Atlantic Highly Migratory Species (HMS); Atlantic Shark Management Measures; Republication

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Parts 600 and 635

Atlantic Highly Migratory Species (HMS); Atlantic Shark Management

Measures; Final Rule; Republication

Federal Register / Vol. 73, No. 136 / Tuesday, July 15, 2008 / Rules

and Regulations

[[Page 40658]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 0612242866-8619-02]

RIN 0648-AU89

Atlantic Highly Migratory Species (HMS); Atlantic Shark

Management Measures; Republication

Editorial Note: Federal Register rule document E8-13961,

originally published at pages 35778 to 35833 in the issue of

Tuesday, June 24, 2008, included several pages of duplicated text

and deleted material. This document is being republished in its

entirety.

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; fishing season notification.

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SUMMARY: This final rule implements the management measures described

in Final Amendment 2 to the Atlantic HMS Fishery Management Plan (FMP).

These management measures are designed to rebuild overfished species

and prevent overfishing of Atlantic sharks. These measures include, but

are not limited to, reductions in the commercial quotas, adjustments to

commercial retention limits, establishment of a shark research fishery,

a requirement for commercial vessels to maintain all fins on the shark

carcasses through offloading, the establishment of two regional quotas

for non-sandbar large coastal sharks (LCS), the establishment of one

annual season for commercial shark fishing instead of trimesters,

changes in reporting requirements for dealers (including swordfish and

tuna dealers), the establishment of additional time/area closures for

bottom longline (BLL) fisheries, and changes to the authorized species

for recreational fisheries. This rule also establishes the 2008

commercial quota for all Atlantic shark species groups. These changes

affect all commercial and recreational shark fishermen and shark

dealers on the Atlantic Coast.

DATES: This rule is effective on July 24, 2008.

ADDRESSES: For copies of Final Amendment 2 to the Highly Migratory

Species Fishery Management Plan, the Small Entity Compliance Guide, or

other related documents, please write to the Highly Migratory Species

Management Division, 1315 East-West Highway, Silver Spring, MD 20910,

or call at (301) 713-2347 or fax to (301)713-1917. Copies are also

available on the HMS website at http://www.nmfs.noaa.gov/sfa/hms/.

Written comments regarding the burden-hour estimates or other

aspects of the collection-of-information requirements contained in this

final rule may be submitted to the Highly Migratory Species Management

Division at (301) 713-2347 or by fax to (301) 713-1917 and by e-mail to

[email protected] or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Michael Clark, Karyl Brewster-Geisz,

or LeAnn Southward Hogan at 301-713-2347 or by fax at 301-713-1917; or

Jackie Wilson at 240-338-3936.

SUPPLEMENTARY INFORMATION:

Background

The Atlantic shark fisheries are managed under the authority of the

Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-

Stevens Act). The Consolidated HMS FMP is implemented by regulations at

50 CFR part 635.

NMFS announced its intent to prepare an environmental impact

statement (EIS) on November 7, 2006 (71 FR 65086), and held seven

scoping meetings in January 2007 (72 FR 123, January 3, 2007). As

described in the notice of intent, based on the results of the 2005

Canadian porbeagle shark stock assessment, the 2006 dusky shark stock

assessment, and the 2005/2006 LCS stock assessment, NMFS declared the

current status of the LCS complex as unknown, sandbar sharks as

overfished with overfishing occurring, the Gulf of Mexico blacktip

shark population as not overfished with overfishing not occurring, the

Atlantic blacktip shark population as unknown, the dusky shark as

overfished with overfishing occurring, and porbeagle sharks as

overfished with overfishing not occurring. Where there are overfished/

overfishing determinations, under the Magnuson-Stevens Act, NMFS is

required to develop management measures to rebuild overfished shark

stocks and prevent overfishing.

In March 2007, NMFS presented a predraft of the Amendment 2 to the

HMS Advisory Panel (72 FR 7860, February 21, 2007). Based in part on

the comments received during scoping and from the HMS Advisory Panel,

on July 27, 2007, NMFS developed further and then released the draft

Amendment 2 to the Consolidated HMS FMP and the associated proposed

rule (72 FR 41325; 72 FR 41392). The public comment period was

originally scheduled to end on October 10, 2007; however, it was

subsequently extended (72 FR 56330, October 3, 2007) and reopened until

December 17, 2007 (72 FR 64186, November 15, 2007), to provide the

Regional Fishery Management Councils, the Interstate Marine Fisheries

Commissions, and the public additional opportunity to submit comments.

In addition to the written comments submitted, the public verbally

commented on the proposed rule at five Regional Fishery Management

Council meetings (New England, Mid-Atlantic, South Atlantic, Gulf of

Mexico, and Caribbean), an Atlantic States Marine Fisheries Commission

meeting, ten public hearings, and one HMS Advisory Panel meeting. The

summary of the comments received and NMFS' responses are provided

below. Based on these public comments, NMFS re-evaluated the preferred

alternatives identified in the draft Amendment 2, made changes as

outlined in Final Amendment 2, and now releases its final rule as

modified after considering public comment.

Consistent with the Consolidated HMS FMP objectives, the Magnuson-

Stevens Act, and other applicable law, the objectives for this final

rule are to: (1) implement rebuilding plans for sandbar, dusky, and

porbeagle sharks; (2) provide an opportunity for the sustainable

harvest of blacktip and other sharks, as appropriate; (3) prevent

overfishing of Atlantic sharks; (4) analyze BLL time/area closures and

take necessary action to maintain or modify the closures, as

appropriate; and (5) improve, to the extent practicable, data

collections or data collection programs.

The rebuilding plans in Final Amendment 2 to the Consolidated HMS

FMP considers the recommendations in the stock assessments to be the

best available scientific information on the status of the species and

therefore, reflects those recommendations. This includes NMFS

establishing rebuilding time periods that are as short as possible,

taking into account the status and biology of the stocks and needs of

the fishing communities according to National Standard (NS) 1

guidelines.

The 2005/2006 stock assessment for the sandbar shark assumed that

sandbar shark fishing mortality from 2005 to 2007 would be maintained

at levels similar to 2004 (the last year of data used in the stock

assessment was from 2004) and that there would be a constant total

allowable catch (TAC) between 2008 and 2070. Using these assumptions,

the projections indicated that sandbar sharks would have a 70-percent

probability of rebuilding by 2070 with a TAC of 220 mt whole

[[Page 40659]]

weight (ww) (158 mt dressed weight (dw))/year and a 50-percent

probability of rebuilding by 2070 with a TAC of 240 mt ww (172 mt dw)/

year. As described in Amendment 2, NMFS used the 70-percent probability

of rebuilding to ensure that the intended results of a management

action are actually realized given the life history traits of sandbar

sharks.

Under the rebuilding plan, sandbar sharks are separated from the

LCS complex, and the base commercial sandbar shark quota is established

at 116.6 mt dw/year, which results in a total sandbar shark TAC of

158.3 mt dw (220 mt ww) once other sources of sandbar sharks mortality

are included. For the first five years of this rebuilding plan (through

2012), to account for 2007 overharvests, the base commercial quota is

reduced to 87.9 mt dw. The adjusted base quota through 2012 includes

the amount of quota that would have been available in the 1\st\ season

of 2008 had NMFS not closed the fishery during that time. In the final

rule for the 1\st\ season of 2008, NMFS calculated that 78 mt dw

(171,959 lb dw) would have been available (November 29, 2007, 72 FR

67580). However, based on updates to the reported landings, NMFS

adjusted the 78 mt dw estimate down to 66.2 mt dw (145,944 lb dw). The

actual commercial quota available in any particular year may fluctuate

based on overharvests and will be published via appropriate rulemaking

in the Federal Register.

Projections in the dusky shark stock assessment indicated that with

the age-structured production model (i.e., baseline scenario), dusky

sharks could be rebuilt with a 70-percent probability by the year 2400.

Other projections from the three other modeling approaches indicate

that rebuilding of dusky sharks will take between 100-400 years. As

such, in this final rule, NMFS assumes that the rebuilding timeframe

that would be as short as possible for dusky sharks would be at least

100 years. The harvest of dusky sharks has been prohibited since 2000.

Despite this fact, dusky sharks are still overfished with overfishing

occurring. NMFS believes this is at least partly due to the fact that

they are caught as bycatch, predominantly in longline fisheries. Many

of the final actions in this rule, such as establishing a shark

research fishery with 100 percent observer coverage and decreasing the

retention limits of non-sandbar large coastal sharks on all fishing

vessels, should reduce dusky shark bycatch. This reduction in bycatch

should aid in rebuilding and in collecting additional information to

evaluate dusky shark status and catches. In the research fishery, if

dusky shark catch is high by a particular vessel or in a particular

region, NMFS could stop that vessel's trip(s) or stop all research

trips in that region and/or time. Additionally, if NMFS decides, after

reviewing the data from a particular year, NMFS decides that the catch

was too high in the research fishery, NMFS could adjust the research

protocols and reduce effort or modify gear requirements, as needed. For

the non-research fishery trips, NMFS could either reduce the retention

limit in an attempt to reduce effort or work with the appropriate

Regional Fishery Management Council to reduce bycatch mortality in

certain fisheries, or consider other measures, as appropriate.

A stock assessment was conducted for North Atlantic porbeagle

sharks in 2005 by the Canadian Department of Fisheries and Oceans. This

assessment was reviewed by NMFS scientists who determined it used

appropriate methodologies and all available fishery and biological data

including U.S. landings and research. As a result of this review, NMFS

determined that the assessment constituted the best available science.

NMFS also determined that because the stock assessed is a unit stock

that extends into U.S. waters, the assessment and its recommendations

were appropriate for use in U.S. domestic management. The assessment

recommended that there is a 70-percent probability of rebuilding in 100

years if fishing mortality levels are maintained at or below 0.04

(current fishing mortality level). Considering this science, NMFS

believes that the rebuilding timeframe that is as short as possible is

100 years, which will allow a TAC of 11.3 mt dw based on current

commercial landings of 1.7 mt dw, current commercial discards of 9.5 mt

dw, and current recreational landings of 0.1 mt dw. This results in a

commercial porbeagle shark quota of 1.7 mt dw.

This final rule does not contain detailed information regarding the

management history of Atlantic sharks or the alternatives considered.

Those issues are discussed in the preamble of the proposed rule.

Additional information can also be found in the Final Amendment 2 to

the Consolidated HMS FMP available from NMFS (see ADDRESSES). This

final rule contains responses to comments received during the public

comment period and a description of changes to the rule between

proposed and final. The description of the changes to the proposed rule

can be found after the response to comment section.

Response to Comments

A large number of individuals and groups provided both written and

verbal comments on the proposed rule during the 143-day comment period,

10 public hearings, 5 Regional Fishery Management Council meetings, one

Interstate Marine Fisheries Commission meeting, and one HMS Advisory

Panel meeting. These comments resulted in numerous changes. The

comments are summarized below together with NMFS' responses. All of the

comments are grouped together by major issue. There are 16 major

issues: Quotas/Species Complexes; Porbeagle Sharks as Prohibited;

Retention Limits; Fins on Requirement; Time Area Closures; Reporting;

Seasons; Regions; Recreational Measures; Stock Assessment and Fishery

Evaluation (SAFE) Report and Stock Assessment Frequency; Research

Fishery/Preferred Alternative; Comments on Other Alternative Suites and

Management Measures; Science; National Standards; Economic Impacts; and

Miscellaneous. The comments are numbered consecutively, starting with

1, at the beginning of each issue.

1. Quotas/Species Complexes

a. Quotas

Comment 1: The National Marine Fisheries Service (NMFS) should

consider reducing the fishing mortality for overfished sandbar sharks.

Response: NMFS is taking steps to reduce fishing mortality for

overfished sandbar sharks. In particular, NMFS is reducing the base

commercial quota for sandbar sharks to 116.6 mt dw. This amount is

further reduced to 87.9 mt dw from 2008 through 2012 to account for

2007 overharvests. This is more than an 80-percent reduction in sandbar

shark landings compared to the status quo (594.4 mt dw). This base

commercial quota of 116.6 mt dw (which is then adjusted for

overharvest) combined with estimated discards both within and outside

the commercial shark fishery (e.g., including other commercial

fisheries and recreational fisheries) is anticipated to keep sandbar

mortality below the recommended total allowable catch (TAC) of 158.3 mt

dw, which gives this stock a 70-percent probability of rebuilding by

2070, as described in Chapter one of Amendment 2 to the Consolidated

HMS FMP.

Comment 2: NMFS should have considered Individual Transferable

Quotas (ITQs) for the shark fishery in this rulemaking. The quota is

just too small for the number of participants. Individual Fishing

Quotas (IFQs) or ITQs would accomplish the same

[[Page 40660]]

objectives as the research fishery. ITQs/IFQs are the fairest,

simplest, most rational method for this dilemma. NMFS should switch to

an ITQ system with no trip limit, because a lot of times fishermen do

not weigh the sharks. Rather, fishermen know their legal trip limit

based on how they fill their fish boxes. An ITQ system with no trip

limit would result in fewer dead discards.

Response: ITQs may be beneficial in many fisheries, and NMFS may

consider developing an IFQ or Limited Access Privilege Programs (LAPPs)

for sharks as well as other HMS in the future. NMFS did not consider

ITQs to be a reasonable alternative for this rulemaking given the

strict 1-year timeline to which NMFS must adhere in setting up a system

for rebuilding a fishery under the Magnuson-Stevens Act. Furthermore,

overfishing of sharks would have continued during an extensive ITQ

development phase, which would have been inconsistent with NMFS'

mandate in section 304(e) of the Magnuson-Stevens Act to rebuild

overfished stocks. The Magnuson-Stevens Act states that for stocks

identified as overfished or having overfishing occurring, the Secretary

of Commerce or the relevant Council, as appropriate, shall prepare a

fishery management plan, plan amendment, or proposed regulations for

the fishery to end overfishing in the fishery and rebuild affected

stocks within one year of that determination. NMFS satisfied that

timing provision: sandbar sharks and dusky sharks were determined to be

overfished with overfishing occurring on November 7, 2006 (71 FR

65086), and NMFS published Draft Amendment 2 to the Consolidated HMS

FMP on July 27, 2007 (72 FR 41325). NMFS notes that the 2006 Magnuson-

Stevens Fishery Conservation and Management Reauthorization Act amended

section 304(e) to include a two-year timing provision for preparation

and implementation of actions, and the new provision will be effective

July 12, 2009.

Given section 304 and other timing considerations for this action,

NMFS did not consider an ITQ system as a reasonable alternative, as it

takes several years to properly design an ITQ system that appropriately

considers the views of all stakeholders and then to implement such a

system. The general requirements for ITQs or LAPPs were included in the

2007 reauthorized Magnuson-Stevens Act (section 303A). Overall, two

basic things must be done when implementing a LAPP system: 1) determine

who would receive and who can hold the harvest privileges; and 2)

define the nature of the harvest privileges. In addition, NMFS is

currently establishing referenda requirements for LAPPs (for instance,

a particular allocation scheme must be approved by a given level of the

industry). In addition, unlike the research fishery, which would allow

an individual fisherman to target sharks on a yearly basis, allocation

under an ITQ, IFQ, or LAPP would be for a much longer time period.

Because fishermen would have these allocations for a long time, NMFS

traditionally works extensively with all stakeholders to devise the

best allocation scheme possible for these type of permit programs

through workshops and other meetings.

Comment 3: NMFS should reconsider how it calculated the non-sandbar

Large Coastal Shark (LCS) quota. The non-sandbar LCS quota is low

because fishermen were not targeting non-sandbar LCS in the past. They

were targeting sandbar sharks. If fishermen had been targeting non-

sandbar LCS, historical landings would be much higher, and there would

be a larger non-sandbar LCS quota than is currently proposed.

Response: NMFS is implementing a larger non-sandbar LCS base quota

of 627.8 mt dw outside the shark research fishery based on dealer

reports rather than logbooks, as originally proposed. By using dealer

reports, NMFS included in its calculations landings outside of NMFS'

jurisdiction (e.g., state landings) and thus maintained consistency in

establishing the quota with data used in the stock assessments.

In using historical landings reported by shark dealers to calculate

the non-sandbar LCS quota, NMFS follows the recommendations of the

stock assessments for Gulf of Mexico and Atlantic blacktip shark

populations. These stock assessments recommended keeping catch levels

the same in the Atlantic region and not increasing catch levels in the

Gulf of Mexico region. Basing quotas on dealer reports would cap

fishing effort at historical levels and keep stocks in the Gulf of

Mexico healthy and stocks in the Atlantic from declining. Setting

quotas higher than these levels could have detrimental effects on shark

stocks.

