[Federal Register Volume 73, Number 136 (Tuesday, July 15, 2008)]
[Rules and Regulations]
[Pages 40658-40713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: R8-13961]



[[Page 40657]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 600 and 635



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

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 0612242866-8619-02]
RIN 0648-AU89


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

    Editorial Note: Federal Register rule document E8-13961, 
originally published at pages 35778 to 35833 in the issue of 
Tuesday, June 24, 2008, included several pages of duplicated text 
and deleted material. This document is being republished in its 
entirety.

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

ACTION: Final rule; fishing season notification.

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SUMMARY: This final rule implements the management measures described 
in Final Amendment 2 to the Atlantic HMS Fishery Management Plan (FMP). 
These management measures are designed to rebuild overfished species 
and prevent overfishing of Atlantic sharks. These measures include, but 
are not limited to, reductions in the commercial quotas, adjustments to 
commercial retention limits, establishment of a shark research fishery, 
a requirement for commercial vessels to maintain all fins on the shark 
carcasses through offloading, the establishment of two regional quotas 
for non-sandbar large coastal sharks (LCS), the establishment of one 
annual season for commercial shark fishing instead of trimesters, 
changes in reporting requirements for dealers (including swordfish and 
tuna dealers), the establishment of additional time/area closures for 
bottom longline (BLL) fisheries, and changes to the authorized species 
for recreational fisheries. This rule also establishes the 2008 
commercial quota for all Atlantic shark species groups. These changes 
affect all commercial and recreational shark fishermen and shark 
dealers on the Atlantic Coast.

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

ADDRESSES: For copies of Final Amendment 2 to the Highly Migratory 
Species Fishery Management Plan, the Small Entity Compliance Guide, or 
other related documents, please write to the Highly Migratory Species 
Management Division, 1315 East-West Highway, Silver Spring, MD 20910, 
or call at (301) 713-2347 or fax to (301)713-1917. Copies are also 
available on the HMS website at http://www.nmfs.noaa.gov/sfa/hms/.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the Highly Migratory Species Management 
Division at (301) 713-2347 or by fax to (301) 713-1917 and by e-mail to 
<a href="/cdn-cgi/l/email-protection#430722352a271c112c3037282631032c2e216d262c336d242c35"><span class="__cf_email__" data-cfemail="c682a7b0afa29994a9b5b2ada3b486a9aba4e8a3a9b6e8a1a9b0">[email protected]</span></a> or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Michael Clark, Karyl Brewster-Geisz, 
or LeAnn Southward Hogan at 301-713-2347 or by fax at 301-713-1917; or 
Jackie Wilson at 240-338-3936.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic shark fisheries are managed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The Consolidated HMS FMP is implemented by regulations at 
50 CFR part 635.
    NMFS announced its intent to prepare an environmental impact 
statement (EIS) on November 7, 2006 (71 FR 65086), and held seven 
scoping meetings in January 2007 (72 FR 123, January 3, 2007). As 
described in the notice of intent, based on the results of the 2005 
Canadian porbeagle shark stock assessment, the 2006 dusky shark stock 
assessment, and the 2005/2006 LCS stock assessment, NMFS declared the 
current status of the LCS complex as unknown, sandbar sharks as 
overfished with overfishing occurring, the Gulf of Mexico blacktip 
shark population as not overfished with overfishing not occurring, the 
Atlantic blacktip shark population as unknown, the dusky shark as 
overfished with overfishing occurring, and porbeagle sharks as 
overfished with overfishing not occurring. Where there are overfished/ 
overfishing determinations, under the Magnuson-Stevens Act, NMFS is 
required to develop management measures to rebuild overfished shark 
stocks and prevent overfishing.
    In March 2007, NMFS presented a predraft of the Amendment 2 to the 
HMS Advisory Panel (72 FR 7860, February 21, 2007). Based in part on 
the comments received during scoping and from the HMS Advisory Panel, 
on July 27, 2007, NMFS developed further and then released the draft 
Amendment 2 to the Consolidated HMS FMP and the associated proposed 
rule (72 FR 41325; 72 FR 41392). The public comment period was 
originally scheduled to end on October 10, 2007; however, it was 
subsequently extended (72 FR 56330, October 3, 2007) and reopened until 
December 17, 2007 (72 FR 64186, November 15, 2007), to provide the 
Regional Fishery Management Councils, the Interstate Marine Fisheries 
Commissions, and the public additional opportunity to submit comments. 
In addition to the written comments submitted, the public verbally 
commented on the proposed rule at five Regional Fishery Management 
Council meetings (New England, Mid-Atlantic, South Atlantic, Gulf of 
Mexico, and Caribbean), an Atlantic States Marine Fisheries Commission 
meeting, ten public hearings, and one HMS Advisory Panel meeting. The 
summary of the comments received and NMFS' responses are provided 
below. Based on these public comments, NMFS re-evaluated the preferred 
alternatives identified in the draft Amendment 2, made changes as 
outlined in Final Amendment 2, and now releases its final rule as 
modified after considering public comment.
    Consistent with the Consolidated HMS FMP objectives, the Magnuson-
Stevens Act, and other applicable law, the objectives for this final 
rule are to: (1) implement rebuilding plans for sandbar, dusky, and 
porbeagle sharks; (2) provide an opportunity for the sustainable 
harvest of blacktip and other sharks, as appropriate; (3) prevent 
overfishing of Atlantic sharks; (4) analyze BLL time/area closures and 
take necessary action to maintain or modify the closures, as 
appropriate; and (5) improve, to the extent practicable, data 
collections or data collection programs.
    The rebuilding plans in Final Amendment 2 to the Consolidated HMS 
FMP considers the recommendations in the stock assessments to be the 
best available scientific information on the status of the species and 
therefore, reflects those recommendations. This includes NMFS 
establishing rebuilding time periods that are as short as possible, 
taking into account the status and biology of the stocks and needs of 
the fishing communities according to National Standard (NS) 1 
guidelines.
    The 2005/2006 stock assessment for the sandbar shark assumed that 
sandbar shark fishing mortality from 2005 to 2007 would be maintained 
at levels similar to 2004 (the last year of data used in the stock 
assessment was from 2004) and that there would be a constant total 
allowable catch (TAC) between 2008 and 2070. Using these assumptions, 
the projections indicated that sandbar sharks would have a 70-percent 
probability of rebuilding by 2070 with a TAC of 220 mt whole

[[Page 40659]]

weight (ww) (158 mt dressed weight (dw))/year and a 50-percent 
probability of rebuilding by 2070 with a TAC of 240 mt ww (172 mt dw)/
year. As described in Amendment 2, NMFS used the 70-percent probability 
of rebuilding to ensure that the intended results of a management 
action are actually realized given the life history traits of sandbar 
sharks.
    Under the rebuilding plan, sandbar sharks are separated from the 
LCS complex, and the base commercial sandbar shark quota is established 
at 116.6 mt dw/year, which results in a total sandbar shark TAC of 
158.3 mt dw (220 mt ww) once other sources of sandbar sharks mortality 
are included. For the first five years of this rebuilding plan (through 
2012), to account for 2007 overharvests, the base commercial quota is 
reduced to 87.9 mt dw. The adjusted base quota through 2012 includes 
the amount of quota that would have been available in the 1\st\ season 
of 2008 had NMFS not closed the fishery during that time. In the final 
rule for the 1\st\ season of 2008, NMFS calculated that 78 mt dw 
(171,959 lb dw) would have been available (November 29, 2007, 72 FR 
67580). However, based on updates to the reported landings, NMFS 
adjusted the 78 mt dw estimate down to 66.2 mt dw (145,944 lb dw). The 
actual commercial quota available in any particular year may fluctuate 
based on overharvests and will be published via appropriate rulemaking 
in the Federal Register.
    Projections in the dusky shark stock assessment indicated that with 
the age-structured production model (i.e., baseline scenario), dusky 
sharks could be rebuilt with a 70-percent probability by the year 2400. 
Other projections from the three other modeling approaches indicate 
that rebuilding of dusky sharks will take between 100-400 years. As 
such, in this final rule, NMFS assumes that the rebuilding timeframe 
that would be as short as possible for dusky sharks would be at least 
100 years. The harvest of dusky sharks has been prohibited since 2000. 
Despite this fact, dusky sharks are still overfished with overfishing 
occurring. NMFS believes this is at least partly due to the fact that 
they are caught as bycatch, predominantly in longline fisheries. Many 
of the final actions in this rule, such as establishing a shark 
research fishery with 100 percent observer coverage and decreasing the 
retention limits of non-sandbar large coastal sharks on all fishing 
vessels, should reduce dusky shark bycatch. This reduction in bycatch 
should aid in rebuilding and in collecting additional information to 
evaluate dusky shark status and catches. In the research fishery, if 
dusky shark catch is high by a particular vessel or in a particular 
region, NMFS could stop that vessel's trip(s) or stop all research 
trips in that region and/or time. Additionally, if NMFS decides, after 
reviewing the data from a particular year, NMFS decides that the catch 
was too high in the research fishery, NMFS could adjust the research 
protocols and reduce effort or modify gear requirements, as needed. For 
the non-research fishery trips, NMFS could either reduce the retention 
limit in an attempt to reduce effort or work with the appropriate 
Regional Fishery Management Council to reduce bycatch mortality in 
certain fisheries, or consider other measures, as appropriate.
    A stock assessment was conducted for North Atlantic porbeagle 
sharks in 2005 by the Canadian Department of Fisheries and Oceans. This 
assessment was reviewed by NMFS scientists who determined it used 
appropriate methodologies and all available fishery and biological data 
including U.S. landings and research. As a result of this review, NMFS 
determined that the assessment constituted the best available science. 
NMFS also determined that because the stock assessed is a unit stock 
that extends into U.S. waters, the assessment and its recommendations 
were appropriate for use in U.S. domestic management. The assessment 
recommended that there is a 70-percent probability of rebuilding in 100 
years if fishing mortality levels are maintained at or below 0.04 
(current fishing mortality level). Considering this science, NMFS 
believes that the rebuilding timeframe that is as short as possible is 
100 years, which will allow a TAC of 11.3 mt dw based on current 
commercial landings of 1.7 mt dw, current commercial discards of 9.5 mt 
dw, and current recreational landings of 0.1 mt dw. This results in a 
commercial porbeagle shark quota of 1.7 mt dw.
    This final rule does not contain detailed information regarding the 
management history of Atlantic sharks or the alternatives considered. 
Those issues are discussed in the preamble of the proposed rule. 
Additional information can also be found in the Final Amendment 2 to 
the Consolidated HMS FMP available from NMFS (see ADDRESSES). This 
final rule contains responses to comments received during the public 
comment period and a description of changes to the rule between 
proposed and final. The description of the changes to the proposed rule 
can be found after the response to comment section.

