# Atlantic Highly Migratory Species (HMS); Atlantic Shark Management Measures; Republication > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AR8-13961 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** July 15, 2008 - **Citation:** 73 FR 40658 ## Text Part II Department of Commerce ----------------------------------------------------------------------- National Oceanic and Atmospheric Administration ----------------------------------------------------------------------- 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]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 resear [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AR8-13961. Public record. Not legal advice.