Comment 4: NMFS should consider allocating the entire sandbar quota

to fishermen participating in the research fishery because giving a few

sandbar sharks to those outside of the research fishery would not be

worth it. NMFS should also consider only allowing fishermen with

directed shark permits to participate in the shark fishery.

Response: NMFS considered the option discussed in the comment.

Under the final action, NMFS is allocating the entire 87.9 mt dw

adjusted sandbar quota to the shark research fishery. NMFS will publish

a Federal Register notice each year, inviting applications from permit

holders who are willing to participate in the shark research fishery.

Within that notice, NMFS will publish the selection criteria that NMFS

would use to select participants for the research fishery. For example,

depending on the research objectives for a given year, NMFS may

consider applications from a variety of permit holders, including

directed, incidental, and charter/headboat (CHB) permit holders, for

participation in the shark research fishery.

Comment 5: NMFS should acknowledge that the proposed reduction in

quotas is the end of the directed shark fishery. NMFS should ensure

that sharks are not discarded and accommodate incidental landings

whenever possible.

Response: The final actions will likely end the directed shark

fishery for certain species. With the reductions in the sandbar quota,

the reduction in retention limits, and the prohibition on retaining

sandbar sharks outside the research fishery, fishermen with directed

shark permits will likely no longer target LCS outside of the research

fishery. As described above, these modifications to quotas and

retention limits are necessary to end overfishing and rebuild

overfished stocks.

However, as suggested by the commenter, NMFS tried to accommodate

incidental landings in other fisheries. Under the final action,

fishermen can still retain some non-sandbar LCS while they fish for

other species (e.g., reef fish and snapper-grouper). A fisherman with a

directed shark permit could harvest 33 non-sandbar LCS per trip and a

fisherman with an incidental shark permit could land 3 non-sandbar LCS

per trip. The trip limit for directed shark permit holders is based, in

part, on BLL observer program data from 2005 to 2007. The observer data

showed that fishermen with directed shark permits fishing for snapper-

grouper kept, on average, 12 sharks per trip. A 33 non-sandbar trip

limit should allow fishermen with directed permits to retain sharks

(besides sandbar sharks) they catch while targeting other species and

should minimize discards. The incidental trip limit is based on what

fishermen with incidental permits currently retain under the status

quo.

NMFS also considered whether limiting sandbar harvest to the

research fishery would increase dead discards or if NMFS needed to

include a trip limit for sandbar sharks. Observer data

[[Page 40661]]

indicate that fishermen targeting species other than sharks (i.e.,

snapper-grouper) catch, on average, one sandbar shark per trip. Given

that sets on trips not targeting sharks are typically shorter in length

and duration than sets on trips targeting sharks, it is anticipated

that sandbar sharks would remain on the gear for less time than on

trips targeting shark species, and, thus, would have a greater

likelihood of being released alive. Therefore, the current trip limits

are not anticipated to result in increased dead discards.

Comment 6: NMFS needs to take a more a precautionary approach in

regard to hammerheads, common thresher sharks, and blacktip sharks in

the Atlantic region, which have an unknown stock status; NMFS should

follow international organizations such as the International Union for

the Conservation of Nature (IUCN), and pay attention to red listed

shark species such as hammerheads, dusky, and sand tiger sharks, which

would likely be taken (under the quota or as bycatch) in the fishery

and are particularly depleted. Considering these factors, as well as

NMFS' poor record for shark recovery to date, NMFS should close the

commercial shark fishery; NMFS should put a moratorium on LCS fishing

in the Atlantic until the stock status of Atlantic blacktip sharks is

known; NMFS should only allow fishing for Atlantic blacktip sharks

within scientifically derived limits when the population is capable of

supporting such exploitation and bycatch of prohibited species is

demonstrated to be insignificant.

Response: NMFS is implementing management measures based on the

latest NMFS-conducted stock assessments for blacktip, dusky, and

sandbar sharks, and the LCS complex, which represent the best available

peer reviewed science. NMFS is also implementing management measures

based on the latest Canadian-based stock assessment for porbeagle

sharks, which NMFS determined represents the best available science.

The management measures in this final rule are consistent with the

rebuilding targets established in these shark stock assessments, and

the rebuilding time periods are as short as possible, taking into

account the status and biology of the stocks and needs of the fishing

communities according to NS 1 guidelines.

In general, shark stock status determinations are based on NMFS-

conducted stock assessments. NMFS uses the Southeast Data, Assessment,

and Review (SEDAR) process for shark stock assessments, which is open

to the public and uses the Center for Independent Experts (CIE) to

provide independent peer reviews of assessment results.

These assessments consider landings by other countries such as

Mexico and Canada but contain mostly U.S. data. For shark species that

may have substantial landings outside of the United States (e.g., blue

shark), NMFS also relies on the results of the Standing Committee for

Research and Statistics (SCRS) of the International Commission for the

Conservation of Atlantic Tunas (ICCAT). These stock assessments are

conducted with scientists and data from throughout the world, including

U.S. scientists and data. In the case of porbeagle sharks, SCRS

determined that ICCAT did not need to conduct a stock assessment since

Canada had already conducted one. As such, NMFS scientists reviewed the

Canadian stock assessment and determined it was appropriate for use in

domestic management.

To date, NMFS has not relied on outside organizations, such as the

IUCN, when making stock status determinations. This is due to the

unknown nature of the data and peer review methodology applied by these

outside groups.

The latest blacktip shark assessments recommended not increasing

catch levels in the Gulf of Mexico and keeping catch levels at

historical levels in the Atlantic. To account for differences in catch

between the Gulf of Mexico and Atlantic region and to follow

recommendations from the blacktip shark stock assessments, NMFS is

implementing a Gulf of Mexico non-sandbar LCS regional quota and an

Atlantic non-sandbar LCS regional quota based on historical landings

from HMS shark dealer reports from 2003 to 2005. Based on dealer

reports, the Atlantic region has a lower non-sandbar LCS base quota

(188.34 mt dw) than the Gulf of Mexico region (439.5 mt dw). Since the

Atlantic blacktip shark stock assessment recommended not changing

landings and did not recommend prohibiting the harvest of blacktip

sharks, NMFS is implementing this regional quota based on historical

landings in the Atlantic region.

Unlike the sandbar shark assessment, which recommended a specific

TAC, or the blacktip stock assessments, which recommended specific

catch levels, the dusky shark assessment did not give specific

mortality targets. Dusky sharks have been on the prohibited species

list in 2000; however, there continue to be dusky shark discards in

other fisheries. NMFS estimated reduction in dusky shark mortality as a

result of sandbar shark and non-sandbar LCS management actions. Based

on the reduced quotas and trip limits, NMFS estimates that dusky shark

mortality will likely be reduced from 33.1 mt dw to 9.1 mt dw per year.

This is a 73-percent reduction in mortality compared to the status quo,

which should help rebuild the dusky shark population and afford dusky

sharks more protection compared to the status quo.

Finally, NMFS is aware of a separate external hammerhead shark

stock assessment that is being conducted, but not aware of separate

stock assessments for common threshers or sand tiger sharks. Conducting

stock assessments at a species specific level is difficult due to the

lack of species-specific information collected to conduct stock

assessments for each species of sharks involved in commercial shark

fisheries. Therefore, species such as hammerhead sharks and common

threshers are managed within species complexes. While NMFS is not

implementing management measures for hammerhead sharks, it is likely

that hammerhead shark landings will be reduced due to the reduced non-

sandbar LCS quota and retention limits.

NMFS has not considered specific management actions for common

threshers in this rulemaking, but an annual quota is in place for the

pelagic shark complex (488 mt dw), and underharvests of this complex

are not applied to the next season. NMFS may consider additional

management actions for this species, as warranted, in the future.

For sand tiger sharks, based on their high vulnerability to

exploitation and to discourage any future directed fisheries, NMFS

included these sharks on the prohibited species list in 1997.

Additionally, as with the dusky sharks, a reduction in discards based

on the sandbar shark and non-sandbar LCS quotas and management actions

taken in this rulemaking should afford additional protection for sand

tiger sharks.

Comment 7: NMFS should include landings by states, such as

Louisiana and Alabama, against the Federal shark quota.

Response: NMFS counts both Federal and state landings of sharks

against the Federal shark quota since sharks in both state and Federal

waters contribute to the stocks that are federally managed. This

approach is consistent with that used by NMFS to manage other Federal

fisheries such as reef fish and snapper grouper.

Comment 8: NMFS should consider species-specific quotas. NMFS

should begin with blacktip sharks, since an assessment was done for

them in both

[[Page 40662]]

the Gulf of Mexico and Atlantic. This is because of variation in life

history parameters, different intrinsic rates of increase, and

different catch and abundance data for all species listed in each

complex. Managing sharks as a complex is inappropriate.

Response: NMFS is moving towards species-specific management,

including species-specific quotas. However, for some species, NMFS has

only limited data which requires management to be based on species

within a complex. Based on the latest stock assessment, NMFS has

removed sandbar sharks from the LCS complex, resulting in a sandbar

shark quota, and a non-sandbar LCS quota, comprised of blacktip, bull,

smooth hammerhead, scalloped hammerhead, smooth hammerhead, lemon,

nurse, silky, tiger, and spinner sharks. The sandbar shark assessment

gave a specific TAC for sandbar sharks, which resulted in NMFS

accounting for sandbar shark mortality in all fisheries (both

commercial and recreational sectors) before establishing a base

commercial quota of 116.6 mt dw. In order to monitor this quota, NMFS

removed sandbar sharks from the LCS complex and set a separate

commercial quota for this species.

However, while separate blacktip shark assessments were conducted,

NMFS has decided not to implement separate blacktip shark quotas

because the shark fishery is a multi-species fishery. The majority of

sharks harvested in the directed shark fishery, other than sandbar

sharks, are blacktip sharks. For instance, 82-percent of sharks caught

in the directed shark fishery in the Gulf of Mexico region are blacktip

sharks (not including sandbar sharks). The next highest landings were

for hammerhead sharks at 7-percent and bull sharks at 5-percent. The

South Atlantic region had the same pattern with the highest percentage

of landings, apart from sandbar sharks, for blacktip sharks at 72-

percent followed by hammerhead sharks at 14-percent, and then bull

sharks at 4-percent. Because NMFS did not have species-specific

assessments on other species besides blacktip and sandbar sharks, and

because the majority of the LCS catch, not including sandbar sharks, is

blacktip sharks, NMFS created a non-sandbar LCS complex with its own

quota. To account for differences in catch between the Gulf of Mexico

and Atlantic region, NMFS is implementing a regional Gulf of Mexico

non-sandbar LCS quota and an Atlantic non-sandbar LCS quota.

Comment 9: NMFS should split the sandbar quota between research and

bycatch. This could be a ``phased-in'' quota system where \2/3\ of the

quota in the first year would be allocated toward incidental landings

and \1/3\ would be allocated toward research.

Response: In establishing the base commercial quota of 116 mt dw,

NMFS allocated approximately 42 mt dw to account for recreational

harvest and dead discards. A further allocation of \1/3\ of the base

commercial quota for the research fishery in the first year would only

result in 38.8 mt dw for research. In addition, due to overharvests in

2007 (see Appendix C in the FEIS for more details), NMFS is reducing

the base commercial sandbar shark quota to 87.9 mt dw annually for five

years. A \1/3\ allocation of this reduced base commercial quota would

only leave 29.3 mt dw of sandbar quota available for research. One

third of either the base annual quota or the adjusted five year quota

would not provide enough trips or observations to produce statistically

sound data on the several research questions NMFS intends to address,

especially given that NMFS has already accounted for dead discards and

recreational harvest in setting the base commercial quota. In addition,

a \2/3\ allocation of the sandbar quota would only allow fishermen

(directed or incidental) to retain a few sandbar sharks (less than what

was proposed under alternative suite 3, where all permit holders would

have been allowed to retain sandbar sharks). Thus, splitting the quota

into thirds would not provide benefits to the fishery or to the

research needed for future stock assessments. However, as funds are

available, NMFS would have scientific observers on vessels fishing

outside the research fishery that would monitor discards of sandbar

sharks. If large number of sandbar dead discards occurred in the

fishery, resulting in mortality above the recommended TAC, NMFS would

take management action, as necessary. Additionally, NMFS will monitor

landings of sandbar shark by state fishermen and deduct those landings

from the base commercial quota, as needed.

Comment 10: NMFS should not use the maximum rebuilding time period

(70 years) allowed under the law but should use a more precautionary

approach. NMFS should not strive for maximum sustainable yield (MSY)

for blacktip and sandbar sharks. The proposed sandbar shark quota of

116 metric tons (mt) is too high to ensure recovery of this population

and NMFS should consider adopting an even lower final number.

Response: The 2005/2006 stock assessment for sandbar sharks

discussed three rebuilding scenarios, including: a rebuilding timeframe

if no fishing were allowed; a TAC corresponding to a 50-percent

probability of rebuilding by 2070; and a TAC corresponding to a 70-

percent probability of rebuilding by 2070. Under no fishing, the stock

assessment estimated that sandbar sharks would rebuild in 38 years.

Under the NS 1 guidelines, if a species requires more than 10 years to

rebuild, even in the absence of fishing mortality, then the specified

time period for rebuilding may be adjusted upward by one mean

generation time. Thus, NMFS added a generation time (28 years) to the

target year for rebuilding sandbar sharks. The target year is the

number of years it would take to rebuild the species in the absence of

fishing, or 38 years for sandbar sharks. NMFS determined that the

rebuilding time that would be as short as possible for sandbar sharks

would be 66 years, taking into account the status and biology of the

species and severe economic consequences on fishing communities. This

would allow sandbar sharks to rebuild by 2070 given a rebuilding start

year of 2004, the last year of the time series of data used in the

2005/2006 sandbar shark stock assessment. Since sharks are caught in

multiple fisheries, to meet the rebuilding timeframe under a no fishing

scenario, NMFS would have to implement restrictions in multiple

fisheries to eliminate mortality, such as entirely shutting down

multiple fisheries to prevent bycatch. If NMFS were to shut down the

shark fishery completely, such action would likely have severe economic

impacts on the fishing community and it would likely result in

difficulties for fisheries in which Councils recommend management

measures as well as Commission-managed fisheries, which often catch

sharks as bycatch. In addition, prohibiting all fishing for sharks

would impact NMFS' ability to do collect data for future management.

The recommended TAC associated with a 50-percent probability of

rebuilding by 2070 is 172.7 mt dw (or 240 mt whole weight (ww)).

However, given the life history of sharks including slow growth, late

age of maturity, and relatively small litter sizes, as described in the

1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks

(1999 FMP), a 50-percent probability of success is minimally acceptable

for sharks. Thus, NMFS adopted the TAC corresponding to a 70-percent

probability of rebuilding by 2070, or 158.3 mt dw (220 mt ww). This

timeframe is consistent with the Magnuson-Stevens Act, the NS 1

guidelines at Sec. 600.310, the 2006 Consolidated HMS FMP (which

[[Page 40663]]

includes the rebuilding requirements of the 1999 FMP), and the other

national standards that require NMFS to consider, among other things,

the economic and social impacts of the fishery.

b. Discard Issues

Comment 11: NMFS should consider sandbar shark discards outside the

research fishery. NMFS should also be concerned with derby-style

fishing with the reduced quotas and retention limits.

Response: NMFS considered sandbar shark discards outside the shark

research fishery when it established the base sandbar shark quota (see

Table A.1 in Appendix A of the Final EIS). In doing so, NMFS set a

commercial sandbar shark quota that, in addition to considering

discards in other fisheries outside the shark research fishery, should

keep sandbar shark mortality below the recommended TAC of 158.3 mt dw

each year. In order to deter derby-style fishing outside the shark

research fishery, NMFS reduced the trip limit for directed shark permit

holders to 33 non-sandbar LCS per trip. This trip limit should allow

the LCS fishery to stay open longer than it has in the past while also

minimizing, to the extent practicable, regulatory discards and derby-

style fishing.

Comment 12: NMFS should acknowledge that dusky shark bycatch will

be an issue both inside and outside the research fishery. Seventy

percent of dusky sharks are dead at haulback.

