye sand tiger, and white sharks within Federal waters was a precautionary measure developed to ensure that directed fisheries did not develop for these species. These five species were identified as highly susceptible to over exploitation. In 1999, the HMS FMP prohibited the retention of the remainder of the prohibited species because they were known to be vulnerable to overfishing, uncommon, or seriously depleted. Although the preferred alternative includes a mechanism and lays out criteria for the inclusion and removal of species from the prohibited species group, NMFS does not believe any changes to this group are warranted at this time. Each species will be considered on a case by case basis in future rulemakings. In the 2002 LCS stock assessment, there was sufficient information to assess the LCS complex as a whole, and sandbar and blacktip sharks individually. NMFS will assess individual species as more biological and fishery information become available.

Comment 7:

If the proposed mechanism is finalized, what type of request would we be required for NMFS to start rulemaking to remove species?

Response:

NMFS would require a petition for rulemaking to alter the prohibited species list. A petition for rulemaking should contain sufficient information for NMFS to consider the substance of the petition. For a petition regarding changes to the prohibited species list, the petition should, at a minimum: (1) Indicate what species are requested to be added to or removed from the list; (2) identify how the criteria warrant the addition or removal of the species; (3) provide data and other information relevant to those identified criteria; (4) state if additional research may be necessary to develop the requested change; (5) explain the interest of the petitioner or other stakeholders regarding the requested change; and (6) explain the importance of the action requested to promoting established NMFS' priorities and policies.

Comment 8:

If the proposed mechanism is finalized, will NMFS conduct an annual assessment regarding which species will be placed on the prohibited species list?

Response:

NMFS will assess individual species as additional data becomes available and not necessarily on an annual basis.

C. EFPs

Comment 1:

We support the preferred alternative as long as NMFS maintains some accountability on how the sharks are used, particularly the prohibited species. Any demographic information for age, growth, and offspring that evolves from aquarium use should be provided to NMFS annually for use as a comparative database for life history analyses versus wild stocks.

Response:

NMFS maintains an EFP database which accounts for each highly migratory species requested, authorized, taken/collected, and/or tagged under an approved EFP. As for data reporting, each permitted individual is required to submit interim reports throughout the calendar as well as submit an annual report documenting the amount, composition, and disposition of the catch as well as information pertaining to fishing activities. Additionally, NMFS has finalized a rule that amends HMS reporting requirements under EFPs (68 FR 63738, November 10, 2003). Additional issues regarding EFPs and Display permits may be addressed in a future rulemaking.

Comment 2:

We support a separate display permitting system, apart from research or EFPs. NMFS should overhaul the EFP system and establish separate classifications of permits for each specific use (

e.g.

, public display, research, and other exempted activities).

Response:

NMFS agrees and is establishing display permits in this rule. Other purpose classifications of exempted fishing permits may be addressed in future rulemakings.

Comment 3:

NMFS received several comments regarding the issuance of permits. Comments included: NMFS should not issue any more permits for scientific research. Background checks should be made of all permit holders; anyone with previous violations of any kind should be denied a permit. Requests for EFPs and SRPs need to be fully evaluated, taking into consideration past performance and other background, particularly for species that are already critically overfished.

Response:

Valuable information is gathered from activities under scientific research permits (SRPs) that would otherwise be prohibited. For example, SRPs have facilitated the collection of life history, migration, and age and growth information from prohibited shark species. As noted above, NMFS recently amended the reporting regulations for EFPs and SRPs and will be investigating additional improvements in the permitting processes.

Comment 4:

Fishermen catching sharks for display purposes should be required to have a purchase order from an aquarium in hand before going out. Annual follow-up investigations to the aquarium should be made to ensure that the shark is cared for properly. If someone is caught without a purchase order, the fine should be $10,000 per shark.

Response:

NMFS will be investigating these issues further in a future rulemaking.

Comment 5:

Several changes are needed to the EFP process including incorporating more public comment into the EFP allocation process and letting the public know what the final decision is and what the environmental impacts are of its decision.

Response:

NMFS will be investigating alternatives to improve the process in a future rulemaking and notes that information on the types of and number of permits issued are presented in the annual Stock Assessment and Fishery Evaluation (SAFE) reports.

Comment 6:

Efforts should continue with the Atlantic States Marine Fisheries Commission (ASMFC) regarding coordination between state and federal permits. There often appears to be too many permits and too little oversight.