Response to Comments

    A large number of individuals and groups provided both written and 
verbal comments on the proposed rule during the 143-day comment period, 
10 public hearings, 5 Regional Fishery Management Council meetings, one 
Interstate Marine Fisheries Commission meeting, and one HMS Advisory 
Panel meeting. These comments resulted in numerous changes. The 
comments are summarized below together with NMFS' responses. All of the 
comments are grouped together by major issue. There are 16 major 
issues: Quotas/Species Complexes; Porbeagle Sharks as Prohibited; 
Retention Limits; Fins on Requirement; Time Area Closures; Reporting; 
Seasons; Regions; Recreational Measures; Stock Assessment and Fishery 
Evaluation (SAFE) Report and Stock Assessment Frequency; Research 
Fishery/Preferred Alternative; Comments on Other Alternative Suites and 
Management Measures; Science; National Standards; Economic Impacts; and 
Miscellaneous. The comments are numbered consecutively, starting with 
1, at the beginning of each issue.

1. Quotas/Species Complexes

a. Quotas
    Comment 1: The National Marine Fisheries Service (NMFS) should 
consider reducing the fishing mortality for overfished sandbar sharks.
    Response: NMFS is taking steps to reduce fishing mortality for 
overfished sandbar sharks. In particular, NMFS is reducing the base 
commercial quota for sandbar sharks to 116.6 mt dw. This amount is 
further reduced to 87.9 mt dw from 2008 through 2012 to account for 
2007 overharvests. This is more than an 80-percent reduction in sandbar 
shark landings compared to the status quo (594.4 mt dw). This base 
commercial quota of 116.6 mt dw (which is then adjusted for 
overharvest) combined with estimated discards both within and outside 
the commercial shark fishery (e.g., including other commercial 
fisheries and recreational fisheries) is anticipated to keep sandbar 
mortality below the recommended total allowable catch (TAC) of 158.3 mt 
dw, which gives this stock a 70-percent probability of rebuilding by 
2070, as described in Chapter one of Amendment 2 to the Consolidated 
HMS FMP.
    Comment 2: NMFS should have considered Individual Transferable 
Quotas (ITQs) for the shark fishery in this rulemaking. The quota is 
just too small for the number of participants. Individual Fishing 
Quotas (IFQs) or ITQs would accomplish the same

[[Page 40660]]

objectives as the research fishery. ITQs/IFQs are the fairest, 
simplest, most rational method for this dilemma. NMFS should switch to 
an ITQ system with no trip limit, because a lot of times fishermen do 
not weigh the sharks. Rather, fishermen know their legal trip limit 
based on how they fill their fish boxes. An ITQ system with no trip 
limit would result in fewer dead discards.
    Response: ITQs may be beneficial in many fisheries, and NMFS may 
consider developing an IFQ or Limited Access Privilege Programs (LAPPs) 
for sharks as well as other HMS in the future. NMFS did not consider 
ITQs to be a reasonable alternative for this rulemaking given the 
strict 1-year timeline to which NMFS must adhere in setting up a system 
for rebuilding a fishery under the Magnuson-Stevens Act. Furthermore, 
overfishing of sharks would have continued during an extensive ITQ 
development phase, which would have been inconsistent with NMFS' 
mandate in section 304(e) of the Magnuson-Stevens Act to rebuild 
overfished stocks. The Magnuson-Stevens Act states that for stocks 
identified as overfished or having overfishing occurring, the Secretary 
of Commerce or the relevant Council, as appropriate, shall prepare a 
fishery management plan, plan amendment, or proposed regulations for 
the fishery to end overfishing in the fishery and rebuild affected 
stocks within one year of that determination. NMFS satisfied that 
timing provision: sandbar sharks and dusky sharks were determined to be 
overfished with overfishing occurring on November 7, 2006 (71 FR 
65086), and NMFS published Draft Amendment 2 to the Consolidated HMS 
FMP on July 27, 2007 (72 FR 41325). NMFS notes that the 2006 Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act amended 
section 304(e) to include a two-year timing provision for preparation 
and implementation of actions, and the new provision will be effective 
July 12, 2009.
    Given section 304 and other timing considerations for this action, 
NMFS did not consider an ITQ system as a reasonable alternative, as it 
takes several years to properly design an ITQ system that appropriately 
considers the views of all stakeholders and then to implement such a 
system. The general requirements for ITQs or LAPPs were included in the 
2007 reauthorized Magnuson-Stevens Act (section 303A). Overall, two 
basic things must be done when implementing a LAPP system: 1) determine 
who would receive and who can hold the harvest privileges; and 2) 
define the nature of the harvest privileges. In addition, NMFS is 
currently establishing referenda requirements for LAPPs (for instance, 
a particular allocation scheme must be approved by a given level of the 
industry). In addition, unlike the research fishery, which would allow 
an individual fisherman to target sharks on a yearly basis, allocation 
under an ITQ, IFQ, or LAPP would be for a much longer time period. 
Because fishermen would have these allocations for a long time, NMFS 
traditionally works extensively with all stakeholders to devise the 
best allocation scheme possible for these type of permit programs 
through workshops and other meetings.
    Comment 3: NMFS should reconsider how it calculated the non-sandbar 
Large Coastal Shark (LCS) quota. The non-sandbar LCS quota is low 
because fishermen were not targeting non-sandbar LCS in the past. They 
were targeting sandbar sharks. If fishermen had been targeting non-
sandbar LCS, historical landings would be much higher, and there would 
be a larger non-sandbar LCS quota than is currently proposed.
    Response: NMFS is implementing a larger non-sandbar LCS base quota 
of 627.8 mt dw outside the shark research fishery based on dealer 
reports rather than logbooks, as originally proposed. By using dealer 
reports, NMFS included in its calculations landings outside of NMFS' 
jurisdiction (e.g., state landings) and thus maintained consistency in 
establishing the quota with data used in the stock assessments.
    In using historical landings reported by shark dealers to calculate 
the non-sandbar LCS quota, NMFS follows the recommendations of the 
stock assessments for Gulf of Mexico and Atlantic blacktip shark 
populations. These stock assessments recommended keeping catch levels 
the same in the Atlantic region and not increasing catch levels in the 
Gulf of Mexico region. Basing quotas on dealer reports would cap 
fishing effort at historical levels and keep stocks in the Gulf of 
Mexico healthy and stocks in the Atlantic from declining. Setting 
quotas higher than these levels could have detrimental effects on shark 
stocks.
    Comment 4: NMFS should consider allocating the entire sandbar quota 
to fishermen participating in the research fishery because giving a few 
sandbar sharks to those outside of the research fishery would not be 
worth it. NMFS should also consider only allowing fishermen with 
directed shark permits to participate in the shark fishery.
    Response: NMFS considered the option discussed in the comment. 
Under the final action, NMFS is allocating the entire 87.9 mt dw 
adjusted sandbar quota to the shark research fishery. NMFS will publish 
a Federal Register notice each year, inviting applications from permit 
holders who are willing to participate in the shark research fishery. 
Within that notice, NMFS will publish the selection criteria that NMFS 
would use to select participants for the research fishery. For example, 
depending on the research objectives for a given year, NMFS may 
consider applications from a variety of permit holders, including 
directed, incidental, and charter/headboat (CHB) permit holders, for 
participation in the shark research fishery.
    Comment 5: NMFS should acknowledge that the proposed reduction in 
quotas is the end of the directed shark fishery. NMFS should ensure 
that sharks are not discarded and accommodate incidental landings 
whenever possible.
    Response: The final actions will likely end the directed shark 
fishery for certain species. With the reductions in the sandbar quota, 
the reduction in retention limits, and the prohibition on retaining 
sandbar sharks outside the research fishery, fishermen with directed 
shark permits will likely no longer target LCS outside of the research 
fishery. As described above, these modifications to quotas and 
retention limits are necessary to end overfishing and rebuild 
overfished stocks.
    However, as suggested by the commenter, NMFS tried to accommodate 
incidental landings in other fisheries. Under the final action, 
fishermen can still retain some non-sandbar LCS while they fish for 
other species (e.g., reef fish and snapper-grouper). A fisherman with a 
directed shark permit could harvest 33 non-sandbar LCS per trip and a 
fisherman with an incidental shark permit could land 3 non-sandbar LCS 
per trip. The trip limit for directed shark permit holders is based, in 
part, on BLL observer program data from 2005 to 2007. The observer data 
showed that fishermen with directed shark permits fishing for snapper-
grouper kept, on average, 12 sharks per trip. A 33 non-sandbar trip 
limit should allow fishermen with directed permits to retain sharks 
(besides sandbar sharks) they catch while targeting other species and 
should minimize discards. The incidental trip limit is based on what 
fishermen with incidental permits currently retain under the status 
quo.
    NMFS also considered whether limiting sandbar harvest to the 
research fishery would increase dead discards or if NMFS needed to 
include a trip limit for sandbar sharks. Observer data