Response: Dusky sharks caught as bycatch under the new management

measures would result in dead discards to the same extent as current

levels. Currently, most of the dusky shark discards occur within the

directed shark fishery (on average, 24.5 mt dw per year), with a total

of 33.2 mt dw of dusky sharks discarded on average per year. Under the

final action, there would no longer be a directed LCS fishery. For a

limited number of trips, the few vessels that qualify for participation

in the shark research fishery will be allowed to direct on LCS.

Depending on the number of trips taken within the research fishery,

NMFS estimates that yearly dusky shark discards could be between 0.5 mt

dw (that would be caught during 64 trips associated with the adjusted

sandbar shark quota) and 0.6 mt dw (that would be caught during 92

trips associated with the base sandbar shark quota), with a total of

9.1 mt dw of dusky shark discards across all fisheries. This is a 73-

percent reduction in dusky shark discards compared to the status quo.

Comment 13: NMFS should evaluate if highgrading will be an issue

outside the research fishery.

Response: Under the final action, highgrading, or the discarding of

smaller, less valuable animals and retaining only the most valuable

animals to fill a retention limit, is expressly prohibited. However,

because fishermen aim to have the highest profits per trip, highgrading

can be an issue whenever trip limits are implemented.

Based on the latest shark stock assessments, NMFS is implementing a

reduced shark trip limit from 4,000 lb of LCS per trip to 33 non-

sandbar LCS per trip for directed permit holders operating outside the

research fishery. NMFS expects that this reduced trip limit

(approximately one quarter of what a directed fisherman lands on a

shark trip under the status quo) and the prohibition on the retention

of sandbar sharks will result in fishermen with directed shark permits

no longer targeting LCS. Additionally, this trip limit is higher than

the average number of sharks shark fishermen currently retain when

targeting other species (i.e., 12 sharks from non-targeted trips).

Thus, NMFS assumes that the reduced trip limit will allow fishermen

with directed shark permits to keep all incidentally caught non-sandbar

LCS as they target non-sharks species. Because fishermen will likely be

allowed to keep all sharks caught when fishing for other species, the

reduced trip limit should reduce the incentive to engage in

highgrading.

c. Species Complexes

Comment 14: NMFS should reconsider the use of the term ``non-

sandbar LCS.'' This title is awkward and might confuse some fishers.

The use of ``LCS'' or ``LCS (other than sandbars)'' is recommended

following the same logic as when referring to ``pelagic sharks'' (which

otherwise would be referred to as non-blue or porbeagle pelagic

sharks.)

Response: NMFS considered several names for the group of LCS that

does not include sandbar sharks. NMFS felt keeping the title ``LCS''

for the new complex may be confusing with the ``old'' LCS complex

(i.e., the complex prior to the implementation of the amendment). NMFS

chose ``non-sandbar LCS'' because it was the most explicit description

of the new complex: the LCS complex with sandbar sharks removed.

Comment 15: NMFS is taking sandbars out of the LCS complex. Where

did NMFS get the authority to remove a given species from a complex?

Response: NMFS has the authority under the Magnuson-Stevens Act to

manage all coastal sharks. As part of this authority, NMFS created the

complexes in 1993 to aid in managing the fishery. Thus, NMFS may set

species-specific quota as appropriate, given the best available

science. Indeed, NMFS has often changed the specific species in each

management unit starting with the creation of five prohibited species

in 1997. In this case, the sandbar shark assessment gave a specific TAC

for sandbar sharks, which resulted in NMFS establishing a base

commercial quota of 116.6 mt dw. In order to monitor this quota, NMFS

is establishing a quota for sandbar sharks that is separate from the

quota for the rest of the LCS complex.

Comment 16: The Director of the North Carolina Division of Marine

Fisheries stated that NMFS should place blacktip sharks in the small

coastal shark (SCS) complex.

Response: NMFS is not changing the composition of the SCS complex

in this rulemaking. Rather, based on the TAC recommended by the sandbar

shark stock assessment, NMFS is establishing separate quotas for

sandbar sharks and the non-sandbar LCS. The non-sandbar LCS complex

consists of blacktip, bull, smooth hammerhead, scalloped hammerhead,

lemon, nurse, silky, tiger, and spinner sharks. Blacktip sharks are the

species most commonly caught within this complex. In the 1993 FMP for

Atlantic Sharks, blacktip sharks were placed within the LCS complex

based on fishery dynamics. Blacktip sharks are more commonly caught

with gear targeting LCS (i.e., BLL gear) rather than gear used to

target SCS (i.e., gillnet gear). In addition, the blacktip shark stock

assessments recommended that blacktip shark landings should not change

or increase from historical catch levels. By placing blacktip sharks

within the SCS complex, NMFS could either drastically reduce the

blacktip shark regional quotas if the 454 mt dw SCS complex quota was

not increased (i.e., the 454 mt dw quota would include the quota for

blacktip sharks and SCS), or increase the SCS complex quota to include

historical catch of blacktip sharks. Placing blacktip sharks within the

SCS complex and increasing the overall SCS quota could result in

increased catch levels of SCS. These catch levels may or may not be

sustainable for the SCS complex. Therefore, at this time, NMFS is not

placing blacktip sharks within the SCS complex.

[[Page 40664]]

d. Over- and Underharvests

Comment 17: NMFS received several comments regarding transferring

quota. These include: NMFS should consider transferring unused quota to

the next season; NMFS should not consider transferring underharvests to

the next season even if species are not overfished or the status is

unknown. This is because other bodies such as the IUCN have expressed

concern as to some of these species; NMFS should subtract quota

overages from the subsequent season's quota and disallow carryover of

underharvests to the next season for populations that are of unknown

status, overfished, or experiencing overfishing.

Response: Under the final action, NMFS will generally subtract

overhavests that occurred during one fishing year from the next fishing

year for each individual species or species group. Depending on the

amount of overharvests, NMFS may decide to split the overharvests over

several years to allow continuation of the shark research fishery and

to minimize dead discards. In addition, NMFS will add underharvests up

to 50-percent of the base quota to the next fishing year for species or

species grouping in which the stock status of all species is other than

unknown, overfished, or subject to overfishing. For all other species

and species groups, underharvests will not be carried. Not applying

underharvests should increase the likelihood that these stocks rebuild

in a timelier manner. This approach is also used in other fisheries

that NMFS manages, including bluefin tuna and swordfish.

e. Shark Display and Research Quota

Comment 18: NMFS received several comments in favor of the

preferred management measures affecting display quotas under

alternative suite 4. These comments included: NMFS should allocate 2 mt

dw of sandbar sharks from the overall 60 mt ww display and shark

research quota to public display and research under exempted fishing

permits (EFPs); the 60 metric tons (mt ww) quota for display permits

and research should be reduced if it has never been attained; NMFS

should prohibit dusky sharks for public display; and, dusky sharks have

no display value.

Response: In order to stay within the TAC recommended by the

sandbar stock assessment, NMFS is reducing the commercial sandbar shark

quota, and restricting the number of sandbar sharks that can be

collected under EFPs and Display Permits. The final action restricts

the sandbar shark collection to 1 mt dw for research under EFPs and 1

mt dw for public display to ensure that the sandbar shark mortality

stays below the 158.3 mt dw TAC and to ensure that the shark research

fishery has sufficient quota to produce statistically sound data. The

preferred allocations to the EFP and display quotas were based on the 2

mt dw average annual collection of sandbar sharks under EFPs,

scientific research permits (SRPs), and display permits from 2000 to

2006. As such, NMFS does not anticipate that these restrictions will

affect future sandbar shark collections under these types of permits.

Due to the severity of the overfished and overfishing status of

dusky sharks, the collection of dusky sharks for public display will be

prohibited. Aquariums that currently have dusky sharks will not be

allowed to replace them. In addition, NMFS will review the allocation

of dusky sharks for research under EFPs on a case by case basis. This

should allow for research under EFPs on dusky sharks to continue, as

appropriate.

Comment 19: NMFS received numerous comments stating that the

existing research/display quotas for sharks should not be reduced

because: the quota is already small and not expected to increase in the

future; the EFP quota has never been exceeded; the collection of

sandbar sharks for public display is not a significant contributing

factor to the reported decline of this stock; there is a

disproportionate amount of regulation on display permits compared to

other permits for other fishermen; any reduction in quotas or

restrictions on species, if scientifically warranted and if based on

scientifically peer-reviewed stock assessments, should come entirely

out of the commercial quotas which have not been historically adhered

to, and where the animals are landed dead with zero conservation or

educational value; the sandbar shark is one of only a handful of shark

species that are exceptionally hardy and have historically adapted well

to closed aquarium environments.

Response: While the 60 mt ww (or 43.2 mt ww) shark display and

research quota is small compared to the current commercial 1,017 mt dw

LCS quota, the final action does not change the overall display and

research quota. The final action, however, does significantly reduce

the commercial quota and prohibits most commercial fishermen from

harvesting sandbar sharks. Additionally, the final action prohibits

recreational retention of sandbar sharks.

As described in the response to Comment 18 in this section, the

quantity of sandbar and dusky sharks authorized for display and

research (outside of the shark research fishery) is limited under the

final action. For sandbar sharks, the amount is limited to what has

been landed, on average, under various EFPs during the past six years.

Therefore, no negative economic impacts are anticipated with the EFP

allocation of sandbar sharks. EFPs and display permits will no longer

be issued for the collection of dusky sharks. This regulation is

consistent with the prohibition on the harvest of dusky sharks by

commercial and recreational fishermen and, because of the overfished

status and length of time for rebuilding, is appropriate for dusky

sharks.

Finally, because EFPs exempt fishermen from certain regulations

that other fishermen must follow, NMFS will continue to issue EFPS,

SRPs, and display permits only if the applicant has shown compliance

with other relevant regulations regarding reporting, notifying

enforcement, and tagging animals.

Comment 20: NMFS should consider an exemption to allow for the live

take of dusky sharks for public display. Aquariums need to work on the

husbandry of these sharks.

Response: As discussed in the response to Comment 18 in this

section, due to the severity of the overfished and overfishing status

of dusky sharks, dusky sharks will be prohibited for collection for

public display. Moreover, dusky sharks do not do well in captivity.

Currently, only 13 dusky sharks per year have been collected under

EFPs. Under the final action, NMFS will review the allocation of dusky

sharks for research under EFPs on a case by case basis. This should

allow for research under EFPs on dusky sharks to continue, as

appropriate.

Comment 21: NMFS should explain how it will prohibit sandbar and

dusky sharks for EFPs and display permits.

Response: EFPs allow fishermen to harvest species otherwise

prohibited by existing regulations. NMFS is not prohibiting the

collection of sandbar sharks under the EFP program. Instead, 1 mt dw

for research under EFPs and 1 mt dw for public display will be

allocated to fishermen to ensure that the sandbar shark mortality stays

below the 158.3 mt dw TAC. However, due to the severity of the

overfished and overfishing status of dusky sharks, dusky sharks will be

prohibited for collection for public display because they do not do

well in captivity. While NMFS cannot prohibit fishermen from

incidentally catching dusky sharks, NMFS can prohibit their retention

for public display or research under EFPs when necessary. NMFS reviews

the

[[Page 40665]]

allocation of dusky and sandbar sharks under EFPs and Display Permits

on a case-by-case basis. If research on dusky sharks is deemed

scientifically necessary, even if it includes mortality, NMFS may issue

the necessary EFPs. However, such permits must have scientific merit

and the research conducted by scientific staff in order for the permit

to be issued. As is currently done for EFPs and Display permits, NMFS

will continue to monitor all sources of mortality as a result of EFPs,

Display Permits, Scientific Research Permits, and Letters of

Acknowledgments, and these data will be incorporated in future stock

assessments.

Comment 22: NMFS should provide more information on how they track

landings under EFPs and what happens to HMS that are collected under

EFPs.

Response: NMFS requires persons who receive EFPs to report the

number of total animals kept, discarded alive, and discarded dead under

the EFP program. This information is published in the Federal Register

every November/December in conjunction with NMFS' request for comments

and Notice of Intent to issue EFPs and related permits in the

subsequent year. The information is also published in the annual SAFE

Report and may be used in stock assessments, if appropriate. Permittees

who do not provide this information are not issued a permit in the

future until all required reporting from past permits was received.

NMFS does not track what is done with the animals (e.g., if they are

sold to aquariums) after they have been collected and landed by the

original permittees.

2. Porbeagle Sharks as Prohibited

Comment 1: NMFS received several comments in support of prohibiting

the harvest of porbeagle sharks including: NMFS should prohibit the

harvest of porbeagle sharks because even seasoned fishermen misidentify

porbeagle sharks as mako sharks; the prohibition on the possession of

porbeagle sharks is long overdue; NMFS should prohibit the harvest of

porbeagle sharks and implement stricter management measures that

address porbeagle take, including bycatch; and NMFS should prohibit the

possession of porbeagle sharks, however, if bycatch of porbeagle sharks

is allowed, the rule will have little effect on the overall status of

porbeagle sharks.

Response: As a result of the 2005 Canadian stock assessment for the

North Atlantic porbeagle shark, NMFS has determined that porbeagle

sharks are overfished, but overfishing is not occurring Under the final

action, the commercial quota is 1.7 mt dw. NMFS estimates that

commercial discards will be approximately 9.5 mt dw, and recreational

catch, including landings in tournaments, will be approximately 0.1 mt

dw per year. This TAC of 11.3 mt dw should increase the likelihood that

fishing mortality will remain low, allowing the stock to rebuild within

100 years (see rebuilding plan in Chapter 1 of the FEIS). While bycatch

of porbeagle sharks will continue, the majority of porbeagle sharks

caught currently are discarded alive. For instance, of an average of

723 porbeagle sharks that were discarded annually in the PLL fishery,

only 161.3 were discarded dead whereas 561.6 were discarded alive. The

final action is not expected to change this discard mortality rate.

Therefore, dead discards should continue to be low and not negatively

affect the stock.

Comment 2: NMFS received several comments, including comments from

the states of Massachusetts and New Hampshire, opposing any prohibition

of porbeagle shark retention including: there is a small historical

porbeagle shark catch in the United States that is not significantly

contributing to the loss of the porbeagle shark. The U.S. porbeagle

fishery has remained sustainable under current regulations; other

countries, such as Canada, should be more responsible for rebuilding

this stock as they contribute more towards Atlantic-wide fishing

mortality; NMFS should pressure Canadians to reduce their porbeagle

catch; porbeagle sharks are the only big game fish in the Northeast;

and placing porbeagle sharks on the prohibited species list takes away

33-percent of the potential catch in New England.

Response: The final action to reduce the TAC for porbeagle sharks

will cap U.S. fishing mortality at the current level. Given the low

level of porbeagle catch in U.S. waters, capping mortality at the

current U.S. fishing level, assuming Canada also continues to take

action to conserve porbeagle sharks, should allow the porbeagle shark

population to rebuild within 100 years (see rebuilding plan in Chapter

1 of the FEIS). Capping fishing levels should also discourage any

future directed fishery on this species.

Other countries that have a directed fishery for porbeagle sharks

have reduced their porbeagle quotas. For instance, the Canadian

porbeagle quota was cut by 80-percent in 1998. It was cut back even

further in 2001 and again in 2006. The current Canadian quota is 250 mt

per year, 185 mt of which may be taken by the directed porbeagle shark

fishery, with the rest of the quota being allocated for bycatch. In

addition, according to the latest ICCAT Recommendation (07-06), all

contracting parties are obligated to reduce mortality of porbeagle

sharks in their directed porbeagle shark fisheries. NMFS may take

additional management measures in the future, as necessary, if future

stock assessments warrant such action.

Comment 3: The Atlantic States Marine Fisheries Commission (ASMFC)

requested establishing a 2 mt quota for porbeagle sharks to allow a

limited harvest. Allowing a small harvest of porbeagle sharks would

help the ASMFC set identical species groups while offering protection

from overharvest.

Response: NMFS is setting a reduced TAC for porbeagle sharks of

11.3 mt dw, of which 1.7 mt dw is allocated to commercial harvest. This

cap on fishing mortality at its present level by commercial and

recreational fishermen should prevent a directed fishery for this

species from developing in the future. In addition, it is an 88-percent

reduction in the current commercial quota of 92 mt dw, which will help

ensure rebuilding within 100 years (see rebuilding plan in Chapter 1 of

the FEIS).

Comment 4: Does NMFS have any evidence that Canadian porbeagle

sharks go into U.S. waters? Is NMFS aware if U.S. fishermen are

catching these Canadian sharks?