Response:

NMFS supports continuing dialogues with the ASMFC regarding coordination between state and federal permits and has been working on improving its own database and collection methods, in part, to improve communication between NMFS and state agencies.

Comment 7:

While criteria for each EFP may vary, there should be uniform standards of performance, reporting, and accountability that are equally applicable to fishermen, aquariums, researchers, and educational institutions. Implementation of measures to ascertain the educational need justifying the harvest of these animals and improving reporting should be investigated.

Response:

NMFS will be investigating these issues further in a future rulemaking.

6. Essential Fish Habitat Update

Comment 1:

EPA recommends including a discussion on whether shark EFH is being affected by other fishery practices. For example, if shark EFH is protected by limiting clamming or

trawling in coastal bays, then the fishery may support higher quotas.

Response:

Because sharks use both estuarine and coastal inshore habitats, their EFH may be negatively impacted by fisheries that target species other than sharks. These fisheries may be either state or Federally managed. In particular, shark pupping and nursery habitats may be subjected to fishing impacts from gears of other fisheries,

e.g.

, shrimp trawling, but the degree of overlap between the various trawl fisheries and shark EFH, the extent to which habitat is altered by these gears, and the resulting impact on EFH are currently not known. Further research would be required to determine habitat-related production rates for sharks (the highest, most refined level of information available with which to identify EFH, and which is currently not available for sharks) and the potential impact of other fisheries on these production rates. Even if clamming or trawling were limited in some way to reduce impacts on shark EFH, the decision to raise quotas would only be made after appropriate stock assessments were conducted to determine whether the status of the stock had improved as a result of the conservation and enhancement actions.

Comment 2:

NMFS should identify EFH based on the entire geographic range of the species.

Response:

The EFH final rule recommends distinguishing EFH from all habitats potentially used by a species (50 CFR 600.815(a)(1)(iv)(A)). NMFS considered identifying EFH based on the entire geographic range of the species, but because specific information from scientists, observers, and tagging programs was available, decided to identify EFH more precisely based on observed distributions and knowledge about habitat requirements of individual species. The final action identifies EFH based on an initial analysis of 100 percent of the observed distribution, which may then either be expanded or reduced based on the status of the stock. If new information is not available, the existing EFH identifications would be maintained. The basis for this alternative is to provide flexibility to increase or decrease the extent of EFH based on the status of the stock. Since overfished resources are considered to be at greater risk, the percentage of habitat identified as EFH for overfished species would be greater than that of fully fished or not overfished species. Identifying the entire range could potentially have resulted in inclusion of the entire EEZ for certain species, which would include more than the range of areas necessary for spawning, feeding, breeding and growth to maturity as defined in the EFH regulations. Areas currently identified as EFH in Amendment 1 are based upon the best available science and represent the most accurate identification of EFH.

Comment 3:

We support the use of the preferred alternatives to identify EFH as specifically as possible and the use of data to increase or decrease the identifications for each species.

Response:

The final action provides an objective way of identifying EFH, and allows for the expansion or contraction of EFH based on the status of a particular species or life stage. For example, for overfished species, 90 percent of the range of distribution could hypothetically be identified as EFH, and for a species that is not overfished, 75 percent of the range of distribution might be identified as EFH.

Comment 4:

Sandbar shark EFH should include areas in the northern Gulf of Mexico.

Response:

Current sandbar shark EFH for all life stages includes areas in the northeastern Gulf of Mexico from Key West, Florida, as far west as Cape San Blas, Florida, on the Florida Gulf coast at 80° 15′ North, including Apalachicola Bay, Florida. NMFS did not have sufficient information to include areas farther west at this time.

Comment 5:

NMFS should work with Mexico and Cuba to include their waters as EFH. Twenty percent of all dusky shark tags are returned from Mexico after having been tagged in the mid-Atlantic region. Expanding EFH would help present all information possible about EFH throughout the immediate range.

Response:

Habitats that satisfy the criteria in the Magnuson-Stevens Act and the EFH regulations have been identified and described as EFH; some additional habitats may lie outside the U.S. EEZ, and therefore cannot be identified as EFH under the Magnuson-Stevens Act. Instead, these areas may be highlighted as particularly important habitats and actions that may adversely affect the habitat may be addressed through international agreements as recommended in the EFH regulations (50 CFR 600.805(b)(2)). The U.S. has engaged in discussions with Mexico regarding fisheries issues in the past, and met again October 22-24, 2003, for U.S. Mexico Bilateral Consultations in Mazatlan, Mexico. Currently the U.S. does not have diplomatic relations with Cuba, and working cooperatively to determine shark habitat in Cuban waters would be difficult.