[[Page 40661]]

indicate that fishermen targeting species other than sharks (i.e., 
snapper-grouper) catch, on average, one sandbar shark per trip. Given 
that sets on trips not targeting sharks are typically shorter in length 
and duration than sets on trips targeting sharks, it is anticipated 
that sandbar sharks would remain on the gear for less time than on 
trips targeting shark species, and, thus, would have a greater 
likelihood of being released alive. Therefore, the current trip limits 
are not anticipated to result in increased dead discards.
    Comment 6: NMFS needs to take a more a precautionary approach in 
regard to hammerheads, common thresher sharks, and blacktip sharks in 
the Atlantic region, which have an unknown stock status; NMFS should 
follow international organizations such as the International Union for 
the Conservation of Nature (IUCN), and pay attention to red listed 
shark species such as hammerheads, dusky, and sand tiger sharks, which 
would likely be taken (under the quota or as bycatch) in the fishery 
and are particularly depleted. Considering these factors, as well as 
NMFS' poor record for shark recovery to date, NMFS should close the 
commercial shark fishery; NMFS should put a moratorium on LCS fishing 
in the Atlantic until the stock status of Atlantic blacktip sharks is 
known; NMFS should only allow fishing for Atlantic blacktip sharks 
within scientifically derived limits when the population is capable of 
supporting such exploitation and bycatch of prohibited species is 
demonstrated to be insignificant.
    Response: NMFS is implementing management measures based on the 
latest NMFS-conducted stock assessments for blacktip, dusky, and 
sandbar sharks, and the LCS complex, which represent the best available 
peer reviewed science. NMFS is also implementing management measures 
based on the latest Canadian-based stock assessment for porbeagle 
sharks, which NMFS determined represents the best available science. 
The management measures in this final rule are consistent with the 
rebuilding targets established in these shark stock assessments, and 
the rebuilding time periods are as short as possible, taking into 
account the status and biology of the stocks and needs of the fishing 
communities according to NS 1 guidelines.
    In general, shark stock status determinations are based on NMFS-
conducted stock assessments. NMFS uses the Southeast Data, Assessment, 
and Review (SEDAR) process for shark stock assessments, which is open 
to the public and uses the Center for Independent Experts (CIE) to 
provide independent peer reviews of assessment results.
    These assessments consider landings by other countries such as 
Mexico and Canada but contain mostly U.S. data. For shark species that 
may have substantial landings outside of the United States (e.g., blue 
shark), NMFS also relies on the results of the Standing Committee for 
Research and Statistics (SCRS) of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT). These stock assessments are 
conducted with scientists and data from throughout the world, including 
U.S. scientists and data. In the case of porbeagle sharks, SCRS 
determined that ICCAT did not need to conduct a stock assessment since 
Canada had already conducted one. As such, NMFS scientists reviewed the 
Canadian stock assessment and determined it was appropriate for use in 
domestic management.
    To date, NMFS has not relied on outside organizations, such as the 
IUCN, when making stock status determinations. This is due to the 
unknown nature of the data and peer review methodology applied by these 
outside groups.
    The latest blacktip shark assessments recommended not increasing 
catch levels in the Gulf of Mexico and keeping catch levels at 
historical levels in the Atlantic. To account for differences in catch 
between the Gulf of Mexico and Atlantic region and to follow 
recommendations from the blacktip shark stock assessments, NMFS is 
implementing a Gulf of Mexico non-sandbar LCS regional quota and an 
Atlantic non-sandbar LCS regional quota based on historical landings 
from HMS shark dealer reports from 2003 to 2005. Based on dealer 
reports, the Atlantic region has a lower non-sandbar LCS base quota 
(188.34 mt dw) than the Gulf of Mexico region (439.5 mt dw). Since the 
Atlantic blacktip shark stock assessment recommended not changing 
landings and did not recommend prohibiting the harvest of blacktip 
sharks, NMFS is implementing this regional quota based on historical 
landings in the Atlantic region.
    Unlike the sandbar shark assessment, which recommended a specific 
TAC, or the blacktip stock assessments, which recommended specific 
catch levels, the dusky shark assessment did not give specific 
mortality targets. Dusky sharks have been on the prohibited species 
list in 2000; however, there continue to be dusky shark discards in 
other fisheries. NMFS estimated reduction in dusky shark mortality as a 
result of sandbar shark and non-sandbar LCS management actions. Based 
on the reduced quotas and trip limits, NMFS estimates that dusky shark 
mortality will likely be reduced from 33.1 mt dw to 9.1 mt dw per year. 
This is a 73-percent reduction in mortality compared to the status quo, 
which should help rebuild the dusky shark population and afford dusky 
sharks more protection compared to the status quo.
    Finally, NMFS is aware of a separate external hammerhead shark 
stock assessment that is being conducted, but not aware of separate 
stock assessments for common threshers or sand tiger sharks. Conducting 
stock assessments at a species specific level is difficult due to the 
lack of species-specific information collected to conduct stock 
assessments for each species of sharks involved in commercial shark 
fisheries. Therefore, species such as hammerhead sharks and common 
threshers are managed within species complexes. While NMFS is not 
implementing management measures for hammerhead sharks, it is likely 
that hammerhead shark landings will be reduced due to the reduced non-
sandbar LCS quota and retention limits.
    NMFS has not considered specific management actions for common 
threshers in this rulemaking, but an annual quota is in place for the 
pelagic shark complex (488 mt dw), and underharvests of this complex 
are not applied to the next season. NMFS may consider additional 
management actions for this species, as warranted, in the future.
    For sand tiger sharks, based on their high vulnerability to 
exploitation and to discourage any future directed fisheries, NMFS 
included these sharks on the prohibited species list in 1997. 
Additionally, as with the dusky sharks, a reduction in discards based 
on the sandbar shark and non-sandbar LCS quotas and management actions 
taken in this rulemaking should afford additional protection for sand 
tiger sharks.
    Comment 7: NMFS should include landings by states, such as 
Louisiana and Alabama, against the Federal shark quota.
    Response: NMFS counts both Federal and state landings of sharks 
against the Federal shark quota since sharks in both state and Federal 
waters contribute to the stocks that are federally managed. This 
approach is consistent with that used by NMFS to manage other Federal 
fisheries such as reef fish and snapper grouper.
    Comment 8: NMFS should consider species-specific quotas. NMFS 
should begin with blacktip sharks, since an assessment was done for 
them in both

[[Page 40662]]

the Gulf of Mexico and Atlantic. This is because of variation in life 
history parameters, different intrinsic rates of increase, and 
different catch and abundance data for all species listed in each 
complex. Managing sharks as a complex is inappropriate.
    Response: NMFS is moving towards species-specific management, 
including species-specific quotas. However, for some species, NMFS has 
only limited data which requires management to be based on species 
within a complex. Based on the latest stock assessment, NMFS has 
removed sandbar sharks from the LCS complex, resulting in a sandbar 
shark quota, and a non-sandbar LCS quota, comprised of blacktip, bull, 
smooth hammerhead, scalloped hammerhead, smooth hammerhead, lemon, 
nurse, silky, tiger, and spinner sharks. The sandbar shark assessment 
gave a specific TAC for sandbar sharks, which resulted in NMFS 
accounting for sandbar shark mortality in all fisheries (both 
commercial and recreational sectors) before establishing a base 
commercial quota of 116.6 mt dw. In order to monitor this quota, NMFS 
removed sandbar sharks from the LCS complex and set a separate 
commercial quota for this species.
    However, while separate blacktip shark assessments were conducted, 
NMFS has decided not to implement separate blacktip shark quotas 
because the shark fishery is a multi-species fishery. The majority of 
sharks harvested in the directed shark fishery, other than sandbar 
sharks, are blacktip sharks. For instance, 82-percent of sharks caught 
in the directed shark fishery in the Gulf of Mexico region are blacktip 
sharks (not including sandbar sharks). The next highest landings were 
for hammerhead sharks at 7-percent and bull sharks at 5-percent. The 
South Atlantic region had the same pattern with the highest percentage 
of landings, apart from sandbar sharks, for blacktip sharks at 72-
percent followed by hammerhead sharks at 14-percent, and then bull 
sharks at 4-percent. Because NMFS did not have species-specific 
assessments on other species besides blacktip and sandbar sharks, and 
because the majority of the LCS catch, not including sandbar sharks, is 
blacktip sharks, NMFS created a non-sandbar LCS complex with its own 
quota. To account for differences in catch between the Gulf of Mexico 
and Atlantic region, NMFS is implementing a regional Gulf of Mexico 
non-sandbar LCS quota and an Atlantic non-sandbar LCS quota.
    Comment 9: NMFS should split the sandbar quota between research and 
bycatch. This could be a ``phased-in'' quota system where \2/3\ of the 
quota in the first year would be allocated toward incidental landings 
and \1/3\ would be allocated toward research.
    Response: In establishing the base commercial quota of 116 mt dw, 
NMFS allocated approximately 42 mt dw to account for recreational 
harvest and dead discards. A further allocation of \1/3\ of the base 
commercial quota for the research fishery in the first year would only 
result in 38.8 mt dw for research. In addition, due to overharvests in 
2007 (see Appendix C in the FEIS for more details), NMFS is reducing 
the base commercial sandbar shark quota to 87.9 mt dw annually for five 
years. A \1/3\ allocation of this reduced base commercial quota would 
only leave 29.3 mt dw of sandbar quota available for research. One 
third of either the base annual quota or the adjusted five year quota 
would not provide enough trips or observations to produce statistically 
sound data on the several research questions NMFS intends to address, 
especially given that NMFS has already accounted for dead discards and 
recreational harvest in setting the base commercial quota. In addition, 
a \2/3\ allocation of the sandbar quota would only allow fishermen 
(directed or incidental) to retain a few sandbar sharks (less than what 
was proposed under alternative suite 3, where all permit holders would 
have been allowed to retain sandbar sharks). Thus, splitting the quota 
into thirds would not provide benefits to the fishery or to the 
research needed for future stock assessments. However, as funds are 
available, NMFS would have scientific observers on vessels fishing 
outside the research fishery that would monitor discards of sandbar 
sharks. If large number of sandbar dead discards occurred in the 
fishery, resulting in mortality above the recommended TAC, NMFS would 
take management action, as necessary. Additionally, NMFS will monitor 
landings of sandbar shark by state fishermen and deduct those landings 
from the base commercial quota, as needed.
    Comment 10: NMFS should not use the maximum rebuilding time period 
(70 years) allowed under the law but should use a more precautionary 
approach. NMFS should not strive for maximum sustainable yield (MSY) 
for blacktip and sandbar sharks. The proposed sandbar shark quota of 
116 metric tons (mt) is too high to ensure recovery of this population 
and NMFS should consider adopting an even lower final number.
    Response: The 2005/2006 stock assessment for sandbar sharks 
discussed three rebuilding scenarios, including: a rebuilding timeframe 
if no fishing were allowed; a TAC corresponding to a 50-percent 
probability of rebuilding by 2070; and a TAC corresponding to a 70-
percent probability of rebuilding by 2070. Under no fishing, the stock 
assessment estimated that sandbar sharks would rebuild in 38 years. 
Under the NS 1 guidelines, if a species requires more than 10 years to 
rebuild, even in the absence of fishing mortality, then the specified 
time period for rebuilding may be adjusted upward by one mean 
generation time. Thus, NMFS added a generation time (28 years) to the 
target year for rebuilding sandbar sharks. The target year is the 
number of years it would take to rebuild the species in the absence of 
fishing, or 38 years for sandbar sharks. NMFS determined that the 
rebuilding time that would be as short as possible for sandbar sharks 
would be 66 years, taking into account the status and biology of the 
species and severe economic consequences on fishing communities. This 
would allow sandbar sharks to rebuild by 2070 given a rebuilding start 
year of 2004, the last year of the time series of data used in the 
2005/2006 sandbar shark stock assessment. Since sharks are caught in 
multiple fisheries, to meet the rebuilding timeframe under a no fishing 
scenario, NMFS would have to implement restrictions in multiple 
fisheries to eliminate mortality, such as entirely shutting down 
multiple fisheries to prevent bycatch. If NMFS were to shut down the 
shark fishery completely, such action would likely have severe economic 
impacts on the fishing community and it would likely result in 
difficulties for fisheries in which Councils recommend management 
measures as well as Commission-managed fisheries, which often catch 
sharks as bycatch. In addition, prohibiting all fishing for sharks 
would impact NMFS' ability to do collect data for future management.
    The recommended TAC associated with a 50-percent probability of 
rebuilding by 2070 is 172.7 mt dw (or 240 mt whole weight (ww)). 
However, given the life history of sharks including slow growth, late 
age of maturity, and relatively small litter sizes, as described in the 
1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks 
(1999 FMP), a 50-percent probability of success is minimally acceptable 
for sharks. Thus, NMFS adopted the TAC corresponding to a 70-percent 
probability of rebuilding by 2070, or 158.3 mt dw (220 mt ww). This 
timeframe is consistent with the Magnuson-Stevens Act, the NS 1 
guidelines at Sec.  600.310, the 2006 Consolidated HMS FMP (which