Response: Tagging data provide strong evidence that there are

distinct porbeagle populations in the Northeast and Northwest Atlantic,

and that the Northwest Atlantic stock is a separate population that

undertakes extensive annual migrations between Canada and northeastern

United States. Given these migrations, porbeagle sharks found in U.S.

and Canadian waters are considered to be one stock that is shared by

U.S. and Canadian fishermen.

Comment 5: If porbeagle sharks are overfished but overfishing is

not occurring, what would the rebuilding timeframe be if the fishery

was to continue at the current level?

Response: Since the 2005 Canadian stock assessment on which NMFS

based its analysis included U.S. commercial landings of porbeagle

sharks, capping fishing mortality at its current level should allow the

species to rebuild within 100 years (see rebuilding plan in Chapter 1

of the FEIS).

Comment 6: Will NMFS propose similar porbeagle shark prohibition

measures at the International Commission for the Conservation of

Atlantic Tunas (ICCAT) meeting this year? Since most landings for

porbeagle

[[Page 40666]]

occur outside the United States, international cooperation is needed to

help manage this species.

Response: Adopted at the 2007 ICCAT annual meeting in Turkey, ICCAT

Recommendation (07-06) obligates all Contracting Parties to take

appropriate measures to reduce fishing mortality in fisheries targeting

porbeagle sharks. While the United States does not have a directed

porbeagle shark fishery, and U.S. commercial and recreational landings

are small (1.8 mt dw), this ICCAT measure should help reduce mortality

of porbeagle sharks that are targeted by other countries. The United

States is also implementing a reduced TAC of 11.3 mt dw, which is below

the current commercial quota of 92 mt dw per year for porbeagle sharks,

and encouraging the live release of porbeagle sharks. This final action

should prevent a directed fishery from developing for porbeagle sharks

in U.S. waters in the future.

Comment 7: NMFS underestimated the number of porbeagle sharks being

caught. This is because the Marine Recreational Fisheries Statistics

Survey (MRFSS) data is flawed. Porbeagle sharks are not present in New

England waters when MRFSS is collecting their surveys in this area.

Response: NMFS currently is working on a marine recreational

information program to improve data collection from the recreational

sector. Due to the rarity of porbeagle shark landings, it is difficult

to estimate porbeagle landings with survey data, which only sample a

portion of the recreational fishing fleet and then extrapolate the

number of fish caught based on the estimated number of anglers.

Therefore, NMFS may consider census data (i.e., a trip ticket or a

call-in system where all porbeagle shark landings are counted) in the

future to better estimate recreational porbeagle landings.

Comment 8: The Large Pelagic Survey (LPS) started out as a tuna

survey, and the LPS survey happens during the middle of summer. There

is no LPS survey taking place when porbeagle sharks are present, so

NMFS' data is skewed.

Response: The LPS survey was designed to capture recreational

landings in the Northeast during the time period when most fishing

takes place north of Virginia. Currently, the survey consists of

randomly selected weekly telephone and dockside intercept interviews,

with mandatory participation from June 1 through October 31 from

Virginia to New York. The survey is conducted July 31 through October

31 for states north of New York. Past phone surveys indicated this is

when most of the fishing effort occurs in this region. As mentioned in

the response to Comment 7 in this section, due to the rarity of

porbeagle shark landings, it is difficult to estimate porbeagle

landings with survey data. Therefore, NMFS may consider census data

(i.e., trip ticket or a call-in system where all porbeagle sharks

landed are counted) in the future to better estimate recreational

porbeagle landings.

Comment 9: NMFS should have recreational fishermen report their

porbeagle shark landings.

Response: NMFS currently does not require recreational fishermen to

report shark landings. NMFS collects data on recreational fishing catch

and effort through the LPS and the MRFSS, which is considered the best

available science for determining recreational landings. These surveys

collect data on fishing effort and catch of highly migratory species.

In addition, randomly selected fishing tournaments are an important

component of HMS recreational fisheries data. However, because of the

rarity of porbeagle shark landings, in general, NMFS may not be

capturing all of the porbeagle sharks landed recreationally through

these types of surveys. Thus, NMFS is currently working on ways to

gather more data on recreational landings of porbeagle sharks.

3. Retention Limits

Comment 1: The proposed 22 non-sandbar LCS retention limit is not

economically feasible and is the equivalent of shutting down the

fishery; NMFS should consider a trip limit of 0 to 75 non-sandbar LCS

to maintain economic viability.

Response: NMFS assessed and analyzed the economic impacts of the

proposed retention limits, which are summarized in the FRFA and Chapter

8 of the FEIS. The proposed 22 non-sandbar shark LCS retention limit

was calculated by dividing the available quota over average annual

number of trips that landed non-sandbar LCS by directed and incidental

permit holders as reported in the Coastal Fisheries logbook and the HMS

logbooks. At the time of the Draft EIS, the available non-sandbar LCS

quota was determined by the average annual landings reported in the HMS

and Coastal Fisheries logbooks from 2003 to 2005. However, during the

comment period, the Southeast Fisheries Science Center (SEFSC)

recommended using HMS shark dealer reports (i.e., southeast and

northeast general canvass and SEFSC quota monitoring databases) to

calculate historical landings of non-sandbar LCS since the stock

assessments were, in part, based on landings reported by HMS shark

dealer reports. Therefore, in the FEIS, NMFS used the shark dealer

reports to calculate the non-sandbar LCS base quota. Because the HMS

shark dealer reports include landings by both state and Federal shark

fishermen, whereas logbook data includes landings by only federally-

permitted shark fishermen, using dealer reports results in a higher

non-sandbar LCS base quota.

In this final action, NMFS is using a higher base quota. After

accounting for overharvests that occurred in 2007 (see Appendix C of

the Final Environmental Impact Statement), NMFS is revising the

retention limits based on the larger non-sandbar LCS quota. The final

measures implement a 33 non-sandbar LCS trip limit for directed permit

holders and a three non-sandbar LCS trip limit for incidental permit

holders. While the trip limit for directed permit holder has increased

from what was proposed in the Draft EIS, NMFS assumes that fishermen

with directed shark permits will no longer target non-sandbar LCS

outside the research fishery. Rather, a 33 non-sandbar LCS trip limit

allows fishermen to keep non-sandbar LCS while they target other

species, such as reef fish and snapper-grouper. Based on BLL observer

program data from 2005 to 2007, fishermen with directed shark permits

fishing for snapper/grouper kept, on average, 12 sharks per trip. Thus,

this trip limit should help in preventing excess discards. However,

this retention limit will be too low to create an incentive for

fishermen to target non-sandbar LCS.

NMFS is aware that the revised retention limit of 33 non sandbar

sharks per vessel/trip is a significant reduction from the current

4,000 lb dw LCS retention limit for directed permit holders. These

measures are necessary, however, to rebuild overfished stocks, reduce

bycatch, and end overfishing consistent with NMFS's obligations under

the Magnuson-Stevens Act.

Comment 2: NMFS should consider a per day limit in lieu of an

individual trip limit. NMFS could reduce the limit to something like

2,000 lb non-sandbar LCS per day. This would allow a larger amount to

be harvested in a single trip, making it more profitable for the

fishermen. A day limit would also keep quota available for longer

throughout the year.

Response: NMFS has not considered a per day trip limit because of

the difficulty in determining how NMFS would monitor what a vessel

harvests within a 24 hour period during a multiday trip. Currently the

shark fishery is managed on a per trip basis, as are most of the HMS

fisheries. While

[[Page 40667]]

a higher per day limit may allow for a larger single trip, which may

reduce discards, it would be difficult for NMFS to monitor when a

vessel left and returned to port and whether or not this was done

multiple times within 24 hours, especially if vessels visited several

ports and were not required to possess vessel monitoring systems (VMS).

A per trip limit is easier to enforce; no matter what port a vessel

returns to, it would be held to the same trip limit. While a per day

limit may reduce the number of trips and elongate the season based on

how gillnet and BLL trips targeting non-shark species typically fish,

the trip limits in the final action were devised in such a way to keep

the non-sandbar LCS season open longer than they have been in the past.

NMFS estimates that under the non-sandbar trip limit in this final

action, the fishery should remain open the entire year. Given the

reduced trip limits to accommodate the reduced shark quotas, NMFS

believes that dividing the available quota across the historical

fishing effort should help the shark fisheries stay open longer. In

addition, since directed shark permit holders will presumably no longer

target non-sandbar LCS based on those reduced trip limits and the

prohibition on retention of sandbar sharks outside the research

fishery, the non-sandbar LCS fishery will likely be incidental in

nature where non-sandbar LCS are landed while fishermen target other

species throughout the year.

Comment 3: NMFS should propose a 4,000 lb level per year for

directed permit holders and grant the least productive vessels an

incidental permit.

Response: Based on the available quota (see Appendix C in the FEIS

for more details), NMFS is setting a non-sandbar LCS trip limit of 33

non-sandbar LCS for directed shark permit holders (approximately 1,000

lb dw per trip of non-sandbar LCS); incidental permit holders would be

allowed 3 non-sandbar LCS per trip. If fishing effort were to stay the

same as the average level of effort from 2003-2005, then NMFS expects

the shark fishing season to stay open for the entire fishing year with

these trip limits. NMFS has chosen a trip limit that would utilize the

entire non-sandbar LCS quotas outside the research fishery, assuming

fishing effort remains at the average level from 2003-2005. A 4,000 lb

dw limit per year for non-sandbar LCS would be approximately four trips

per year for directed fishermen. At this time, NMFS feels that such a

retention limit would be overly restrictive; however, if NMFS finds

that the 33 non-sandbar LCS per trip for directed fishermen does not

sufficiently rebuild the overfished stock of sandbar sharks or prevent

overfishing, then trip limits can be adjusted, as appropriate.

Fishermen selected to participate in the shark research fishery would

be afforded higher trip limits consistent with research objectives and

would be allowed to land all shark species, except prohibited sharks.

In order for NMFS to change retention limits for individual vessels

based on their past landing history, NMFS would likely consider an IFQ

or LAPP. However, as explained in response to Comment 2 under

``Quotas'' above and in Chapter 1, it would take NMFS several years to

implement an ITQ system. Under the current timeline under the Magnuson-

Stevens Act for establishing a plan amendment to end overfishing, NMFS

has insufficient time to establish an IFQ or LAPP for sharks at this

time. However, NMFS could consider developing an IFQ or LAPP for sharks

as well as other highly migratory species in the future.

Comment 4: NMFS should carve out a retention limit specific to

existing gillnetters. Gillnetters are being penalized by the preferred

retention limit because they catch very few sandbar and dusky sharks.

Response: NMFS believes that revised quotas and retention limits

for non-sandbar LCS that apply to all gear types are more appropriate.

These revised retention limits include a higher retention limit for

directed shark permit holders compared to incidental shark permit

holders. While sandbar and dusky sharks may be less likely to be caught

in gillnet gear compared to BLL gear, setting separate gillnet

retention limits was not considered as a part of this rulemaking mainly

because NMFS has serious concerns regarding interaction rates with

marine mammals and protected resources with gillnets. Given these

interactions set forth in the following paragraph, NMFS believes it is

inappropriate to implement measures that might result in increased

fishing effort with this gear type. For example, setting different trip

limits for gillnet gear could result in displaced BLL fishermen moving

to the gillnet fishery.

The five year incidental take statement (ITS) for the drift gillnet

fishery in the 2003 Biological Opinion (BiOp) was 10 loggerhead sea

turtles (with 1 mortality), 22 leatherback sea turtles (with 3

mortalities) and 1 smalltooth sawfish (with zero mortalities). The ITS

was specific to drift gillnet gear as strikenet gear had not interacted

with protected species, at that time, and sink nets were not considered

to be part of the shark gillnet fishery. However from 2003 to 2007

(2003 being the start of the ITS period), vessels with shark permits

using drift, sink, and strike gillnets interacted with a total of 13

loggerhead sea turtles (3 of which died or were unresponsive when

discarded), 1 leatherback sea turtle and 2 bottlenose dolphins (1 of

which died). In addition, in January 2006, an Atlantic right whale calf

was caught and died in gillnet gear off the northeast coast of Florida.

Therefore, NMFS is not establishing a higher specific gillnet retention

limit at this time.

Comment 5: NMFS should consider capping the number of vessels that

can deploy gillnets for sharks.

Response: There are currently only 4 to 6 sink and strike

gillnetting vessels combined that target sharks (Carlson and Bethea,

2007). Given the reduction in trip limits as a result of this

rulemaking, and restrictions and regulations under the Atlantic Right

Whale Take Reduction Plan for this gear, NMFS does not believe there

would be a significant increase in shark gillnet fishing in the future.

Comment 6: NMFS should lower the incidental catch limit for non-

sandbar LCS to be more in line with the current average (3 non-sandbar

LCS/vessel/trip); NMFS should not decrease the directed permit holder

retention limits by 30-percent while increasing the incidental

retention limit by more than seven times; NMFS should provide better

justification for raising the trip limits for incidental permit

holders; the proposed retention limit increase for incidental permit

holders could increase fishing effort and bycatch; NMFS should consider

restricting incidental take of non-sandbar LCS.

Response: In the final action, NMFS establishes retention limits of

33 non-sandbar LCS per trip for directed permit holders and 3 non-

sandbar LCS per trip for incidental permit holders. NMFS initially

proposed retention limits of 22 non-sandbar LCS per trip for both

directed and incidental permit holders because NMFS considers the

future non-sandbar shark fishery outside the shark research fishery as

mainly incidental in nature (i.e., fishermen would not target non-

sandbar LCS based on the low retention limits). Under the proposed

scenario, incidental permit holders could have experienced a net

positive economic benefit, given the retention limit of 22 non-sandbar

LCS trip limit was more than the average of 3 non-sandbar LCS per trip

that they currently retain. Such an increase in trip limits for

incidental permit holders could have resulted in increased fishing

pressure on sharks by incidental permit holders.

[[Page 40668]]

Based on public comment and to acknowledge differences among

directed and incidental permit holders (e.g., on average, directed

permit holders discard more sandbar and dusky sharks (8.1 mt dw and

25.7 mt dw per year, respectively) than incidental permit holders (1.5

mt dw and 3.8 mt dw per year, respectively)), NMFS' final action is to

set separate retention limits based on permit type. Directed permit

holders will be allowed a higher retention limit than incidental permit

holders. This affords directed permit holders, who may have paid more

for their directed shark permit and who presumably rely on shark

products for a larger part of their income, a higher retention limit

than if all permit holders had the same retention limit.

Comment 7: NMFS should clarify how a retention limit based on the

number of sharks per trip would work. What happens if you get 100

sharks on a line? Under these new regulations, one will have to make

multiple trips to be legal.

Response: Under current regulations, NMFS has a directed LCS trip

limit of 4,000 lb dw. When fishermen exceeded this trip limit on a

given set, they would often cut their gear and leave it while they

returned to port to offload their legal trip limit. Once they had

offloaded, they would return to retrieve the rest of their gear and

catch. The same principle applies for this final action. However, due

to the reduction in the retention limit and the prohibition on the

harvest of sandbar sharks, NMFS assumes that fishermen with directed

shark permits would no longer target non-sandbar LCS as they have in

the past. Rather, fishermen would keep non-sandbar LCS only while they

target other species, such as reef fish and snapper-grouper. The trip

limit in this final action of 33 non-sandbar LCS for directed shark

permits should minimize dead discards of sharks that fishermen catch

while in pursuit of other species.

Comment 8: NMFS should have proposed different retention trip

limits for different species in different regions because there are

more sandbars available in the Atlantic and more blacktip sharks

available in the Gulf of Mexico; NMFS should split trip limits by state

given the tendency of different areas to catch sandbar or dusky sharks;

NMFS should consider the fact that Louisiana fishermen catch mostly

blacktip sharks and no sandbar or dusky sharks and, therefore, should

have a larger retention trip limit.

Response: Based on public comment, NMFS analyzed regional quotas

and retention limits for two regions: the Atlantic and Gulf of Mexico

regions. As a result, NMFS is implementing regional quotas based on the

results of the blacktip shark assessment, overharvests that occurred in

2007 (for more details, see Appendix C), and the fact that the ASMFC

interstate shark management plan will implement measures in state

waters of the Atlantic. Regional quotas allow for a higher non-sandbar

LCS quota in the Gulf of Mexico region, which is comprised of a healthy

stock of blacktip sharks. Regional quotas also allow for a lower non-

sandbar LCS quota in the Atlantic region where the stock status of

blacktip sharks is unknown and the majority of dusky sharks are caught.