Comment 6:

The Amendment discusses changes to EFH based on human impacts but does not discuss natural impacts such as red tide or rising temperatures.

Response:

Both red tide and rising temperatures may influence EFH. Red tides may have a short term impact by altering distribution of organisms, and temperature rise may have a long term influence by changing the distribution and abundance of predators and prey, benthic and water column habitat characteristics, and a host of other related issues. Red tides and rising temperatures have been linked to human activities, and as such, the final Amendment includes conservation measures that could reduce the runoff of coastal pollution which may influence or exacerbate red tides, and discusses many other influencing factors that are land-based and may have an impact on coastal waters and EFH.

7. The Stock Assessments and the Status of the Sharks

Comment 1:

NMFS received a range of comments regarding the current abundance of sharks. One commenter noted that a research scientist told him that there are plenty of sharks and that the scientist has seen more in his research this year than in other years. Another commenter noted that he no longer sees as many large coastal sharks as he used to and that shark harvesting should be stopped.

Response:

Because of a number of factors including, but not limited to, environmental changes, the gear used, the random sampling scheme used, and past experience of the fisherman, the number of sharks seen by one person or in one year of a time series compared to other years or other people can vary. The models used in the 2002 large and small coastal shark stock assessments take this variation into account when examining the data provided by fishermen and scientists and are considered to be the best available science and an appropriate basis for management action.

Comment 2:

How could blacktip sharks be overfished in 1998 and now be rebuilt?

Response:

As a result of a settlement agreement with commercial fishermen, NMFS had the 1998 LCS stock assessment peer reviewed. Those reviews found that the scientific conclusions and recommendations in the 1998 stock assessment were not based on scientifically reasonable uses of appropriate stock assessment techniques. As a result of these peer reviews, NMFS went back to the 1998 stock assessment and conducted a number of sensitivity analyses on the data and the models used at that time.

These analyses found that the data and models used for blacktip sharks were particularly sensitive to a number of factors and that changing some of the factors could lead to results that indicated the stock was either rebuilt or was well below sustainable levels. The sensitivity of the results (to computational issues) was largely attributed to the CPUE series within the analyses, which showed contradictory trends. As a result of these sensitivity analyses, before the actual 2002 stock assessment was conducted, scientists and other stakeholders examined each time series and model available and determined which ones were the most appropriate for use. Given these decisions on data inputs and modeling approaches, the condition of blacktip sharks was determined to be rebuilt. The peer review of the 2002 LCS stock assessment found that the models and data used were appropriate.

Comment 3:

Given the short period of shark management and the long time required for sandbars to attain maturity, the assertion that sandbar sharks are restored is something of a scientific miracle. Sandbar sharks used to be so common in the mid-Atlantic that they could be counted upon to save almost every summer shark trip. After a few years of intense commercial shark fishing, that species was practically wiped out. We still do not see them.

Response:

The latest LCS stock assessment constitutes the best scientific information available. It was conducted by some of the most respected shark and stock assessment scientists in the United States and, as is attested by the results of the peer review, used state-of-the-art models. Additionally, the data and models used in the stock assessment were examined and debated by scientists, environmentalists, and fishermen in a stock evaluation workshop before the stock assessment itself. The assessment found that sandbar sharks are no longer overfished but are experiencing overfishing. It is important to note that a change in status from overfished to rebuilt does not mean that the population is restored to levels of an unexploited or lightly exploited population. In general, a fish population that is capable of producing MSY on a continuous level (

i.e.

, a population that is not overfished) is roughly half that of an unexploited population. Thus, NMFS would not expect sandbar shark catch rates to return to the catch rates that occurred at the start-up phases of either the recreational or commercial fisheries.

Comment 4:

How can a species have overfishing occurring but not be overfished?

Response:

Overfishing relates to the rate of fishing mortality and indicates that the standing stock is being reduced because removals exceed the capacity of the stock to replace itself. Fishing pressure or fishing mortality needs to be reduced on a species that is experiencing overfishing or the species will become overfished. A species is overfishe

This text is long and has been trimmed here. Open the source document for the complete record.