[[Page 40663]]

includes the rebuilding requirements of the 1999 FMP), and the other 
national standards that require NMFS to consider, among other things, 
the economic and social impacts of the fishery.
b. Discard Issues
    Comment 11: NMFS should consider sandbar shark discards outside the 
research fishery. NMFS should also be concerned with derby-style 
fishing with the reduced quotas and retention limits.
    Response: NMFS considered sandbar shark discards outside the shark 
research fishery when it established the base sandbar shark quota (see 
Table A.1 in Appendix A of the Final EIS). In doing so, NMFS set a 
commercial sandbar shark quota that, in addition to considering 
discards in other fisheries outside the shark research fishery, should 
keep sandbar shark mortality below the recommended TAC of 158.3 mt dw 
each year. In order to deter derby-style fishing outside the shark 
research fishery, NMFS reduced the trip limit for directed shark permit 
holders to 33 non-sandbar LCS per trip. This trip limit should allow 
the LCS fishery to stay open longer than it has in the past while also 
minimizing, to the extent practicable, regulatory discards and derby-
style fishing.
    Comment 12: NMFS should acknowledge that dusky shark bycatch will 
be an issue both inside and outside the research fishery. Seventy 
percent of dusky sharks are dead at haulback.
    Response: Dusky sharks caught as bycatch under the new management 
measures would result in dead discards to the same extent as current 
levels. Currently, most of the dusky shark discards occur within the 
directed shark fishery (on average, 24.5 mt dw per year), with a total 
of 33.2 mt dw of dusky sharks discarded on average per year. Under the 
final action, there would no longer be a directed LCS fishery. For a 
limited number of trips, the few vessels that qualify for participation 
in the shark research fishery will be allowed to direct on LCS. 
Depending on the number of trips taken within the research fishery, 
NMFS estimates that yearly dusky shark discards could be between 0.5 mt 
dw (that would be caught during 64 trips associated with the adjusted 
sandbar shark quota) and 0.6 mt dw (that would be caught during 92 
trips associated with the base sandbar shark quota), with a total of 
9.1 mt dw of dusky shark discards across all fisheries. This is a 73-
percent reduction in dusky shark discards compared to the status quo.
    Comment 13: NMFS should evaluate if highgrading will be an issue 
outside the research fishery.
    Response: Under the final action, highgrading, or the discarding of 
smaller, less valuable animals and retaining only the most valuable 
animals to fill a retention limit, is expressly prohibited. However, 
because fishermen aim to have the highest profits per trip, highgrading 
can be an issue whenever trip limits are implemented.
    Based on the latest shark stock assessments, NMFS is implementing a 
reduced shark trip limit from 4,000 lb of LCS per trip to 33 non-
sandbar LCS per trip for directed permit holders operating outside the 
research fishery. NMFS expects that this reduced trip limit 
(approximately one quarter of what a directed fisherman lands on a 
shark trip under the status quo) and the prohibition on the retention 
of sandbar sharks will result in fishermen with directed shark permits 
no longer targeting LCS. Additionally, this trip limit is higher than 
the average number of sharks shark fishermen currently retain when 
targeting other species (i.e., 12 sharks from non-targeted trips). 
Thus, NMFS assumes that the reduced trip limit will allow fishermen 
with directed shark permits to keep all incidentally caught non-sandbar 
LCS as they target non-sharks species. Because fishermen will likely be 
allowed to keep all sharks caught when fishing for other species, the 
reduced trip limit should reduce the incentive to engage in 
highgrading.
c. Species Complexes
    Comment 14: NMFS should reconsider the use of the term ``non-
sandbar LCS.'' This title is awkward and might confuse some fishers. 
The use of ``LCS'' or ``LCS (other than sandbars)'' is recommended 
following the same logic as when referring to ``pelagic sharks'' (which 
otherwise would be referred to as non-blue or porbeagle pelagic 
sharks.)
    Response: NMFS considered several names for the group of LCS that 
does not include sandbar sharks. NMFS felt keeping the title ``LCS'' 
for the new complex may be confusing with the ``old'' LCS complex 
(i.e., the complex prior to the implementation of the amendment). NMFS 
chose ``non-sandbar LCS'' because it was the most explicit description 
of the new complex: the LCS complex with sandbar sharks removed.
    Comment 15: NMFS is taking sandbars out of the LCS complex. Where 
did NMFS get the authority to remove a given species from a complex?
    Response: NMFS has the authority under the Magnuson-Stevens Act to 
manage all coastal sharks. As part of this authority, NMFS created the 
complexes in 1993 to aid in managing the fishery. Thus, NMFS may set 
species-specific quota as appropriate, given the best available 
science. Indeed, NMFS has often changed the specific species in each 
management unit starting with the creation of five prohibited species 
in 1997. In this case, the sandbar shark assessment gave a specific TAC 
for sandbar sharks, which resulted in NMFS establishing a base 
commercial quota of 116.6 mt dw. In order to monitor this quota, NMFS 
is establishing a quota for sandbar sharks that is separate from the 
quota for the rest of the LCS complex.
    Comment 16: The Director of the North Carolina Division of Marine 
Fisheries stated that NMFS should place blacktip sharks in the small 
coastal shark (SCS) complex.
    Response: NMFS is not changing the composition of the SCS complex 
in this rulemaking. Rather, based on the TAC recommended by the sandbar 
shark stock assessment, NMFS is establishing separate quotas for 
sandbar sharks and the non-sandbar LCS. The non-sandbar LCS complex 
consists of blacktip, bull, smooth hammerhead, scalloped hammerhead, 
lemon, nurse, silky, tiger, and spinner sharks. Blacktip sharks are the 
species most commonly caught within this complex. In the 1993 FMP for 
Atlantic Sharks, blacktip sharks were placed within the LCS complex 
based on fishery dynamics. Blacktip sharks are more commonly caught 
with gear targeting LCS (i.e., BLL gear) rather than gear used to 
target SCS (i.e., gillnet gear). In addition, the blacktip shark stock 
assessments recommended that blacktip shark landings should not change 
or increase from historical catch levels. By placing blacktip sharks 
within the SCS complex, NMFS could either drastically reduce the 
blacktip shark regional quotas if the 454 mt dw SCS complex quota was 
not increased (i.e., the 454 mt dw quota would include the quota for 
blacktip sharks and SCS), or increase the SCS complex quota to include 
historical catch of blacktip sharks. Placing blacktip sharks within the 
SCS complex and increasing the overall SCS quota could result in 
increased catch levels of SCS. These catch levels may or may not be 
sustainable for the SCS complex. Therefore, at this time, NMFS is not 
placing blacktip sharks within the SCS complex.

[[Page 40664]]