However, while the final action sets regional quotas for non-

sandbar LCS, NMFS is not implementing regional non-sandbar LCS

retention limits. Instead, the same retention limit for non-sandbar LCS

would apply in the Atlantic and the Gulf of Mexico regions. NMFS

believes that a single retention limit, regardless of region, will help

with enforcement and be less confusing for fishermen. For example, with

one retention limit, fishermen fishing near the Florida Keys could move

between the two regions on one trip. If there were two different

retention limits, then fishermen would need to stay in one area per

trip or risk landing a higher trip limit in the wrong region. Finally,

while the analyses for setting these retention limits used historical

fishing effort as a proxy for determining the retention limit, it is

uncertain how future effort would be allocated among regions, or even

states. This added uncertainty makes it difficult to determine a

region-specific or state-specific retention limit, given the other

management measures that are changing as a result of this final action.

Comment 9: NMFS should consider having a set-aside quota for the

incidental fishermen so that they can still retain sharks when the

directed fishery is closed.

Response: As a result of the final actions in this rule, NMFS is

assuming that fishermen with directed shark permits will no longer

target non-sandbar LCS. Rather, fishermen will likely keep sharks only

while they target other species such as reef fish and snapper-grouper.

As such, the non-sandbar LCS fishery would be incidental in nature and

non-sandbar LCS will likely be landed only incidental to the non-shark

species that the fishermen would target throughout the year. Given the

reduced trip limits for non-sandbar LCS, NMFS believes that the shark

fishery will remain open for longer periods than in the past, possibly

the entire year. Given the analyses that indicate the fishery will be

open most of the time and the change in status of the fishery, NMFS

believes that an incidental set aside is not needed at this time.

Comment 10: NMFS should consider a trip limit that is not based on

weight since most fishermen do not have scales on their vessels.

Response: Under the final action, NMFS is basing the trip limits on

the number of sharks per trip for both directed and incidental permit

holders.

Comment 11: If 7 out of 10 LCS landed are sandbar sharks, as NMFS

claims, and NMFS has a 500+ mt dw non-sandbar LCS quota, then NMFS'

discard calculations are flawed. A 500+ mt dw non-sandbar LCS quota

would result in 3,500 mt of sandbars being discarded.

Response: The catch composition described above would only be

realized if 1) fishermen were directing effort on sharks, and 2) there

was a 4,000 lb dw trip limit. This catch composition, which was based

on information from NMFS BLL observer reports, was used to estimate the

number of trips that the shark research fishery could take to harvest

the available sandbar shark quota, assuming there was a 4,000 lb dw LCS

trip limit within the research fishery.

However, for trips outside the research fishery, sandbar sharks

would be prohibited and there would be reduced non-sandbar LCS trip

limits. Therefore, NMFS assumes that directed shark permit holders

would no longer make trips targeting non-sandbar LCS because of the

significant reduction in retention limits and the fact that sandbar

sharks could not be retained, therefore, the catch composition and

subsequent sandbar discards described in the comment above would not

apply to trips occurring outside the research fishery. Given this

assumption, and based on the best available science from logbook,

dealer reports, and observer program data, NMFS estimates that

incidental sandbar shark mortality outside the research fishery would

be approximately 40 mt dw. This estimate was determined by evaluating

logbook data and observer reports to estimate sandbar shark discards

from pelagic longline (PLL) gear (4.3 mt dw), discards by recreational

fishermen (27 mt dw), discards within the shark research fishery (0.3

mt dw), sandbar sharks discarded by fishermen without HMS permits (6.3

mt dw), and sandbar sharks that used to be landed by incidental

fishermen (2.3 mt dw).

[[Page 40669]]

4. Fins On Requirement

Comment 1: NMFS received several comments in support of a ban on

shark finning as well as support for the proposal to land sharks with

their fins attached. Commenters believe that shark identification is

hampered by fin removal, enforcement is made easier if sharks are

landed with fins attached, that the quality of data collected would

improve, which is critical to improving the sustainability of shark

stocks, and that technical difficulties of landing sharks whole could

be alleviated with input from fishery experts and NOAA staff. A

commenter also stated that NMFS should implement this measure promptly

in the Atlantic while also taking steps to ensure a similar measure is

implemented in the U.S. Pacific waters.

Response: On December 21, 2000, the Shark Finning Prohibition Act

(Public Law 105-557) (SFPA) was signed into law. The SFPA amended the

Magnuson-Stevens Act section 307(1)(P), making it unlawful for any

person ``(i) to remove any of the fins of a shark (including the tail)

and discard the carcass of the shark at sea; (ii) to have custody,

control or possession of any such fin aboard a fishing vessel without

the corresponding carcass; or (iii) to land any such fin without the

corresponding carcass.'' On February 11, 2002 (67 FR 6194), NMFS

published a final rule that established regulations which, among other

things, prohibit any person from engaging or attempting to engage in

shark finning; possessing shark fins without the corresponding

carcasses while on board a U.S. fishing vessel; and landing shark fins

without the corresponding carcasses. In this Amendment, NMFS is

selecting an alternative that will require fishermen to land sharks

with their fins naturally attached. This requirement will improve

enforcement, species identification, data quality for future stock

assessments, and further prevent the practice of shark finning. In the

U.S. Pacific Ocean, three Regional Fishery Management Councils

recommend shark management measures to NMFS: the Pacific Fishery

Management Council, the North Pacific Fishery Management Council, and

the Western Pacific Management Council. The Councils may consider

recommending amendments to fishery management plans to include measures

to land sharks with fins attached in the U.S. waters of the Pacific

Ocean.

Comment 2: NMFS received several comments in opposition to landing

sharks with fins attached stating that this requirement would result in

large amounts of waste at the dock, that the market has grown

accustomed to receiving sharks in log form, that it will be more

difficult for law abiding fishermen to comply with the law, and it will

do nothing for those intent on breaking the law who may still bring

only fins to the docks.

Response: While this requirement will change current fishing

practices, NMFS does not believe that the requirement to land sharks

with fins attached is overly burdensome for the following reasons. The

requirement to land sharks with fins attached will allow fishermen to

leave the fins attached by at least a small piece of skin so that the

fins could be folded against the carcass and the shark packed

efficiently on ice while at sea. Shark fins could then be quickly

removed at the dock without having to thaw the shark. Sharks may be

eviscerated, bled, and the head removed from the carcass at sea. These

measures should prevent excessive amounts of waste at the dock, since

dressing (except removing the fins) the shark may be performed while at

sea. While this will result in some change to the way in which

fishermen process sharks at sea, because the fins may be removed

quickly after the shark has been landed, NMFS expects that the market

will continue to receive sharks in their log form. Alternatively, the

dealers may decide to accept shark carcasses with the fins still

attached. No person aboard a vessel with a shark permit would be

allowed to possess shark fins without the fins being attached to the

corresponding carcass until after the shark has been landed.

Individuals that do not have a shark permit or who land shark fins

detached from the corresponding carcass will be in violation of the

regulations and subject to enforcement action.

Comment 3: NMFS received several comments regarding the 5-percent

fins to carcass ratio stating that 1) the ratio is wrong and NMFS needs

to collect data to re-examine the ratio because it is different for all

species, 2) NMFS should urge Congress to revise the fin to carcass

ratio in the SFPA, 3) making fishermen land sharks with fins attached

could still lead to a violation of the 5-percent ratio, and 4)

fishermen are unsure of which weight to record in their logbook if the

5-percent ratio remains in effect and sharks are landed with fins

attached.

Response: NMFS first implemented the 5-percent fin-to-carcass ratio

in the 1993 Shark FMP. This ratio was based on research that indicated

that the average ratio of fin weight to dressed weight of the carcass

was 3.6 percent, and the sandbar fin ratio was 5.1 percent. In December

2000, the SFPA was signed into law. The SFPA established a rebuttable

presumption that any shark fins landed from a fishing vessel or found

on board a fishing vessel were taken, held, or landed in violation of

the shark finning ban if the total weight of shark fins landed or found

on board exceeded 5-percent of the total weight of shark carcasses

landed or found on board. This management measure was implemented by

NMFS through a final rule released in February 2002. NMFS may conduct

additional research on the fin-to-carcass ratio in the shark research

fishery, though any changes to the 5-percent ratio will have to be

modified by Congressional action. In order to help fishermen document

that sharks were landed with their fins attached, NMFS intends to

modify the dealer weigh-out slips so that dealers may clearly document

that the sharks were landed with fins attached. Consistent with the

regulations at Sec. 635.30(c)(3), a person that has been issued a

Federal shark LAP and who lands shark in an Atlantic, Gulf of Mexico,

or Caribbean coastal port must have all fins and carcasses weighed and

recorded on the weigh-out slips specified in Sec. 635.5(a)(2) and in

accordance with regulations at part 600, subpart N. Fishermen may

either record the weight of the whole shark landed or they may record

carcass and fin weights separately. Dealers must report the dressed

carcass weight separately from the fin weight.

Comment 4: NMFS received several comments, including one from the

State of Florida, that NMFS should recalculate the conversion factor

between dressed weight and whole weight of a shark since more of the

shark is going to be landed.

Response: The 1.39 conversion factor from dressed weight to whole

weight is used to convert the dressed (gutted) weight of a shark, (the

weight of the shark carcass in a log form with fins removed) to a whole

weight. NMFS will continue to monitor shark quotas in dressed weight

(i.e., carcass in log form with fins removed) and will use shark

landings recorded via dealer reports to monitor the quota outside the

shark research fishery. Therefore, the conversion factor should not

need to be recalculated since the definition of dressed weight would

still constitute a shark log with fins removed. Currently, dealers

record the fin weights and dressed weight of the shark carcasses

separately on their dealer reporting forms; in this rule, NMFS

clarifies this reporting requirement. However, NMFS will monitor the

situation and may change the conversion factor if appropriate.

[[Page 40670]]

Comment 5: NMFS received several comments stating that NMFS should

allow fishermen to remove just one pectoral fin, remove all fins except

the pectoral fins, allow the removal of fins from species in the SCS

complex, and allow vessels operating in the shark research fishery to

remove the fins since those vessels would have 100-percent observer

coverage. NMFS also received several comments from the State of Florida

that NMFS should allow fishermen to remove the tail of the shark at sea

and that NMFS should provide fishermen with a diagram depicting the

proper way to clean and land sharks with fins attached.

Response: The provision to land sharks with their fins attached

allows fishermen to bleed, eviscerate, and remove the head at sea while

cutting the fins almost all the way off so that the fins can be folded

and the shark can be packed on ice. Authorizing the removal of certain

fins or the fins of a specific species, or within a species complex, or

from vessels within the research fishery could create additional

enforcement problems and complicate compliance. Therefore, NMFS is

requiring that all fins remain attached to the carcass through landing

for all vessels. Because there are potentially many ways that the

sharks may be dressed while leaving the fins attached, NMFS does not

believe it is appropriate to provide specific instructions on how to

dress sharks because more than one method may be used. NMFS only

requires that sharks be landed with their fins naturally attached.

Fishermen are allowed the flexibility to dress the shark and tailor the

method to their specific operation or dealer requirements, providing

they land all sharks with their fins naturally attached.

Comment 6: NMFS received several comments regarding the potential

food safety or Hazardous Analysis of Critical Control Point (HACCP)

concerns if shark fins cannot be removed until the shark is landed

because it may be difficult to keep the core temperature of the shark

at 40 degrees in 90 degree heat. The state of Florida commented that

NMFS should test shark meat quality to determine if there is a decrease

in quality as a result of regulatory actions.

Response: The Food and Drug Administration (FDA) published

regulations (December 18, 1995; 60 FR 65092) mandating the application

of the HACCP principles to ensure the safe and sanitary processing of

seafood products. Although these regulations do not apply to fishing

vessels or transporters, the processors of domestic seafood must comply

with the regulations as it applies to incoming product. Dealers should

consult the FDA Center for Food Safety and Applied Nutrition Fish and

Fisheries Products Hazards and Controls Guidance for guidance on FDA

regulations. The provision to land sharks with their fins attached

allows fishermen to bleed, eviscerate, and remove the head at sea while

cutting the fins almost all the way off so that the fins can be folded

and the shark can be packed on ice. Because the sharks may be dressed

and the fins cut almost all the way off the shark at sea before it is

packed on ice, the shark should not have to be thawed to completely

remove the fins once the shark is landed. In addition, reduced

retention limits for non-sandbar LCS should reduce the number of sharks

that are landed per trip, therefore decreasing the amount of processing

time at the dock. NMFS might conduct tests through the shark research

fishery to see if the new fins on requirement affect fish meat quality.

However, the results of these tests would be limited in use as the

higher retention limits in the shark research fishery could increase

processing times and therefore lower meat quality.

Comment 7: NMFS received several comments regarding international

cooperation and imports including, 1) NMFS should set a firm shark

conservation precedent for the international community, 2) NMFS should

not get too far out in front of the international community, and 3) the

United States should ban imports of shark fins from countries that do

not prohibit shark finning.

Response: The United States has taken an active role in promoting

improved international shark conservation and management measures in

international fora such as Regional Fisheries Management Organizations

(including ICCAT), the United Nations General Assembly, the Convention

on International Trade of Endangered Species (CITES), and the

Convention on Migratory Species. Consistent with the United Nations

Food and Agricultural Organizations' International Plan of Action for

sharks, the United States completed and implemented the National Plan

of Action (NPOA) for sharks in February 2001. The NPOA calls for data

collection; assessment of elasmobranch stocks; development of

management measures, where appropriate; research and development of

mitigation measures to reduce shark bycatch; and outreach and

education. The requirement to land sharks from the U.S. Atlantic Ocean

with their fins attached should help raise awareness in the

international arena of enforcement issues associated with shark finning

bans and the 5-percent fin-to-carcass ratio. NMFS published a proposed

rule on April 4, 2008 (73 FR 18473), that would amend the International

Trade Permit (ITP) Program to require shark fin importers, exporters,

and re-exporters (shark fin traders) to obtain an ITP consistent with

ICCAT recommendations. This requirement would provide needed

information on shark fin trade participation and would provide NMFS

enforcement access to trade records, since the export of shark fins is

one of the primary economic incentives for much of the U.S. Atlantic

shark fishery.

5. Time Area Closures

Comment 1: NMFS should include the Marine Protected Areas (MPAs)

recommended by the South Atlantic Fishery Management Council (SAFMC) in

alternative suite 5 because if that alternative were selected, the MPAs

proposed by the SAFMC would still need to be implemented.

Response: NMFS decided to include a prohibition on shark BLL

fishing in the MPAs in several of the alternative suites in order to

ensure that the SAFMC's Amendment 14 prohibition on bottom tending gear

would include HMS BLL gear. NMFS needed to implement complementary

regulations in order for the MPAs to be effective. Since alternative

suite 5 would have resulted in a closure of the entire shark fishery,

no shark BLL fishing would occur in the MPAs or elsewhere. Thus, NMFS

did not need to include a prohibition on shark BLL fishing in MPAs in

alternative suite 5.

Comment 2: NMFS received a number of specific comments regarding

the MPAs recommended by the SAFMC, including: 1) coordinates of MPAs --

NMFS should provide the correct coordinates for the Charleston Deep

Artificial Reef MPA; 2) NMFS should state the specific type of MPAs

being implemented (i.e., type II MPAs); and, 3) NMFS should include a

transit exemption for vessels traveling through proposed MPAs with BLL.

Response: NMFS is aware of problems with the coordinates provided

in the Draft Amendment for the Charleston Deep Artificial Reef and has

provided the correct coordinates for the Charleston Deep Artificial

Reef in Final Amendment 2 to the Consolidated HMS FMP. In the Draft

EIS, NMFS described the MPAs as type II MPAs according to the language

used in the SAFMC's Amendment 14. Type II MPAs are areas that are

closed to bottom fishing but allow trolling for coastal pelagics and

HMS. Since NMFS is prohibiting the

[[Page 40671]]

use of BLL gear in these MPAs there is no need to specify the type of

MPA in the proposed or final rules. Readers should refer to SAFMC's

Amendment 14 for more information on the type of MPAs being recommended

by the Council and being implemented by NMFS. NMFS did not implement a

stowage provision because very few HMS permitted vessels have

historically fished in the MPAs, and the MPAs are generally small in

size and can easily be circumnavigated by BLL vessels. If the SAFMC

recommends a stowage provision, then NMFS may consider a similar

backstop provision in the HMS regulations.