d. Over- and Underharvests
    Comment 17: NMFS received several comments regarding transferring 
quota. These include: NMFS should consider transferring unused quota to 
the next season; NMFS should not consider transferring underharvests to 
the next season even if species are not overfished or the status is 
unknown. This is because other bodies such as the IUCN have expressed 
concern as to some of these species; NMFS should subtract quota 
overages from the subsequent season's quota and disallow carryover of 
underharvests to the next season for populations that are of unknown 
status, overfished, or experiencing overfishing.
    Response: Under the final action, NMFS will generally subtract 
overhavests that occurred during one fishing year from the next fishing 
year for each individual species or species group. Depending on the 
amount of overharvests, NMFS may decide to split the overharvests over 
several years to allow continuation of the shark research fishery and 
to minimize dead discards. In addition, NMFS will add underharvests up 
to 50-percent of the base quota to the next fishing year for species or 
species grouping in which the stock status of all species is other than 
unknown, overfished, or subject to overfishing. For all other species 
and species groups, underharvests will not be carried. Not applying 
underharvests should increase the likelihood that these stocks rebuild 
in a timelier manner. This approach is also used in other fisheries 
that NMFS manages, including bluefin tuna and swordfish.
e. Shark Display and Research Quota
    Comment 18: NMFS received several comments in favor of the 
preferred management measures affecting display quotas under 
alternative suite 4. These comments included: NMFS should allocate 2 mt 
dw of sandbar sharks from the overall 60 mt ww display and shark 
research quota to public display and research under exempted fishing 
permits (EFPs); the 60 metric tons (mt ww) quota for display permits 
and research should be reduced if it has never been attained; NMFS 
should prohibit dusky sharks for public display; and, dusky sharks have 
no display value.
    Response: In order to stay within the TAC recommended by the 
sandbar stock assessment, NMFS is reducing the commercial sandbar shark 
quota, and restricting the number of sandbar sharks that can be 
collected under EFPs and Display Permits. The final action restricts 
the sandbar shark collection to 1 mt dw for research under EFPs and 1 
mt dw for public display to ensure that the sandbar shark mortality 
stays below the 158.3 mt dw TAC and to ensure that the shark research 
fishery has sufficient quota to produce statistically sound data. The 
preferred allocations to the EFP and display quotas were based on the 2 
mt dw average annual collection of sandbar sharks under EFPs, 
scientific research permits (SRPs), and display permits from 2000 to 
2006. As such, NMFS does not anticipate that these restrictions will 
affect future sandbar shark collections under these types of permits.
    Due to the severity of the overfished and overfishing status of 
dusky sharks, the collection of dusky sharks for public display will be 
prohibited. Aquariums that currently have dusky sharks will not be 
allowed to replace them. In addition, NMFS will review the allocation 
of dusky sharks for research under EFPs on a case by case basis. This 
should allow for research under EFPs on dusky sharks to continue, as 
appropriate.
    Comment 19: NMFS received numerous comments stating that the 
existing research/display quotas for sharks should not be reduced 
because: the quota is already small and not expected to increase in the 
future; the EFP quota has never been exceeded; the collection of 
sandbar sharks for public display is not a significant contributing 
factor to the reported decline of this stock; there is a 
disproportionate amount of regulation on display permits compared to 
other permits for other fishermen; any reduction in quotas or 
restrictions on species, if scientifically warranted and if based on 
scientifically peer-reviewed stock assessments, should come entirely 
out of the commercial quotas which have not been historically adhered 
to, and where the animals are landed dead with zero conservation or 
educational value; the sandbar shark is one of only a handful of shark 
species that are exceptionally hardy and have historically adapted well 
to closed aquarium environments.
    Response: While the 60 mt ww (or 43.2 mt ww) shark display and 
research quota is small compared to the current commercial 1,017 mt dw 
LCS quota, the final action does not change the overall display and 
research quota. The final action, however, does significantly reduce 
the commercial quota and prohibits most commercial fishermen from 
harvesting sandbar sharks. Additionally, the final action prohibits 
recreational retention of sandbar sharks.
    As described in the response to Comment 18 in this section, the 
quantity of sandbar and dusky sharks authorized for display and 
research (outside of the shark research fishery) is limited under the 
final action. For sandbar sharks, the amount is limited to what has 
been landed, on average, under various EFPs during the past six years. 
Therefore, no negative economic impacts are anticipated with the EFP 
allocation of sandbar sharks. EFPs and display permits will no longer 
be issued for the collection of dusky sharks. This regulation is 
consistent with the prohibition on the harvest of dusky sharks by 
commercial and recreational fishermen and, because of the overfished 
status and length of time for rebuilding, is appropriate for dusky 
sharks.
    Finally, because EFPs exempt fishermen from certain regulations 
that other fishermen must follow, NMFS will continue to issue EFPS, 
SRPs, and display permits only if the applicant has shown compliance 
with other relevant regulations regarding reporting, notifying 
enforcement, and tagging animals.
    Comment 20: NMFS should consider an exemption to allow for the live 
take of dusky sharks for public display. Aquariums need to work on the 
husbandry of these sharks.
    Response: As discussed in the response to Comment 18 in this 
section, due to the severity of the overfished and overfishing status 
of dusky sharks, dusky sharks will be prohibited for collection for 
public display. Moreover, dusky sharks do not do well in captivity. 
Currently, only 13 dusky sharks per year have been collected under 
EFPs. Under the final action, NMFS will review the allocation of dusky 
sharks for research under EFPs on a case by case basis. This should 
allow for research under EFPs on dusky sharks to continue, as 
appropriate.
    Comment 21: NMFS should explain how it will prohibit sandbar and 
dusky sharks for EFPs and display permits.
    Response: EFPs allow fishermen to harvest species otherwise 
prohibited by existing regulations. NMFS is not prohibiting the 
collection of sandbar sharks under the EFP program. Instead, 1 mt dw 
for research under EFPs and 1 mt dw for public display will be 
allocated to fishermen to ensure that the sandbar shark mortality stays 
below the 158.3 mt dw TAC. However, due to the severity of the 
overfished and overfishing status of dusky sharks, dusky sharks will be 
prohibited for collection for public display because they do not do 
well in captivity. While NMFS cannot prohibit fishermen from 
incidentally catching dusky sharks, NMFS can prohibit their retention 
for public display or research under EFPs when necessary. NMFS reviews 
the

[[Page 40665]]

allocation of dusky and sandbar sharks under EFPs and Display Permits 
on a case-by-case basis. If research on dusky sharks is deemed 
scientifically necessary, even if it includes mortality, NMFS may issue 
the necessary EFPs. However, such permits must have scientific merit 
and the research conducted by scientific staff in order for the permit 
to be issued. As is currently done for EFPs and Display permits, NMFS 
will continue to monitor all sources of mortality as a result of EFPs, 
Display Permits, Scientific Research Permits, and Letters of 
Acknowledgments, and these data will be incorporated in future stock 
assessments.
    Comment 22: NMFS should provide more information on how they track 
landings under EFPs and what happens to HMS that are collected under 
EFPs.
    Response: NMFS requires persons who receive EFPs to report the 
number of total animals kept, discarded alive, and discarded dead under 
the EFP program. This information is published in the Federal Register 
every November/December in conjunction with NMFS' request for comments 
and Notice of Intent to issue EFPs and related permits in the 
subsequent year. The information is also published in the annual SAFE 
Report and may be used in stock assessments, if appropriate. Permittees 
who do not provide this information are not issued a permit in the 
future until all required reporting from past permits was received. 
NMFS does not track what is done with the animals (e.g., if they are 
sold to aquariums) after they have been collected and landed by the 
original permittees.

2. Porbeagle Sharks as Prohibited

    Comment 1: NMFS received several comments in support of prohibiting 
the harvest of porbeagle sharks including: NMFS should prohibit the 
harvest of porbeagle sharks because even seasoned fishermen misidentify 
porbeagle sharks as mako sharks; the prohibition on the possession of 
porbeagle sharks is long overdue; NMFS should prohibit the harvest of 
porbeagle sharks and implement stricter management measures that 
address porbeagle take, including bycatch; and NMFS should prohibit the 
possession of porbeagle sharks, however, if bycatch of porbeagle sharks 
is allowed, the rule will have little effect on the overall status of 
porbeagle sharks.
    Response: As a result of the 2005 Canadian stock assessment for the 
North Atlantic porbeagle shark, NMFS has determined that porbeagle 
sharks are overfished, but overfishing is not occurring Under the final 
action, the commercial quota is 1.7 mt dw. NMFS estimates that 
commercial discards will be approximately 9.5 mt dw, and recreational 
catch, including landings in tournaments, will be approximately 0.1 mt 
dw per year. This TAC of 11.3 mt dw should increase the likelihood that 
fishing mortality will remain low, allowing the stock to rebuild within 
100 years (see rebuilding plan in Chapter 1 of the FEIS). While bycatch 
of porbeagle sharks will continue, the majority of porbeagle sharks 
caught currently are discarded alive. For instance, of an average of 
723 porbeagle sharks that were discarded annually in the PLL fishery, 
only 161.3 were discarded dead whereas 561.6 were discarded alive. The 
final action is not expected to change this discard mortality rate. 
Therefore, dead discards should continue to be low and not negatively 
affect the stock.
    Comment 2: NMFS received several comments, including comments from 
the states of Massachusetts and New Hampshire, opposing any prohibition 
of porbeagle shark retention including: there is a small historical 
porbeagle shark catch in the United States that is not significantly 
contributing to the loss of the porbeagle shark. The U.S. porbeagle 
fishery has remained sustainable under current regulations; other 
countries, such as Canada, should be more responsible for rebuilding 
this stock as they contribute more towards Atlantic-wide fishing 
mortality; NMFS should pressure Canadians to reduce their porbeagle 
catch; porbeagle sharks are the only big game fish in the Northeast; 
and placing porbeagle sharks on the prohibited species list takes away 
33-percent of the potential catch in New England.
    Response: The final action to reduce the TAC for porbeagle sharks 
will cap U.S. fishing mortality at the current level. Given the low 
level of porbeagle catch in U.S. waters, capping mortality at the 
current U.S. fishing level, assuming Canada also continues to take 
action to conserve porbeagle sharks, should allow the porbeagle shark 
population to rebuild within 100 years (see rebuilding plan in Chapter 
1 of the FEIS). Capping fishing levels should also discourage any 
future directed fishery on this species.
    Other countries that have a directed fishery for porbeagle sharks 
have reduced their porbeagle quotas. For instance, the Canadian 
porbeagle quota was cut by 80-percent in 1998. It was cut back even 
further in 2001 and again in 2006. The current Canadian quota is 250 mt 
per year, 185 mt of which may be taken by the directed porbeagle shark 
fishery, with the rest of the quota being allocated for bycatch. In 
addition, according to the latest ICCAT Recommendation (07-06), all 
contracting parties are obligated to reduce mortality of porbeagle 
sharks in their directed porbeagle shark fisheries. NMFS may take 
additional management measures in the future, as necessary, if future 
stock assessments warrant such action.
    Comment 3: The Atlantic States Marine Fisheries Commission (ASMFC) 
requested establishing a 2 mt quota for porbeagle sharks to allow a 
limited harvest. Allowing a small harvest of porbeagle sharks would 
help the ASMFC set identical species groups while offering protection 
from overharvest.
    Response: NMFS is setting a reduced TAC for porbeagle sharks of 
11.3 mt dw, of which 1.7 mt dw is allocated to commercial harvest. This 
cap on fishing mortality at its present level by commercial and 
recreational fishermen should prevent a directed fishery for this 
species from developing in the future. In addition, it is an 88-percent 
reduction in the current commercial quota of 92 mt dw, which will help 
ensure rebuilding within 100 years (see rebuilding plan in Chapter 1 of 
the FEIS).
    Comment 4: Does NMFS have any evidence that Canadian porbeagle 
sharks go into U.S. waters? Is NMFS aware if U.S. fishermen are 
catching these Canadian sharks?
    Response: Tagging data provide strong evidence that there are 
distinct porbeagle populations in the Northeast and Northwest Atlantic, 
and that the Northwest Atlantic stock is a separate population that 
undertakes extensive annual migrations between Canada and northeastern 
United States. Given these migrations, porbeagle sharks found in U.S. 
and Canadian waters are considered to be one stock that is shared by 
U.S. and Canadian fishermen.
    Comment 5: If porbeagle sharks are overfished but overfishing is 
not occurring, what would the rebuilding timeframe be if the fishery 
was to continue at the current level?
    Response: Since the 2005 Canadian stock assessment on which NMFS 
based its analysis included U.S. commercial landings of porbeagle 
sharks, capping fishing mortality at its current level should allow the 
species to rebuild within 100 years (see rebuilding plan in Chapter 1 
of the FEIS).
    Comment 6: Will NMFS propose similar porbeagle shark prohibition 
measures at the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) meeting this year? Since most landings for 
porbeagle

[[Page 40666]]

occur outside the United States, international cooperation is needed to 
help manage this species.
    Response: Adopted at the 2007 ICCAT annual meeting in Turkey, ICCAT 
Recommendation (07-06) obligates all Contracting Parties to take 
appropriate measures to reduce fishing mortality in fisheries targeting 
porbeagle sharks. While the United States does not have a directed 
porbeagle shark fishery, and U.S. commercial and recreational landings 
are small (1.8 mt dw), this ICCAT measure should help reduce mortality 
of porbeagle sharks that are targeted by other countries. The United 
States is also implementing a reduced TAC of 11.3 mt dw, which is below 
the current commercial quota of 92 mt dw per year for porbeagle sharks, 
and encouraging the live release of porbeagle sharks. This final action 
should prevent a directed fishery from developing for porbeagle sharks 
in U.S. waters in the future.
    Comment 7: NMFS underestimated the number of porbeagle sharks being 
caught. This is because the Marine Recreational Fisheries Statistics 
Survey (MRFSS) data is flawed. Porbeagle sharks are not present in New 
England waters when MRFSS is collecting their surveys in this area.
    Response: NMFS currently is working on a marine recreational 
information program to improve data collection from the recreational 
sector. Due to the rarity of porbeagle shark landings, it is difficult 
to estimate porbeagle landings with survey data, which only sample a 
portion of the recreational fishing fleet and then extrapolate the 
number of fish caught based on the estimated number of anglers. 
Therefore, NMFS may consider census data (i.e., a trip ticket or a 
call-in system where all porbeagle shark landings are counted) in the 
future to better estimate recreational porbeagle landings.
    Comment 8: The Large Pelagic Survey (LPS) started out as a tuna 
survey, and the LPS survey happens during the middle of summer. There 
is no LPS survey taking place when porbeagle sharks are present, so 
NMFS' data is skewed.
    Response: The LPS survey was designed to capture recreational 
landings in the Northeast during the time period when most fishing 
takes place north of Virginia. Currently, the survey consists of 
randomly selected weekly telephone and dockside intercept interviews, 
with mandatory participation from June 1 through October 31 from 
Virginia to New York. The survey is conducted July 31 through October 
31 for states north of New York. Past phone surveys indicated this is 
when most of the fishing effort occurs in this region. As mentioned in 
the response to Comment 7 in this section, due to the rarity of 
porbeagle shark landings, it is difficult to estimate porbeagle 
landings with survey data. Therefore, NMFS may consider census data 
(i.e., trip ticket or a call-in system where all porbeagle sharks 
landed are counted) in the future to better estimate recreational 
porbeagle landings.
    Comment 9: NMFS should have recreational fishermen report their 
porbeagle shark landings.
    Response: NMFS currently does not require recreational fishermen to 
report shark landings. NMFS collects data on recreational fishing catch 
and effort through the LPS and the MRFSS, which is considered the best 
available science for determining recreational landings. These surveys 
collect data on fishing effort and catch of highly migratory species. 
In addition, randomly selected fishing tournaments are an important 
component of HMS recreational fisheries data. However, because of the 
rarity of porbeagle shark landings, in general, NMFS may not be 
capturing all of the porbeagle sharks landed recreationally through 
these types of surveys. Thus, NMFS is currently working on ways to 
gather more data on recreational landings of porbeagle sharks.

3. Retention Limits

    Comment 1: The proposed 22 non-sandbar LCS retention limit is not 
economically feasible and is the equivalent of shutting down the 
fishery; NMFS should consider a trip limit of 0 to 75 non-sandbar LCS 
to maintain economic viability.
    Response: NMFS assessed and analyzed the economic impacts of the 
proposed retention limits, which are summarized in the FRFA and Chapter 
8 of the FEIS. The proposed 22 non-sandbar shark LCS retention limit 
was calculated by dividing the available quota over average annual 
number of trips that landed non-sandbar LCS by directed and incidental 
permit holders as reported in the Coastal Fisheries logbook and the HMS 
logbooks. At the time of the Draft EIS, the available non-sandbar LCS 
quota was determined by the average annual landings reported in the HMS 
and Coastal Fisheries logbooks from 2003 to 2005. However, during the 
comment period, the Southeast Fisheries Science Center (SEFSC) 
recommended using HMS shark dealer reports (i.e., southeast and 
northeast general canvass and SEFSC quota monitoring databases) to 
calculate historical landings of non-sandbar LCS since the stock 
assessments were, in part, based on landings reported by HMS shark 
dealer reports. Therefore, in the FEIS, NMFS used the shark dealer 
reports to calculate the non-sandbar LCS base quota. Because the HMS 
shark dealer reports include landings by both state and Federal shark 
fishermen, whereas logbook data includes landings by only federally-
permitted shark fishermen, using dealer reports results in a higher 
non-sandbar LCS base quota.
    In this final action, NMFS is using a higher base quota. After 
accounting for overharvests that occurred in 2007 (see Appendix C of 
the Final Environmental Impact Statement), NMFS is revising the 
retention limits based on the larger non-sandbar LCS quota. The final 
measures implement a 33 non-sandbar LCS trip limit for directed permit 
holders and a three non-sandbar LCS trip limit for incidental permit 
holders. While the trip limit for directed permit holder has increased 
from what was proposed in the Draft EIS, NMFS assumes that fishermen 
with directed shark permits will no longer target non-sandbar LCS 
outside the research fishery. Rather, a 33 non-sandbar LCS trip limit 
allows fishermen to keep non-sandbar LCS while they target other 
species, such as reef fish and snapper-grouper. Based on BLL observer 
program data from 2005 to 2007, fishermen with directed shark permits 
fishing for snapper/grouper kept, on average, 12 sharks per trip. Thus, 
this trip limit should help in preventing excess discards. However, 
this retention limit will be too low to create an incentive for 
fishermen to target non-sandbar LCS.
    NMFS is aware that the revised retention limit of 33 non sandbar 
sharks per vessel/trip is a significant reduction from the current 
4,000 lb dw LCS retention limit for directed permit holders. These 
measures are necessary, however, to rebuild overfished stocks, reduce 
bycatch, and end overfishing consistent with NMFS's obligations under 
the Magnuson-Stevens Act.
    Comment 2: NMFS should consider a per day limit in lieu of an 
individual trip limit. NMFS could reduce the limit to something like 
2,000 lb non-sandbar LCS per day. This would allow a larger amount to 
be harvested in a single trip, making it more profitable for the 
fishermen. A day limit would also keep quota available for longer 
throughout the year.
    Response: NMFS has not considered a per day trip limit because of 
the difficulty in determining how NMFS would monitor what a vessel 
harvests within a 24 hour period during a multiday trip. Currently the 
shark fishery is managed on a per trip basis, as are most of the HMS 
fisheries. While

[[Page 40667]]

a higher per day limit may allow for a larger single trip, which may 
reduce discards, it would be difficult for NMFS to monitor when a 
vessel left and returned to port and whether or not this was done 
multiple times within 24 hours, especially if vessels visited several 
ports and were not required to possess vessel monitoring systems (VMS). 
A per trip limit is easier to enforce; no matter what port a vessel 
returns to, it would be held to the same trip limit. While a per day 
limit may reduce the number of trips and elongate the season based on 
how gillnet and BLL trips targeting non-shark species typically fish, 
the trip limits in the final action were devised in such a way to keep 
the non-sandbar LCS season open longer than they have been in the past. 
NMFS estimates that under the non-sandbar trip limit in this final 
action, the fishery should remain open the entire year. Given the 
reduced trip limits to accommodate the reduced shark quotas, NMFS 
believes that dividing the available quota across the historical 
fishing effort should help the shark fisheries stay open longer. In 
addition, since directed shark permit holders will presumably no longer 
target non-sandbar LCS based on those reduced trip limits and the 
prohibition on retention of sandbar sharks outside the research 
fishery, the non-sandbar LCS fishery will likely be incidental in 
nature where non-sandbar LCS are landed while fishermen target other 
species throughout the year.
    Comment 3: NMFS should propose a 4,000 lb level per year for 
directed permit holders and grant the least productive vessels an 
incidental permit.
    Response: Based on the available quota (see Appendix C in the FEIS 
for more details), NMFS is setting a non-sandbar LCS trip limit of 33 
non-sandbar LCS for directed shark permit holders (approximately 1,000 
lb dw per trip of non-sandbar LCS); incidental permit holders would be 
allowed 3 non-sandbar LCS per trip. If fishing effort were to stay the 
same as the average level of effort from 2003-2005, then NMFS expects 
the shark fishing season to stay open for the entire fishing year with 
these trip limits. NMFS has chosen a trip limit that would utilize the 
entire non-sandbar LCS quotas outside the research fishery, assuming 
fishing effort remains at the average level from 2003-2005. A 4,000 lb 
dw limit per year for non-sandbar LCS would be approximately four trips 
per year for directed fishermen. At this time, NMFS feels that such a 
retention limit would be overly restrictive; however, if NMFS finds 
that the 33 non-sandbar LCS per trip for directed fishermen does not 
sufficiently rebuild the overfished stock of sandbar sharks or prevent 
overfishing, then trip limits can be adjusted, as appropriate. 
Fishermen selected to participate in the shark research fishery would 
be afforded higher trip limits consistent with research objectives and 
would be allowed to land all shark species, except prohibited sharks.
    In order for NMFS to change retention limits for individual vessels 
based on their past landing history, NMFS would likely consider an IFQ 
or LAPP. However, as explained in response to Comment 2 under 
``Quotas'' above and in Chapter 1, it would take NMFS several years to 
implement an ITQ system. Under the current timeline under the Magnuson-
Stevens Act for establishing a plan amendment to end overfishing, NMFS 
has insufficient time to establish an IFQ or LAPP for sharks at this 
time. However, NMFS could consider developing an IFQ or LAPP for sharks 
as well as other highly migratory species in the future.
    Comment 4: NMFS should carve out a retention limit specific to 
existing gillnetters. Gillnetters are being penalized by the preferred 
retention limit because they catch very few sandbar and dusky sharks.
    Response: NMFS believes that revised quotas and retention limits 
for non-sandbar LCS that apply to all gear types are more appropriate. 
These revised retention limits include a higher retention limit for 
directed shark permit holders compared to incidental shark permit 
holders. While sandbar and dusky sharks may be less likely to be caught 
in gillnet gear compared to BLL gear, setting separate gillnet 
retention limits was not considered as a part of this rulemaking mainly 
because NMFS has serious concerns regarding interaction rates with 
marine mammals and protected resources with gillnets. Given these 
interactions set forth in the following paragraph, NMFS believes it is 
inappropriate to implement measures that might result in increased 
fishing effort with this gear type. For example, setting different trip 
limits for gillnet gear could result in displaced BLL fishermen moving 
to the gillnet fishery.
    The five year incidental take statement (ITS) for the drift gillnet 
fishery in the 2003 Biological Opinion (BiOp) was 10 loggerhead sea 
turtles (with 1 mortality), 22 leatherback sea turtles (with 3 
mortalities) and 1 smalltooth sawfish (with zero mortalities). The ITS 
was specific to drift gillnet gear as strikenet gear had not interacted 
with protected species, at that time, and sink nets were not considered 
to be part of the shark gillnet fishery. However from 2003 to 2007 
(2003 being the start of the ITS period), vessels with shark permits 
using drift, sink, and strike gillnets interacted with a total of 13 
loggerhead sea turtles (3 of which died or were unresponsive when 
discarded), 1 leatherback sea turtle and 2 bottlenose dolphins (1 of 
which died). In addition, in January 2006, an Atlantic right whale calf 
was caught and died in gillnet gear off the northeast coast of Florida. 
Therefore, NMFS is not establishing a higher specific gillnet retention 
limit at this time.
    Comment 5: NMFS should consider capping the number of vessels that 
can deploy gillnets for sharks.
    Response: There are currently only 4 to 6 sink and strike 
gillnetting vessels combined that target sharks (Carlson and Bethea, 
2007). Given the reduction in trip limits as a result of this 
rulemaking, and restrictions and regulations under the Atlantic Right 
Whale Take Reduction Plan for this gear, NMFS does not believe there 
would be a significant increase in shark gillnet fishing in the future.
    Comment 6: NMFS should lower the incidental catch limit for non-
sandbar LCS to be more in line with the current average (3 non-sandbar 
LCS/vessel/trip); NMFS should not decrease the directed permit holder 
retention limits by 30-percent while increasing the incidental 
retention limit by more than seven times; NMFS should provide better 
justification for raising the trip limits for incidental permit 
holders; the proposed retention limit increase for incidental permit 
holders could increase fishing effort and bycatch; NMFS should consider 
restricting incidental take of non-sandbar LCS.
    Response: In the final action, NMFS establishes retention limits of 
33 non-sandbar LCS per trip for directed permit holders and 3 non-
sandbar LCS per trip for incidental permit holders. NMFS initially 
proposed retention limits of 22 non-sandbar LCS per trip for both 
directed and incidental permit holders because NMFS considers the 
future non-sandbar shark fishery outside the shark research fishery as 
mainly incidental in nature (i.e., fishermen would not target non-
sandbar LCS based on the low retention limits). Under the proposed 
scenario, incidental permit holders could have experienced a net 
positive economic benefit, given the retention limit of 22 non-sandbar 
LCS trip limit was more than the average of 3 non-sandbar LCS per trip 
that they currently retain. Such an increase in trip limits for 
incidental permit holders could have resulted in increased fishing 
pressure on sharks by incidental permit holders.