Comment 3: NMFS should implement VMS requirements for the SAFMC

Amendment 14 MPAs.

Response: Consistent with SAFMC's Amendment 14, which does not

include a VMS requirement, NMFS determined that it was unnecessary to

implement a VMS requirement for HMS vessels. NMFS has several other VMS

requirements in place for HMS vessels including all vessels with

gillnet gear during certain times of the year, BLL vessels in the

vicinity of the mid-Atlantic shark closed area, and all vessels with

PLL gear on board year-round. To the extent that some of those vessels

would fish in the vicinity of the MPAs, NMFS would be able to track

their movements. However, most vessels that do not fish with PLL and

maintain directed or incidental shark permits in the South Atlantic are

not required to have VMS.

Comment 4: NMFS should use the terms ``closed areas'' or ``area

closures'' to describe the locations where the proposed regulations

apply to avoid confusion on the intent of the MPAs (since they are for

snapper/grouper, and not sharks) and to improve compliance by

fishermen. ``Marine protected area'' is not a term used in the

Magnuson-Stevens Act. NMFS should clarify how and why closures for

fisheries management are part of the official MPA classification

system.

Response: NMFS chose to use the term Marine Protected Area or MPA

because that is the specific language provided in Amendment 14.

Although the intent of the MPAs is to protect snapper grouper species,

using nomenclature in this final rule that differs from that used to

refer to the closures in Amendment 14 may create confusion. As a

result, NMFS is referring to the closures in the same way as the SAFMC.

Comment 5: NMFS should prohibit the use of longline gear in

existing and new MPAs. The overall amount of bycatch within MPAs may

not be minimal when considered in the context of the relevant MPA and

the number of species and individuals found within the MPA.

Response: NMFS is prohibiting the use of BLL gear in all of the

preferred SAFMC MPAs because those are the areas the SAFMC has

determined to be important for certain grouper species that are

sometimes caught incidentally on shark BLL gear.

Comment 6: The ASMFC Spiny Dogfish and Coastal Sharks Management

Board would like NMFS to reconsider the closures off of North Carolina.

Specifically, the Board asks that the duration of the closure be

reduced to run from January 1 - May 14. This request is based on the

Coastal Sharks Technical Committee's recommendation for a state water

closure from May 15 through July 15 from Virginia to New Jersey. This

state water closure is designed to protect large adult female sandbar

sharks when they are on the pupping grounds. The closure off of North

Carolina was designed to protect juvenile sharks in the nursery area

during the winter; however the majority of the small sharks have

migrated out of that area by mid-May.

Response: The mid-Atlantic shark closed area was implemented to

protect juvenile sandbar sharks and all life stages of prohibited dusky

sharks. Survey data collected from the NOAA fisheries research vessel

Delaware II from April through May 2007 indicate that the majority of

sandbar sharks caught in the mid Atlantic shark closed area were

juvenile (56-percent immature vs. 44-percent mature). Therefore,

maintaining the mid-Atlantic closed area should continue to reduce the

number of interactions of BLL gear with sandbar and dusky sharks as

well as reduce the number of interactions with immature sandbar and

dusky sharks. This will provide positive ecological benefits for both

of these overfished shark stocks. Furthermore, measures implemented by

the ASMFC are not yet finalized. Once finalized measures are in place,

NMFS may consider taking additional action to complement state

measures. Implementing these measures before they are finalized and

implemented in the ASMFC Coastal Shark FMP could result in inconsistent

management measures.

Comment 7: The SAFMC and the South Carolina Department of Natural

Resources support the MPAs and maintaining the current time/area

closure as proposed in the draft amendment.

Response: This final action will implement the MPA provisions in

Amendment 14 and maintain the current time/area closure.

6. Reporting

Comment 1: NMFS should take action to ensure that fishermen report

their landings correctly and honestly as most fishermen do not

currently provide accurate reports.

Response: The regulations require fishermen to submit accurate and

truthful reports on their fishing activities. NMFS can and does verify

logbook reports and catch rates with observer reports, as needed. If

fishermen and/or dealers choose not to abide by the regulations, then

they may face enforcement action.

Comment 2: NMFS received many comments on the dealer reporting

timeframe, including: NMFS should consider stronger restrictions on

dealer reporting; NMFS should allow two-weeks for dealer reports to be

submitted; 10 days is acceptable for the report to be postmarked, but

not for NMFS to receive it; NMFS should consider more frequent

reporting; NMFS should consider 24 hour reporting for shark dealers;

NMFS should consider electronic reporting for dealers (once a week);

dealers still need to be able to fax reports; more frequent reporting

is not needed. NMFS should take action against dealers that are not

reporting; NMFS should not renew a dealer permit if they don't report

on time; making reports ``received by'' will not allow fishermen to

know if NMFS got their report on time; and NMFS should provide

confirmation numbers when dealer reports are received.

Response: NMFS prefers to require dealer reports be received within

ten days of the end of the reporting period at this time because a

``received by'' requirement can be tracked by NMFS, the dealers, and

enforcement more easily than a ``postmarked'' requirement. NMFS is

concerned about dealers that are not reporting and is working with the

Office of Law Enforcement to pursue shark dealers who do not meet their

reporting obligations. Additionally, given recent issues with dealers

not realizing that substantial landing reports were not received by

NMFS, NMFS feels that requiring reports to be ``received by'' a certain

day will aid in ensuring all reports are received by NMFS in a timely

manner. The final action does not require twenty-four hour reporting

because such reporting would result in an unduly increased reporting

burden for shark dealers at this time. NMFS may consider additional

modifications and/or adjustments to reporting frequency for future

implementation.

[[Page 40672]]

NMFS is currently capable of accepting electronic reports from some

dealers who have access to that data system in the Southeast Fisheries

Science Center and faxes of shark dealer landings. NMFS does not issue

confirmation numbers when shark dealer reports are received; however,

submitting dealer reports by FAX or electronically includes a date/time

stamp in addition to whether the transmission was successful or not.

Shark dealers may also consider using certified mail to provide

verification that the correspondence was received.

Comment 3: NMFS should be more proactive and contact dealers as the

quotas fill up.

Response: Significant overharvests in the shark fishery in recent

years have occurred because shark dealers were not submitting their

reports, or verifying that their reports were received by NMFS in the

time period required by NMFS regulations. NMFS is working to ensure

better compliance with its reporting regulations by encouraging shark

dealers to report on time or face possible enforcement action for

failing to do so.

Comment 4: Does NMFS have a specified time within which it must

turn around dealer reports?

Response: NMFS provides shark landings reports, by complex or

species, on a frequent basis to ensure participants are aware of

catches in the shark fishery. NMFS does not have a specified time frame

as to when it provides landings reports; however, efforts are being

made to provide more frequent shark landings updates in light of the

final action to close seasons when a species/complex quota has reached

80-percent of their quota.

Comment 5: NMFS should stick to its existing reporting system

rather than create a new one.

Response: NMFS will not institute a new reporting system for shark

dealers or fishermen in this final rule.

Comment 6: NMFS should not allow sharks to be listed as

unclassifieds and, if dealers continue to report unclassifieds, they

should have their permits revoked. Unclassified sharks should not be

counted against the sandbar shark quota because the sandbar shark quota

for the research fishery is already miniscule.

Response: Current regulations require that all sharks landed be

identified and reported at the species-level. This final action adds

language to clarify this requirement. While reporting sharks as

``unclassified'' violates the regulations, and NMFS has recently

completed shark identification workshops to improve shark dealers'

identification skills, NMFS must account for unclassified shark

landings to produce timely and accurate shark landings reports and

because this data is used in stock assessments. Under this final action

NMFS will use species composition data from the observer reports

outside the shark research fishery to determine which proportion of

unclassified sharks should be deducted from the appropriate quotas

(i.e., sandbar, non-sandbar LCS, SCS, and pelagic sharks). This

methodology is consistent with how unclassified sharks are treated in

stock assessments. Shark dealers that continually report sharks as

unclassified will be reported to NOAA Office of Law Enforcement and may

face enforcement action.

NMFS proposed counting all unclassified sharks from shark dealer

reports as sandbar sharks to provide dealers with an incentive to

identify sharks to the species level because if the quota for sandbar

sharks were filled, they would no longer be able to purchase sandbar

sharks. However, NMFS believes that allocating landings to the

appropriate complex/species based on observer data is a more accurate

means of accounting for unclassified landings. Furthermore, NMFS is

concerned that counting all unclassified sharks as sandbar sharks may

result in the shark research fishery closing prematurely.

Comment 7: NMFS received a comment stating that a dealer had

inadvertently reported all sharks landed in the past as sandbar sharks

and that they knew of no dealers that identify sharks at the species

level.

Response: All dealers are required to report shark landings at the

species level. NMFS instituted a requirement to attend shark

identification workshops to assist dealers in properly identifying

sharks in order to obtain more accurate landings data.

Comment 8: NMFS received a comment wondering how the stock

assessments can use the dealer data because of the lack of species-

level landings data for sharks.

Response: Many dealers do report at a species-specific level.

However, not all do. Thus, stock assessment scientists assign

unclassified sharks to a species/complex group based on species

composition data from the observer program. Regional and temporal

species composition data attained from observed trips are summarized

and applied to the unclassified sharks to estimate the proportion that

should be assigned to respective quotas and complexes.

Comment 9: NMFS received a comment in support of the workshops for

shark identification because dealers have observed a drastic reduction

in the number of sharks that are not being identified properly.

Response: NMFS is encouraged by the results of the shark

identification workshops for dealers. Better shark identification

should lead to more accurate landings data, which should improve the

quality of data used in stock assessments.

Comment 10: NMFS received several comments on the ``dealer''

definition (i.e., who is required to have a dealer permit), including:

NMFS should provide the current definition of a shark dealer; the

current definition is satisfactory; the proposed dealer definition is

appropriate; the first receiver cannot be the shark dealer; an

intermediary on land is needed solely for transport; and, the

definition should take into account multiple transfers.

Response: The current definition of a shark dealer is a person that

receives, purchases, trades for, or barters for Atlantic sharks from a

fishing vessel of the United States (50 CFR 635.4(g)(2)). When NMFS

implemented the shark identification workshops, many dealers were

confused as to whether they needed to attend a workshop because they

buy sharks from another dealer, who buys sharks from a fishing vessel.

Because the sharks originally came from a fishing vessel, these

secondary dealers had obtained a shark dealer permit. To clarify who

needs to attend the workshops and to aid enforcement, this final action

modifies the definition of shark dealers and is modified from the

proposed definition based on public comments. Specifically, the final

action clarifies that shark dealer permits are required only for

``first receivers.'' The definition of a ``first receiver'' at 50 CFR

635.2 is ``entity, person, or company that takes, for commercial

purposes (other than solely for transport), immediate possession of the

fish, or any part of the fish, as the fish are offloaded from a fishing

vessel of the United States, as defined under Sec. 600.10 of this

chapter, whose owner or operator have been issued or should have been

issued a valid permit under this part.''

Comment 11: Can federally permitted dealers buy state landed

sharks? Do federally permitted dealers have to report state landings?

Response: The current regulations at 50 CFR 635.31(c)(4) state that

federal dealers may purchase a shark only from an owner or operator of

a vessel that has a valid commercial federal permit for shark, except

that federal dealers may purchase a shark from an owner or operator of

a vessel that does not have a commercial federal permit for shark if

[[Page 40673]]

that vessel fishes exclusively in state waters (i.e., no federal

commercial shark permit). Federal dealer permit holders must report all

sharks landed, including those from state waters, and cannot purchase

any sharks, caught in state or Federal waters, once the Federal shark

fishing season is closed. Additionally, on May 6, 2008, the Spiny

Dogfish and Coastal Shark Board of ASMFC voted to require all state

dealers to obtain a federal shark dealer permit. As such, when the

ASMFC Coastal Shark FMP is fully finalized and implemented, expected in

2009, state shark dealers from Maine to Florida will be required to

obtain a federal shark dealer permit and attend shark identification

workshops.

Comment 12: NMFS received a comment questioning the mechanism that

requires dealers to report on time.

Response: All federally permitted shark dealers are required to

submit a dealer report on a bimonthly basis. Failure to do so could

result in enforcement action.

Comment 13: NMFS should implement the strongest possible

restrictions to ensure prompt and reliable reporting by dealers, within

24 hours if possible. Landings of 300 to 500-percent of allowable

quotas, even if subtracted in subsequent seasons, are simply not

acceptable and do not reflect the close attention and precautionary

action required to achieve sustainable shark fisheries.

Response: Accountability measures for quota overharvests are

necessary. The TAC has been reduced considerably and overharvests are

accounted for over time. Importantly, the final action includes closing

the fishery for a particular species when 80-percent of the quota is

reached with five days notice upon filing in the Federal Register in

order to reduce the likelihood of overharvests. NMFS will also send out

e-mail notices and conduct outreach regarding closures upon filing in

the Federal Register, giving fishermen five days to be notified of a

closure. Reduced retention limits and other effort control measures are

expected to reduce fishing mortality in the shark fishery. In addition,

under the final action, NMFS is changing the reporting requirements for

shark dealers so that shark dealer reports must be received by NMFS

within 10 days after the reporting period ends. This will ensure

timelier reporting and potentially avoid overharvests.

Comment 14: NMFS received several comments regarding excess shark

landings in state waters and NMFS' coordination with various states,

including: NMFS should preempt the State of Louisiana or others as

necessary pursuant to authority provided in the Magnuson-Stevens Act

(section 306(b)) if shark landings in state waters impact Federal shark

fishery management; NMFS should recognize that Federal fishermen are

catching adults during designated fishing seasons, while state

fishermen are catching juveniles all year long; NMFS should allow

Federally permitted fishermen to fish in state waters; NMFS should

ensure that state waters are closed at the same times as Federal waters

to protect juveniles; NMFS should consult with the states in order to

manage fisheries better; NMFS should require states to abide by Federal

rules; and NMFS should coordinate with the ASMFC.

Response: Pursuant to the Magnuson-Stevens Act, NMFS has

jurisdiction to manage fisheries in Federal waters of the Exclusive

Economic Zone (EEZ). Landings in state waters are counted against

Federal shark quotas because many shark species inhabit both Federal

and state waters, and thus make up one population or stock. NMFS

includes state landings in stock assessments for coastal sharks. This

practice is consistent with quota monitoring and management strategies

for many marine species.

NMFS has been working with the State of Louisiana, and other

states, to ensure consistent management strategies for sharks in state

and Federal waters due to excessive landings that occurred in Louisiana

state waters in 2007. In 2007, the State of Louisiana agreed with NMFS

to close its state waters when the federal fishery closed during the

third trimester of 2007. Additionally, ASMFC recently voted on final

management measures for a coast-wide state shark plan for states in the

Atlantic Ocean. The final measures included in the ASMFC Coastal Shark

FMP are expected to be effective in 2009. Many of the final measures in

the ASMFC Coastal Shark FMP are consistent with federal regulations and

will require commercial state shark fisheries to open and close with

federal openings and closures. The implementation of ASMFC's Coastal

Shark FMP could potentially lead to similar measures being implemented

in the Gulf of Mexico.

Comment 15: NMFS should provide information in the shark landings

update on the percentage of total shark landings that are state and

Federal.

Response: Federal dealers must report all landings; however, they

are not required to differentiate which landings are purchased from

Federal vessels and which shark products are purchased from state

vessels (if a Federal dealer also has a state dealer permit). Current

reporting requirements make it difficult to determine state versus

Federal landings, although NMFS generally does not need to distinguish

these landings because all landings are used in stock assessments and

are counted against the federal shark quota.

Comment 16: The stock assessment does not take the area inside

state waters into consideration.

Response: Stock assessments include both fishery dependent and

fishery independent landings and effort data from state and Federal

waters.

Comment 17: NMFS should not mandate that all shark fishing stop

entirely once the sandbar quota is met.

Response: NMFS will not close both the sandbar and non-sandbar LCS

fisheries if either quota is met. Rather, NMFS will close the sandbar

and non-sandbar LCS quota, individually, if either fishery reaches 80-

percent of its respective quotas.

Comment 18: The State of Florida supports decreasing the length of

time it takes to supply NMFS with landings information used to manage

the shark fishery. NMFS should also decrease the time it takes to make

this information available to the public. The time required for NMFS to

process such information should be established in a rule.