[[Page 40668]]

    Based on public comment and to acknowledge differences among 
directed and incidental permit holders (e.g., on average, directed 
permit holders discard more sandbar and dusky sharks (8.1 mt dw and 
25.7 mt dw per year, respectively) than incidental permit holders (1.5 
mt dw and 3.8 mt dw per year, respectively)), NMFS' final action is to 
set separate retention limits based on permit type. Directed permit 
holders will be allowed a higher retention limit than incidental permit 
holders. This affords directed permit holders, who may have paid more 
for their directed shark permit and who presumably rely on shark 
products for a larger part of their income, a higher retention limit 
than if all permit holders had the same retention limit.
    Comment 7: NMFS should clarify how a retention limit based on the 
number of sharks per trip would work. What happens if you get 100 
sharks on a line? Under these new regulations, one will have to make 
multiple trips to be legal.
    Response: Under current regulations, NMFS has a directed LCS trip 
limit of 4,000 lb dw. When fishermen exceeded this trip limit on a 
given set, they would often cut their gear and leave it while they 
returned to port to offload their legal trip limit. Once they had 
offloaded, they would return to retrieve the rest of their gear and 
catch. The same principle applies for this final action. However, due 
to the reduction in the retention limit and the prohibition on the 
harvest of sandbar sharks, NMFS assumes that fishermen with directed 
shark permits would no longer target non-sandbar LCS as they have in 
the past. Rather, fishermen would keep non-sandbar LCS only while they 
target other species, such as reef fish and snapper-grouper. The trip 
limit in this final action of 33 non-sandbar LCS for directed shark 
permits should minimize dead discards of sharks that fishermen catch 
while in pursuit of other species.
    Comment 8: NMFS should have proposed different retention trip 
limits for different species in different regions because there are 
more sandbars available in the Atlantic and more blacktip sharks 
available in the Gulf of Mexico; NMFS should split trip limits by state 
given the tendency of different areas to catch sandbar or dusky sharks; 
NMFS should consider the fact that Louisiana fishermen catch mostly 
blacktip sharks and no sandbar or dusky sharks and, therefore, should 
have a larger retention trip limit.
    Response: Based on public comment, NMFS analyzed regional quotas 
and retention limits for two regions: the Atlantic and Gulf of Mexico 
regions. As a result, NMFS is implementing regional quotas based on the 
results of the blacktip shark assessment, overharvests that occurred in 
2007 (for more details, see Appendix C), and the fact that the ASMFC 
interstate shark management plan will implement measures in state 
waters of the Atlantic. Regional quotas allow for a higher non-sandbar 
LCS quota in the Gulf of Mexico region, which is comprised of a healthy 
stock of blacktip sharks. Regional quotas also allow for a lower non-
sandbar LCS quota in the Atlantic region where the stock status of 
blacktip sharks is unknown and the majority of dusky sharks are caught.
    However, while the final action sets regional quotas for non-
sandbar LCS, NMFS is not implementing regional non-sandbar LCS 
retention limits. Instead, the same retention limit for non-sandbar LCS 
would apply in the Atlantic and the Gulf of Mexico regions. NMFS 
believes that a single retention limit, regardless of region, will help 
with enforcement and be less confusing for fishermen. For example, with 
one retention limit, fishermen fishing near the Florida Keys could move 
between the two regions on one trip. If there were two different 
retention limits, then fishermen would need to stay in one area per 
trip or risk landing a higher trip limit in the wrong region. Finally, 
while the analyses for setting these retention limits used historical 
fishing effort as a proxy for determining the retention limit, it is 
uncertain how future effort would be allocated among regions, or even 
states. This added uncertainty makes it difficult to determine a 
region-specific or state-specific retention limit, given the other 
management measures that are changing as a result of this final action.
    Comment 9: NMFS should consider having a set-aside quota for the 
incidental fishermen so that they can still retain sharks when the 
directed fishery is closed.
    Response: As a result of the final actions in this rule, NMFS is 
assuming that fishermen with directed shark permits will no longer 
target non-sandbar LCS. Rather, fishermen will likely keep sharks only 
while they target other species such as reef fish and snapper-grouper. 
As such, the non-sandbar LCS fishery would be incidental in nature and 
non-sandbar LCS will likely be landed only incidental to the non-shark 
species that the fishermen would target throughout the year. Given the 
reduced trip limits for non-sandbar LCS, NMFS believes that the shark 
fishery will remain open for longer periods than in the past, possibly 
the entire year. Given the analyses that indicate the fishery will be 
open most of the time and the change in status of the fishery, NMFS 
believes that an incidental set aside is not needed at this time.
    Comment 10: NMFS should consider a trip limit that is not based on 
weight since most fishermen do not have scales on their vessels.
    Response: Under the final action, NMFS is basing the trip limits on 
the number of sharks per trip for both directed and incidental permit 
holders.
    Comment 11: If 7 out of 10 LCS landed are sandbar sharks, as NMFS 
claims, and NMFS has a 500+ mt dw non-sandbar LCS quota, then NMFS' 
discard calculations are flawed. A 500+ mt dw non-sandbar LCS quota 
would result in 3,500 mt of sandbars being discarded.
    Response: The catch composition described above would only be 
realized if 1) fishermen were directing effort on sharks, and 2) there 
was a 4,000 lb dw trip limit. This catch composition, which was based 
on information from NMFS BLL observer reports, was used to estimate the 
number of trips that the shark research fishery could take to harvest 
the available sandbar shark quota, assuming there was a 4,000 lb dw LCS 
trip limit within the research fishery.
    However, for trips outside the research fishery, sandbar sharks 
would be prohibited and there would be reduced non-sandbar LCS trip 
limits. Therefore, NMFS assumes that directed shark permit holders 
would no longer make trips targeting non-sandbar LCS because of the 
significant reduction in retention limits and the fact that sandbar 
sharks could not be retained, therefore, the catch composition and 
subsequent sandbar discards described in the comment above would not 
apply to trips occurring outside the research fishery. Given this 
assumption, and based on the best available science from logbook, 
dealer reports, and observer program data, NMFS estimates that 
incidental sandbar shark mortality outside the research fishery would 
be approximately 40 mt dw. This estimate was determined by evaluating 
logbook data and observer reports to estimate sandbar shark discards 
from pelagic longline (PLL) gear (4.3 mt dw), discards by recreational 
fishermen (27 mt dw), discards within the shark research fishery (0.3 
mt dw), sandbar sharks discarded by fishermen without HMS permits (6.3 
mt dw), and sandbar sharks that used to be landed by incidental 
fishermen (2.3 mt dw).