Response: NMFS makes every attempt to provide timely reports of

shark catches to constituents on a frequent basis in order for

fishermen to plan their activities accordingly. However, it is also

necessary to ensure that shark landings data are accurate prior to

making them available to the public. NMFS will attempt to provide more

frequent shark landings updates in the future.

7. Seasons

Comment 1: The change to one commercial season would lead to derby

fishing.

Response: NMFS believes that a commercial season that opens January

1 and remains open until 80-percent of the quota is achieved, coupled

with the significantly reduced retention limits for directed permit

holders, should adequately prevent derby fishing. Derby fishing is more

likely when seasons are shorter in duration, and when retention limits

are large enough to encourage targeting of a specific species. The

final action results in one season, opening January 1. Additionally,

the season is expected to remain open for most of the year as fishermen

outside the research fishery are not expected to make trips targeting

non-sandbar LCS because of reduced retention limits and the

[[Page 40674]]

prohibition on the retention of sandbar sharks.

Comment 2: NMFS received several comments including a comment from

the State of Florida regarding the proposal to open shark seasons on

January 1, including: NMFS should consider the fact that not all shark

species are present in all regions in equal abundance on January 1;

July may be a more appropriate time to open the season; January 1 may

be good for sandbar sharks but not other species; opening the season at

another time may result in the quota being filled before sharks arrive

in some regions; the season should be opened on January 1.

Response: NMFS is aware of the fact that sharks are migratory and

present in different areas, at different levels of abundance, at

different times of the year. In this final action, NMFS will only allow

landings of sandbar sharks by a limited number of vessels selected to

participate in a shark research fishery. Therefore, only vessels

participating in this fishery will be authorized to target sandbar

sharks, and only when a NMFS-approved observer is on board. Vessels

outside the research fishery would be allowed to keep 33 non-sandbar

LCS for directed permit holders and 3 non-sandbar LCS for incidental

permit holders. NMFS anticipates that this reduced retention limit will

likely result in directed shark fishermen no longer targeting non-

sandbar LCS outside the research fishery. Rather, shark fishermen would

be authorized to keep non-sandbar LCS incidentally caught while

targeting other species. Given that fishermen outside the research

fishery are not expected to target non-sandbar LCS, NMFS expects that

the shark seasons would be open longer, and fishermen in the regions

that have non-sandbar LCS present later in the year would still be able

to harvest non-sandbar LCS when they are present. In addition, opening

the season on January 1 should allow the shark fishery to overlap with

open seasons for other non-shark species and may reduce regulatory

discards that may occur as a result of keeping the shark season closed

until later in the year.

Comment 3: NMFS received numerous comments, including comments from

the ASMFC and the State of Florida that NMFS should open the season in

July instead of January 1 so the season would be open when sharks are

present in all areas and to prevent fishing mortality during shark

pupping season. Other comments included: NMFS should not allow shark

fishing during April, May, and June as these months are when shark

pupping occurs and state waters should be closed from May 15 through

July 15 to protect pupping; considering the size of the quota, shark

migration patterns, and the ASMFC closure, it is likely that the quota

would be harvested before sharks become available to fishermen in the

North Atlantic; beginning the fishing season on July 16 would allow the

quota to be shared geographically; opening the fishing season in July

would reduce mortality of pregnant females and ensure that northern

states have access to the fishery.

Response: Opening the season on January 1 and keeping it open until

80-percent of a quota is achieved may result in pregnant or neonate

sharks being landed along with other sharks. However, given the low

retention limits for non-sandbar sharks outside the research fishery

and because fishermen will not be allowed to retain sandbar sharks

outside the research fishery, NMFS expects that fishermen with directed

shark permits outside the research fishery will no longer target non-

sandbar LCS. This should reduce overall shark mortality, including

mortality of pregnant females during pupping season. The retention

limits should also allow fishermen to keep non-sandbar LCS that they

catch while targeting other species. If the season is closed from April

through June or July, vessels that land sharks while targeting other

species will have to discard all sharks. The ASMFC is implementing a

Coastal Shark FMP for sharks in state waters from Maine through

Florida. Since most shark pupping occurs in state waters, NMFS feels

the ASMFC plan may be more appropriate for addressing fishing mortality

of pregnant females or neonate sharks. However, now that the ASMFC plan

is expected to be implemented in 2009, NMFS may modify the season

closure in the future as a result of the ASMFC shark plan.

Comment 4: NMFS should provide more advance notice of season

openings because fishermen have had a hard time planning how much bait

they need to buy, planning for freezer spaces, etc.

Response: NMFS must complete proposed and final rulemaking prior to

the establishment of shark seasons. Under any final action establishing

an annual shark season, NMFS will open the fishing season on or about

January 1 of each year (except 2008). The season will likely remain

open longer than usual, dependent upon available quota. Rulemaking in

the Federal Register prior to the opening of the subsequent season's

start date (on or around January 1) will provide the available quota,

retention limits, and other pertinent information.

Comment 5: NMFS should implement one shark fishing season.

Response: NMFS is implementing one season, starting January 1 each

year. This date is more likely to overlap with open seasons for other

BLL and gillnet fisheries, and also provides fishermen a full calendar

year to harvest available quota.

Comment 6: NMFS should ensure that smaller amounts of shark are

consistently available throughout the year to help increase the price

and marketability of sharks since restaurants would know they could

count on it year round. Currently, with such short seasons, there is

not really a market.

Response: Short seasons under existing trip limits may quickly

flood markets, depressing prices for some shark products, particularly

shark meat. Shark meat prices are more likely to be affected by the

short seasons because there is less demand for shark meat than for

shark fins. The majority of shark fins are exported to other countries

and prices for shark fins tend to remain higher and more stable than

shark meat. In the past, fishermen with directed shark permits were

able to make profitable trips exclusively for sharks. Reduced retention

limits and prohibition on retaining sandbar sharks outside the research

fishery should reduce the likelihood that fishermen will make trips

targeting non-sandbar LCS outside the research fishery. Rather,

fishermen are more likely to harvest non-sandbar LCS incidentally while

targeting other species. NMFS expects that a fishing season that opens

on January 1 each year with lower retention limits will result in

smaller quantities of shark product being available for a larger

proportion of the year. This could conceivably increase demand and

marketability of shark products because the availability of meat and

fins would be more reliable throughout the year compared to the past

when shark seasons were only open for short periods of time. This

increased demand for shark products on behalf of wholesalers may

translate to elevated prices received by shark fishermen for shark meat

and fins.

Comment 7: NMFS should elaborate on the reasons that trimesters

were originally implemented for the commercial shark fishery.

Trimesters may still be necessary to reduce fishing mortality.

Response: Trimesters were originally implemented as a way to

increase the availability of shark meat throughout the year while also

reducing fishing mortality during peak pupping seasons and addressing

other bycatch concerns. This final action implements significant

[[Page 40675]]

measures to reduce fishing mortality of sharks(predominantly by

modifying quotas, retention limits, and species authorized to be landed

in commercial and recreational fisheries) and also implements measures

that are expected to result in small amounts of shark meat to be

available in the markets year-round.

These final measures should reduce the mortality of pregnant

females. Furthermore, the closed area off the coast of North Carolina,

which is important habitat for dusky and sandbar sharks, will continue

to be in effect. NMFS does not expect that fishermen will be able to

make a profitable trip ``targeting'' sharks with the preferred

retention limits and because of the fact that sandbar sharks may not be

possessed outside the shark research fishery. The resulting incidental

fishery will likely translate into significant benefits to shark

populations as a whole while also eliminating the need to maintain

trimesters.

Comment 8: Closing the season when landings reach the 80-percent

threshold should be sufficient, but can the other 20-percent of the

quota be filled in five days? NMFS should consider closing the shark

fishery at 90 to 95-percent of the quota and consider re-opening a

season if the quota has not been caught for a given season.

Response: NMFS requested public comment specifically on setting 80-

percent as a threshold for closing the fishery because it allows a

substantial percentage of the allowable harvest to occur, yet allows a

sufficient buffer to prevent overharvest from the time the 80-percent

is reached until the time NMFS can actually close the fishery. NMFS'

goal is to allow fishermen to harvest the full quota without exceeding

it in order to maximize economic benefits to stakeholders while

achieving long-term conservation goals and preventing overfishing.

Closing the fishery via appropriate rulemaking, while providing at

least a five-day notice of a closure (upon filing of the final rule

with the Office of the Federal Register and the availability of the

final rule for public inspection), should allow fishermen to complete

fishing trips that have already been initiated and/or provide fishermen

the chance to catch additional quota if they embarked on additional

trips prior to the closure. As mentioned previously, the reduced

retention limits and the fact that fishermen outside the research

fishery will not be allowed to land sandbar sharks is expected to

reduce the number of trips targeting non-sandbar LCS and keep the shark

season open year-round. Additionally, NMFS must take into account state

landings that continue to occur after closure of the Federal fishery.

NMFS believes that, given the two week reporting period for dealer

reports and the potential for late reporting, closing the fishery when

landings reach 90- to 95-percent of the quota would likely result in

overharvests. Overharvests will result in reduced quotas in the future

since all overharvests will be accounted for when establishing

subsequent seasons and quotas.

Comment 9: NMFS should allow more time prior to closing the

seasons. A 5-day notice will not work for PLL fishermen because their

trips are long.

Response: PLL gear is not the primary gear-type used to harvest

sharks. Most sharks are landed on BLL or gillnet gear on trips that

last several days. Fishermen deploying PLL gear generally target tunas

and/or swordfish depending on the time of the year and location.

Therefore, NMFS does not expect the rulemaking process for closing the

shark fishery, which would provide at least a five day notice upon

filing of the final rule with the Office of the Federal Register and

the availability of the final rule for public inspection, to have

adverse impacts on vessels deploying PLL gear. Before the 1999 FMP for

Atlantic Tunas, Swordfish, and Sharks, the shark fishery was closed via

appropriate rulemaking with five days' notice; therefore, there is a

precedent for this amount of time prior to taking action.

Comment 10: NMFS should consider a 3-day warning prior to closing

seasons to prevent overharvests, consistent with the notice granted in

the bluefin industry. This would better assure that quotas are not

exceeded. If NMFS does not decrease the closure time to three days, and

instead keeps five days, NMFS should adopt the trigger of 70-percent

rather than 80-percent.

Response: In closing the fishery through appropriate rulemaking,

NMFS will provide at least a five day notice for closures to maximize

the proportion of the quota that fishermen may harvest without

exceeding the quota and to allow time for notifying fishermen of a

closure. When the final rule is filed with the Office of the Federal

Register and available for public inspection, NMFS will send out e-mail

notices and other outreach materials to notify the public of the

fishery closure within at least 5 days. NMFS anticipates that the

notice will publish in the Federal Register approximately one day after

filing, and then the fishery would officially close no earlier than

five days from the original filing date. NMFS believes closing the

fishery for individual species or species complexes with at least five

days notice upon filing in the Federal Register is adequate to prevent

overharvests. Historically, shark trips have been 1-4 days. Therefore,

a minimum of five days' notice should be adequate because it should

give fishermen enough time to complete trips that are already in

progress. Significant reductions in retention limits and the fact that

fishermen outside the research fishery cannot retain sandbar sharks

should also reduce the potential for overharvests in the period between

meeting the 80-percent threshold and when the fishery is actually

closed a minimum of five days later.

Comment 11: NMFS should predict how long the season should remain

open to fill the quota based on past catch rates.

Response: In recent years, seasons have been set based on available

quota, past catch rates, and other considerations. Given the final

action, NMFS feels that continuing this practice may continue to result

in significant overharvests and may not be the best strategy for

ensuring that sandbar, dusky, and porbeagle shark populations rebuild.

Overharvests in 2006 and 2007 may be indicative of past catch rates not

being appropriate indicators of future catch rates because of the fact

that in those years, catch rates were greater and the quota was

smaller, leading to overharvests. In addition, significant changes in

quotas, authorized species, and retention limits would further

complicate establishing seasons in advance.

Comment 12: NMFS needs to analyze the length of trips that land

sharks and base the time needed to notify the fishery on the length of

those trips.

Response: Observer data indicate that most trips targeting sharks

last between 1-4 days depending on the region, season, and amount of

sharks that are landed. However, this duration corresponds to past

retention limits that are being reduced substantially for directed

permit holders. Five days was selected as a reasonable minimum amount

of time for fishermen to get word about a fishery closure and either

finish a current trip without discarding dead sharks, or initiate a

trip for another species prior to the closure while keeping the ability

to land sharks incidentally. NMFS anticipates that the significant

reduction in retention limits and the prohibition on retaining sandbar

sharks outside the research fishery will result in most fishermen

targeting other species and incidentally landing non-sandbar LCS.

[[Page 40676]]

Comment 13: NMFS needs to look at past data to determine whether a

80-percent threshold is adequate to prevent overharvests based on how

much quota is caught after the seasons.

Response: NMFS selected the 80-percent threshold for closing the

season, with a minimum of five days' notice upon filing of the final

rule with the Office of the Federal Register, because it should ensure

that the majority of the quota is harvested without exceeding the

quota. Giving fishermen the opportunity to harvest most of the quota

within a given season is important because the final action carries

forward only underharvests for species that are not overfished,

experiencing overfishing, or of unknown status.

8. Regions

Comment 1: NMFS received several comments regarding regions.

Comments in favor of maintaining three regions under the status quo

included: NMFS should assess the impacts of moving to one region; NMFS

should describe the rationale for moving to one region; NMFS should not

implement one region; having one region ignores the stock assessments

and the temporal nature of the fishery; NMFS should implement separate

permits, separate fishing zones, and separate quotas, so that fishermen

in one zone are not penalized for a quota overharvest that occurs in

another zone; the ASMFC requests a minimum of two management regions

(Gulf of Mexico and Atlantic States) to ensure equitable and

biologically sound geographic distribution of quotas; a one-region plan

could reduce or eliminate any quota for Atlantic States if Gulf of

Mexico states overharvest; the Gulf States do not have coordinated

management and have overharvested in excess of 200-percent in recent

years; under one management region, the ASMFC would have reduced or

zero quotas for years subsequent to Gulf overharvests.

NMFS also received several comments opposed to maintaining the

three regions, including: NMFS should either divide quota equally among

regions or have one region since quotas are so low; Gulf of Mexico and

South Atlantic stocks should be managed as one unit.

NMFS received numerous comments from Texas Parks and Wildlife, the

Gulf of Mexico Fishery Management Council, ASMFC, Mississippi

Department of Marine Resources, and members of the general public in

favor of maintaining more than one region. Commenters suggested reasons

for maintaining more than one region, including: the best scientific

evidence available indicates that the Gulf of Mexico and the South

Atlantic stocks are separate; genetic evidence has shown separate

stocks of some species between the Gulf and South Atlantic; shark

management should account for separate stocks and separate the quota

accordingly; blacktip sharks are healthy in the Gulf of Mexico; bycatch

issues are unique to each region; and, moving to one region ignores

stock assessments and the temporal nature of the fishery, which was

identified during the previous amendment.

Response: In the Draft EIS, NMFS proposed merging the status quo's

three regions into one region to simplify quota monitoring and to

prevent derby-style fishing and potential overharvests that could occur

as a result of attempting to allocate smaller quotas to regional and

trimester seasons. The impacts of establishing only one region instead

of three were assessed in the Draft EIS for Amendment 2. The analyses

indicated that the overall economic impacts could be negative in

regions (i.e., North Atlantic) that do not have sharks present in their

waters year-round if the fishery closed early in the year. The

ecological impacts of implementing one region were expected to be

neutral.

Based on public comment, NMFS has decided to implement two regions,

the Gulf of Mexico and the Atlantic, rather than one region as

originally proposed. Maintaining two regions has several advantages,

including: it adheres to the stock assessment for blacktip sharks which

assessed this species separately in the Gulf of Mexico and Atlantic; it

accounts for overharvests that occurred in the Gulf of Mexico and

Atlantic in 2007 more equitably; it allows for unique quotas to be

implemented in each region that account for different species

composition in each region; and it maintains the flexibility to

implement unique regulations in the Gulf of Mexico and Atlantic Ocean.

The 2006 LCS assessment assessed blacktip sharks as two distinct

populations in the Gulf of Mexico and Atlantic. Unique results were

found for each population with the Gulf of Mexico population healthy

and the Atlantic stock unknown. The assessment recommended maintaining

current harvest levels in both regions. NMFS prefers measures

consistent with the stock assessment by maintaining two regions: the

Gulf of Mexico and Atlantic. The blacktip shark was the only species

assessed as distinct, regional populations.

At this time, NMFS does not issue unique permits based on geography

within the Atlantic, Caribbean, and Gulf of Mexico. This type of permit

was not considered during this rulemaking.

Comment 2: NMFS should have one region because, since NMFS went

into regions, we have been going over the quota.

Response: There are several factors that may be the cause of recent

overharvests. These overharvests have likely occurred because of

increased fishing effort, inconsistent reporting on behalf of the

dealers, and the fact that previous years' overharvests are taken off

subsequent years' quotas resulting in smaller regional quotas. As

quotas decrease and effort stays the same, the likelihood of

overharvests increases. The rationale for two regions is provided in

response to Comment 1 directly above and elsewhere in the preamble to

this rulemaking.

Comment 3: NMFS should describe the original reasoning for

establishing the three regions.

Response: The regions were established in regulations implementing

Amendment 1 to the 1999 FMP in 2003 because of spatial differences in

fishery practices, variable catch-per-unit-effort (CPUE) between

regions, and to afford managers the flexibility to adjust regional

quotas to reduce mortality of juvenile and pregnant female sharks.

Comment 4: NMFS should create a separate region for the Caribbean.

Response: The Caribbean is currently managed as part of the South

Atlantic region. This final action includes the Caribbean in the

Atlantic region. Permit data indicate that there are not any commercial

shark fishing permits and only one shark dealer permit in the Caribbean

region. In addition, NMFS is in the process of initiating rulemaking to

address some of the unique aspects of Caribbean fisheries for HMS.

Comment 5: NMFS should change the regions so that the Florida Keys

are entirely in the South Atlantic or entirely in the Gulf of Mexico.

The State of Florida recommends that the existing regions be

maintained, however, both the Gulf and Atlantic coasts of Florida

should be kept in the same region to facilitate improved management and

enforcement.

Response: NMFS implemented separate regions for the Gulf of Mexico

and South Atlantic in Amendment 1 to the 1999 FMP. The existing

boundary between the regions was adopted because it is consistent with

the boundary defined by the Gulf of Mexico and South Atlantic Fishery

Management Councils and by ASMFC. However, since implementing that

boundary, NMFS has consistently considered, for quota monitoring

purposes, any landings in the Florida Keys to be part

[[Page 40677]]

of the Gulf of Mexico region. As such, in this final action and based

on the comments received, NMFS is matching practice with the

regulations, and is redefining the Gulf of Mexico to ensure that catch

near or directly south of the Florida Keys is considered to be within

the Gulf of Mexico region. NMFS does not expect this to change fishing

practices as logbook data indicates that most fishing in the areas

occurs near and within the Florida Keys.

9. Recreational Measures

Comment 1: NMFS should maintain the same standards for recreational

and commercial fisheries. Since the commercial industry reports many

unidentified or unclassified sharks, the commercial industry should be

regulated based on misidentification as well.

Response: The majority of sharks landed commercially are reported

as unclassified by shark dealers, not fishermen. NMFS has implemented

shark identification workshops for shark dealers which are expected to

provide shark dealers with the knowledge and skills to properly

identify the sharks that they purchase. Recreational fishermen

generally do not see sharks as often as commercial fishermen targeting

sharks. Thus, commercial fishermen may be more adept at shark

identification.

Comment 2: The preferred alternative would set a bad precedent in

allowing a fishery that caused the decline in shark populations to

continue on a limited basis, while the public cannot fish for the same

shark species. The commercial fishermen should be allowed to catch the

same shark species as the recreational fishermen. The ASMFC requests

allowing recreational possession/take of all species that may be

harvested by commercial fishermen to keep the shark fishery equitable

to all sectors and help establish identical species groups.

Response: The final action allows recreational permit holders to

possess all non-ridgeback LCS and tiger sharks. These species of sharks

have external characteristics that are easy for recreational anglers to

properly identify. NMFS proposed to add blacktip, spinners, bull, and

finetooth sharks to the list of prohibited shark species in the draft

Amendment 2 to the Consolidated HMS FMP. However, based on public

comment, NMFS decided to allow recreational anglers to land these

sharks. NMFS is allowing recreational anglers to land these species

because of extensive public comment that was received in favor of

allowing recreational anglers to land these species. NMFS is not

authorizing recreational anglers to land sandbar sharks and silky

sharks because recreational anglers may confuse these species with

dusky sharks, which are on the list of prohibited shark species. NMFS

is only allowing participants in the shark research fishery to land

sandbar sharks commercially, thus, precluding the vast majority of

commercial fishermen from landing sandbar sharks.

Silky sharks are authorized for landing in commercial fisheries

because there is a higher likelihood that these sharks may be discarded

dead than if they were landed in recreational fisheries. Moreover,

commercial fishermen are more adept at distinguishing between silky

sharks and sandbar or dusky sharks. Prohibiting silky sharks in

commercial fisheries would result in more significant economic

consequences than prohibiting them in recreational fisheries because

commercial fishermen are allowed to sell the fins and flesh of sharks

that are caught in accordance with applicable regulations. There is not

a significant targeted fishery among recreational or CHB anglers for

spinner sharks, therefore, economic impacts would be less severe among

this group of stakeholders.

Comment 3: The recreational and commercial sectors contribute

nearly equivalently towards mortality of sharks, and reductions in

mortality are absolutely necessary.

Response: NMFS is implementing measures consistent with recent

stock assessments to prevent overfishing and/or to rebuild stocks of

porbeagle, dusky, and sandbar sharks. Concurrently, NMFS has decided

not to allow increased landings of blacktip sharks in the Gulf of

Mexico and Atlantic Ocean. Both commercial and recreational shark

landings are included in stock assessments. While commercial fisheries

generally comprise the majority of shark landings, recreational

landings are also a significant component of overall shark mortality.

Additional measures are necessary to reduce fishing mortality on

several shark species. Modifications to quotas, authorized species, and

retention limits are expected to prevent overfishing and to rebuild

overfished stocks. For example, sandbar sharks will only be landed by a

small number of commercial participants in the shark research fishery

subject to a commercial quota that represents an 80-percent reduction

in landings of sandbar sharks compared to previous years. Recreational

fishermen will not be able to retain sandbar sharks due to their

overfished status and the potential for confusion with prohibited dusky

sharks.

Comment 4: NMFS should consider additional alternatives for the

recreational industry. The alternative suites contain either status quo

or closure of all the recreational fisheries.

Response: The analysis of recreational measures includes more

alternatives than status quo and closing the fishery. Alternative

suites 2 through 4 in the Amendment 2 to the Consolidated HMS FMP would

modify the authorized shark species for recreational fishermen to

include those that can be positively identified. These alternatives

have been modified in the Final Amendment 2 to the Consolidated HMS FMP

to include all non-ridgeback LCS and tiger sharks as authorized species

in recreational shark fisheries.

Comment 5: NMFS should describe the data or analysis used to

justify the proposed authorized species for recreational fisheries.

There is no precedent for ``easily-identifiable.'' NMFS needs to make

an effort to educate anglers before assuming they cannot identify what

they are catching. The State of Georgia commented that NMFS should only

allow sharks without an interdorsal ridge to be landed, thereby

improving identification and reducing confusion. The State of Florida

indicated that sandbar and dusky sharks can easily be differentiated

from many other shark species by the presence of an interdorsal ridge.

Response: NMFS only included shark species that are readily

identifiable by recreational participants who may not interact with a

large number of sharks and therefore may not be able to accurately

identify sharks. NMFS specifically requested public comment on the

proposed list to be authorized for recreational participants and has

modified the final list as a result. The final measures allow any non-

ridgeback LCS, tiger sharks and the current list of pelagic and SCS to

be landed by recreational anglers. The absence of an interdorsal ridge

and/or the distinctive black vertical stripes on tiger sharks should

allow recreational anglers to determine if a shark may be possessed or

not. NMFS intends to disseminate information for recreational permit

holders on HMS regulations and external characteristics for positive

identification of authorized shark species.

Comment 6: The recreational fishery should be subject to 100

percent observer coverage.

Response: Recreational permit holders can request to take an

observer onboard to monitor fishing activities; however, they are not

required to carry observers.

[[Page 40678]]

Observers are placed on commercial fishing vessels as a requirement of

the biological opinion for the shark fishery, to verify logbook and

dealer reports, and to aid managers in understanding the fishery. To

date, the biological opinion issued under the Endangered Species Act

for the shark fishery has not required observer coverage in the

recreational fishery. In addition, recreational fishing vessels are not

required to obtain a U.S. Coast Guard safety inspection, which is a

requirement for placing observers on commercial vessels to ensure that

the vessels have all the required safety equipment. As such, it is

difficult to place observers on recreational vessels.

Comment 7: NMFS received several comments regarding outreach

efforts on shark identification to the recreational sector, including:

NMFS should release an identification guide similar to the Rhode Island

Sea Grant guide; recreational fishermen care about positive

identification; NMFS should send all permit holders the $20 shark

identification book instead of shutting down the fishery; NMFS should

explore identification workshops for recreational fishermen; NMFS needs

to find better ways to educate the public to ensure positive

identification; NMFS should use educational tools to improve

identification; and, recreational fishermen may confuse porbeagle

sharks with shortfin makos.

Response: In 2003, NMFS, in conjunction with Rhode Island Sea

Grant, released a guide to Sharks, Tunas, and Billfishes of the U.S.

Atlantic and Gulf of Mexico. While the guide is currently out of print,

additional copies are being printed and should be available by late

summer. Additional materials containing similar information are

currently available at: http://seagrant.gso.uri.edu/bookstore/index.html.

NMFS is also working on additional outreach materials such as a one

page quick identification guide to improve identification and

understanding of regulations among recreational anglers. These outreach

materials would be either free or available at a low cost to ensure

that all permit holders have access to them. NMFS has recently

implemented shark identification workshops for shark dealers and other

interested members of the public. While not mandatory for recreational

anglers, participants in any HMS sector or the general public may

attend. These workshops provide anglers, dealers, and commercial

fishermen with the ability to properly identify shark carcasses.

Comment 8: NMFS received several comments, including comments from

the State of Florida, the State of Mississippi, the Gulf of Mexico

Fishery Management Council, Texas Parks and Wildlife Department, South

Carolina Department of Natural Resources, and the ASMFC regarding the

shark species that should be included on the list of recreationally

authorized shark species. Comments included: spinner, silky, bull, and

blacktip sharks should be included in the list of species authorized

for recreational anglers because fishers are capable of accurately

identifying shark species; common thresher sharks should stay on the

list of species authorized for recreational anglers; NMFS should not

propose restricting recreational anglers from keeping blacktip sharks

in the Gulf of Mexico if the stock is not overfished or experiencing

overfishing; spinners are not endangered, nor are they depleted; the

status of spinner or bull sharks has not been assessed, therefore,

prohibiting the capture of blacktip and bull sharks would be an overly

risk-averse strategy considering that the status of blacktip sharks (at

least in the Gulf of Mexico) is satisfactory; identification is only a

problem for species that cannot be identified externally; eliminating

the retention of a healthy species of sharks, based on the assumption

that they might be misidentified is subjective and is definitely not

sound fishery management practice; NMFS is mandated under the Magnuson-

Stevens Act (NS 1) to strive for optimum sustainable yield and blacktip

status in the Gulf of Mexico is healthy; NMFS' stated reason is concern

over angler misidentification with sandbar and dusky sharks, however,

these species may be readily identified by their interdorsal ridges;

the list is acceptable, except for oceanic whitetip and hammerhead

sharks. Do not allow the recreational catch of these two species as

scientific studies show they are in decline; allowing the recreational

harvest of blacktip and spinner sharks would therefore have no negative

impact on sandbar and dusky sharks; silky sharks can be confused with

dusky sharks and should remain off the list that recreational anglers

may land; NMFS should not prohibit recreational anglers from landing

bull, blacktip, bull, spinner, and finetooth sharks because these

species represent 37-percent of recreational shark landings off the

State of Florida.

Response: The final action will allow recreational anglers to

possess all non-ridgeback LCS, including blacktip sharks, tiger sharks,

and the currently allowed SCS and pelagic sharks. The presence/absence

of an interdorsal ridge and other morphological characteristics,

coupled with outreach materials on shark identification for

recreational anglers, are likely to reduce the incidence of

misidentification in this fishery. Common threshers would also continue

to be authorized for landing in recreational shark fisheries as these

were not proposed to be prohibited for recreational anglers. NMFS had

originally proposed that blacktip and spinner sharks not be authorized

in recreational fisheries because the morphological differences between

the two sharks are not obvious to anglers who are unfamiliar with

sharks, and because NMFS wanted to ensure that recreational anglers

were only landing sharks that could be positively identified. Based on

extensive public comment in support of being able to land blacktip,

spinner, and bull sharks and the ability of anglers to use the

interdorsal ridge (or lack of the interdorsal ridge) to more positively

identify sharks, the final action allows these sharks to be landed.

Further, NMFS will enhance outreach efforts to ensure that recreational

shark fishermen are positively identifying the sharks they catch.

Comment 9: NMFS should address the fact that recreational anglers

in Delaware, Maryland, and New Jersey are catching lots of pregnant

thresher sharks during certain times of the year.

Response: NMFS is concerned about recreational anglers catching

pregnant female thresher sharks. Recreational fisheries do not have

closed seasons like commercial fisheries; therefore, pregnant females

may be caught and possessed by recreational anglers. However, a minimum

size limit of 54 inches fork-length and a bag limit of one shark

(except bonnethead and Atlantic sharpnose) per vessel per trip should

minimize the potential for negative impacts to populations of common

thresher sharks. Furthermore, this species may be afforded additional

protection by shark tournaments that limit the sharks that may be

landed to those that are actually eligible to win a prize category.

Comment 10: NMFS received a comment suggesting that hammerheads may

need to be prohibited for recreational anglers because the IUCN

considers them threatened and it is not easy to distinguish between

scalloped and great hammerhead sharks.

Response: NMFS is not implementing management measures specific to

scalloped or great hammerhead sharks in recreational fisheries at this

time. NMFS has not yet reviewed stock assessments on these species. A

stock assessment has been completed for

[[Page 40679]]

hammerhead sharks as a dissertation for a graduate student; however,

the assessment has not undergone extensive peer-review which is

necessary prior to NMFS making any decisions about or based on the

assessment.

The IUCN determined that the scalloped hammerhead is ``lower risk,

near threatened'' with an unknown population trend in 1994. In 2001,

the IUCN listed great hammerhead sharks as ``endangered'' with a

decreasing population trend. The recreational bag limit (1 vessel/day)

and minimum size (> 54 inch fork length) should preclude overfishing of

the scalloped hammerhead shark species. NMFS intends to improve

outreach materials available so that recreational anglers would have

the tools necessary to distinguish between scalloped and great

hammerheads.

Comment 11: NMFS should consider the impacts of recreational

fishing for sharks and its implications on populations. Specific

comments received include: shark tournaments since the 1980s are

responsible for a 50-percent reduction in dusky sharks and a 35-percent

reduction in sandbar sharks; the stock assessment does not say that

recreational anglers have a significant impact on the shark stocks; the

recreational angling public has a virtually imperceptible impact on LCS

because recreational anglers practice catch and release and have very

conservative size limitations.

Response: NMFS is aware of the practices of recreational fisheries

and their impacts on shark populations. Recreational data have been

used in past stock assessments for both sandbar and dusky sharks. Thus,

the impact of recreational mortality on shark stocks has been included

in these stock assessments. NMFS has implemented a size and bag limit

for recreational fishermen to limit effort and protect sharks that have

not reached sexual maturity. The Final Amendment 2 to the Consolidated

HMS FMP provides recreational landings by species.

Comment 12: NMFS should increase enforcement of recreational

regulations because participants are not adhering to the 54-inch

minimum size for sharks.

Response: NMFS intends to take steps to improve outreach to

recreational shark anglers to ensure that the public is aware of all

the regulations in place for recreational shark fisheries.

Comment 13: NMFS should not allow shark tournaments that give

monetary prizes. The impacts of such tournaments are unknown and public

perception of them is poor.

Response: HMS tournament participants are required to possess the

necessary HMS permits, to register their tournaments, submit data if

selected, and abide by all HMS and tournament regulations for sharks.

The shark tournaments are subject to the recreational shark b

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