[[Page 40669]]

4. Fins On Requirement

    Comment 1: NMFS received several comments in support of a ban on 
shark finning as well as support for the proposal to land sharks with 
their fins attached. Commenters believe that shark identification is 
hampered by fin removal, enforcement is made easier if sharks are 
landed with fins attached, that the quality of data collected would 
improve, which is critical to improving the sustainability of shark 
stocks, and that technical difficulties of landing sharks whole could 
be alleviated with input from fishery experts and NOAA staff. A 
commenter also stated that NMFS should implement this measure promptly 
in the Atlantic while also taking steps to ensure a similar measure is 
implemented in the U.S. Pacific waters.
    Response: On December 21, 2000, the Shark Finning Prohibition Act 
(Public Law 105-557) (SFPA) was signed into law. The SFPA amended the 
Magnuson-Stevens Act section 307(1)(P), making it unlawful for any 
person ``(i) to remove any of the fins of a shark (including the tail) 
and discard the carcass of the shark at sea; (ii) to have custody, 
control or possession of any such fin aboard a fishing vessel without 
the corresponding carcass; or (iii) to land any such fin without the 
corresponding carcass.'' On February 11, 2002 (67 FR 6194), NMFS 
published a final rule that established regulations which, among other 
things, prohibit any person from engaging or attempting to engage in 
shark finning; possessing shark fins without the corresponding 
carcasses while on board a U.S. fishing vessel; and landing shark fins 
without the corresponding carcasses. In this Amendment, NMFS is 
selecting an alternative that will require fishermen to land sharks 
with their fins naturally attached. This requirement will improve 
enforcement, species identification, data quality for future stock 
assessments, and further prevent the practice of shark finning. In the 
U.S. Pacific Ocean, three Regional Fishery Management Councils 
recommend shark management measures to NMFS: the Pacific Fishery 
Management Council, the North Pacific Fishery Management Council, and 
the Western Pacific Management Council. The Councils may consider 
recommending amendments to fishery management plans to include measures 
to land sharks with fins attached in the U.S. waters of the Pacific 
Ocean.
    Comment 2: NMFS received several comments in opposition to landing 
sharks with fins attached stating that this requirement would result in 
large amounts of waste at the dock, that the market has grown 
accustomed to receiving sharks in log form, that it will be more 
difficult for law abiding fishermen to comply with the law, and it will 
do nothing for those intent on breaking the law who may still bring 
only fins to the docks.
    Response: While this requirement will change current fishing 
practices, NMFS does not believe that the requirement to land sharks 
with fins attached is overly burdensome for the following reasons. The 
requirement to land sharks with fins attached will allow fishermen to 
leave the fins attached by at least a small piece of skin so that the 
fins could be folded against the carcass and the shark packed 
efficiently on ice while at sea. Shark fins could then be quickly 
removed at the dock without having to thaw the shark. Sharks may be 
eviscerated, bled, and the head removed from the carcass at sea. These 
measures should prevent excessive amounts of waste at the dock, since 
dressing (except removing the fins) the shark may be performed while at 
sea. While this will result in some change to the way in which 
fishermen process sharks at sea, because the fins may be removed 
quickly after the shark has been landed, NMFS expects that the market 
will continue to receive sharks in their log form. Alternatively, the 
dealers may decide to accept shark carcasses with the fins still 
attached. No person aboard a vessel with a shark permit would be 
allowed to possess shark fins without the fins being attached to the 
corresponding carcass until after the shark has been landed. 
Individuals that do not have a shark permit or who land shark fins 
detached from the corresponding carcass will be in violation of the 
regulations and subject to enforcement action.
    Comment 3: NMFS received several comments regarding the 5-percent 
fins to carcass ratio stating that 1) the ratio is wrong and NMFS needs 
to collect data to re-examine the ratio because it is different for all 
species, 2) NMFS should urge Congress to revise the fin to carcass 
ratio in the SFPA, 3) making fishermen land sharks with fins attached 
could still lead to a violation of the 5-percent ratio, and 4) 
fishermen are unsure of which weight to record in their logbook if the 
5-percent ratio remains in effect and sharks are landed with fins 
attached.
    Response: NMFS first implemented the 5-percent fin-to-carcass ratio 
in the 1993 Shark FMP. This ratio was based on research that indicated 
that the average ratio of fin weight to dressed weight of the carcass 
was 3.6 percent, and the sandbar fin ratio was 5.1 percent. In December 
2000, the SFPA was signed into law. The SFPA established a rebuttable 
presumption that any shark fins landed from a fishing vessel or found 
on board a fishing vessel were taken, held, or landed in violation of 
the shark finning ban if the total weight of shark fins landed or found 
on board exceeded 5-percent of the total weight of shark carcasses 
landed or found on board. This management measure was implemented by 
NMFS through a final rule released in February 2002. NMFS may conduct 
additional research on the fin-to-carcass ratio in the shark research 
fishery, though any changes to the 5-percent ratio will have to be 
modified by Congressional action. In order to help fishermen document 
that sharks were landed with their fins attached, NMFS intends to 
modify the dealer weigh-out slips so that dealers may clearly document 
that the sharks were landed with fins attached. Consistent with the 
regulations at Sec.  635.30(c)(3), a person that has been issued a 
Federal shark LAP and who lands shark in an Atlantic, Gulf of Mexico, 
or Caribbean coastal port must have all fins and carcasses weighed and 
recorded on the weigh-out slips specified in Sec.  635.5(a)(2) and in 
accordance with regulations at part 600, subpart N. Fishermen may 
either record the weight of the whole shark landed or they may record 
carcass and fin weights separately. Dealers must report the dressed 
carcass weight separately from the fin weight.
    Comment 4: NMFS received several comments, including one from the 
State of Florida, that NMFS should recalculate the conversion factor 
between dressed weight and whole weight of a shark since more of the 
shark is going to be landed.
    Response: The 1.39 conversion factor from dressed weight to whole 
weight is used to convert the dressed (gutted) weight of a shark, (the 
weight of the shark carcass in a log form with fins removed) to a whole 
weight. NMFS will continue to monitor shark quotas in dressed weight 
(i.e., carcass in log form with fins removed) and will use shark 
landings recorded via dealer reports to monitor the quota outside the 
shark research fishery. Therefore, the conversion factor should not 
need to be recalculated since the definition of dressed weight would 
still constitute a shark log with fins removed. Currently, dealers 
record the fin weights and dressed weight of the shark carcasses 
separately on their dealer reporting forms; in this rule, NMFS 
clarifies this reporting requirement. However, NMFS will monitor the 
situation and may change the conversion factor if appropriate.

[[Page 40670]]

    Comment 5: NMFS received several comments stating that NMFS should 
allow fishermen to remove just one pectoral fin, remove all fins except 
the pectoral fins, allow the removal of fins from species in the SCS 
complex, and allow vessels operating in the shark research fishery to 
remove the fins since those vessels would have 100-percent observer 
coverage. NMFS also received several comments from the State of Florida 
that NMFS should allow fishermen to remove the tail of the shark at sea 
and that NMFS should provide fishermen with a diagram depicting the 
proper way to clean and land sharks with fins attached.
    Response: The provision to land sharks with their fins attached 
allows fishermen to bleed, eviscerate, and remove the head at sea while 
cutting the fins almost all the way off so that the fins can be folded 
and the shark can be packed on ice. Authorizing the removal of certain 
fins or the fins of a specific species, or within a species complex, or 
from vessels within the research fishery could create additional 
enforcement problems and complicate compliance. Therefore, NMFS is 
requiring that all fins remain attached to the carcass through landing 
for all vessels. Because there are potentially many ways that the 
sharks may be dressed while leaving the fins attached, NMFS does not 
believe it is appropriate to provide specific instructions on how to 
dress sharks because more than one method may be used. NMFS only 
requires that sharks be landed with their fins naturally attached. 
Fishermen are allowed the flexibility to dress the shark and tailor the 
method to their specific operation or dealer requirements, providing 
they land all sharks with their fins naturally attached.
    Comment 6: NMFS received several comments regarding the potential 
food safety or Hazardous Analysis of Critical Control Point (HACCP) 
concerns if shark fins cannot be removed until the shark is landed 
because it may be difficult to keep the core temperature of the shark 
at 40 degrees in 90 degree heat. The state of Florida commented that 
NMFS should test shark meat quality to determine if there is a decrease 
in quality as a result of regulatory actions.
    Response: The Food and Drug Administration (FDA) published 
regulations (December 18, 1995; 60 FR 65092) mandating the application 
of the HACCP principles to ensure the safe and sanitary processing of 
seafood products. Although these regulations do not apply to fishing 
vessels or transporters, the processors of domestic seafood must comply 
with the regulations as it applies to incoming product. Dealers should 
consult the FDA Center for Food Safety and Applied Nutrition Fish and 
Fisheries Products Hazards and Controls Guidance for guidance on FDA 
regulations. The provision to land sharks with their fins attached 
allows fishermen to bleed, eviscerate, and remove the head at sea while 
cutting the fins almost all the way off so that the fins can be folded 
and the shark can be packed on ice. Because the sharks may be dressed 
and the fins cut almost all the way off the shark at sea before it is 
packed on ice, the shark should not have to be thawed to completely 
remove the fins once the shark is landed. In addition, reduced 
retention limits for non-sandbar LCS should reduce the number of sharks 
that are landed per trip, therefore decreasing the amount of processing 
time at the dock. NMFS might conduct tests through the shark research 
fishery to see if the new fins on requirement affect fish meat quality. 
However, the results of these tests would be limited in use as the 
higher retention limits in the shark research fishery could increase 
processing times and therefore lower meat quality.
    Comment 7: NMFS received several comments regarding international 
cooperation and imports including, 1) NMFS should set a firm shark 
conservation precedent for the international community, 2) NMFS should 
not get too far out in front of the international community, and 3) the 
United States should ban imports of shark fins from countries that do 
not prohibit shark finning.
    Response: The United States has taken an active role in promoting 
improved international shark conservation and management measures in 
international fora such as Regional Fisheries Management Organizations 
(including ICCAT), the United Nations General Assembly, the Convention 
on International Trade of Endangered Species (CITES), and the 
Convention on Migratory Species. Consistent with the United Nations 
Food and Agricultural Organizations' International Plan of Action for 
sharks, the United States completed and implemented the National Plan 
of Action (NPOA) for sharks in February 2001. The NPOA calls for data 
collection; assessment of elasmobranch stocks; development of 
management measures, where appropriate; research and development of 
mitigation measures to reduce shark bycatch; and outreach and 
education. The requirement to land sharks from the U.S. Atlantic Ocean 
with their fins attached should help raise awareness in the 
international arena of enforcement issues associated with shark finning 
bans and the 5-percent fin-to-carcass ratio. NMFS published a proposed 
rule on April 4, 2008 (73 FR 18473), that would amend the International 
Trade Permit (ITP) Program to require shark fin importers, exporters, 
and re-exporters (shark fin traders) to obtain an ITP consistent with 
ICCAT recommendations. This requirement would provide needed 
information on shark fin trade participation and would provide NMFS 
enforcement access to trade records, since the export of shark fins is 
one of the primary economic incentives for much of the U.S. Atlantic 
shark fishery.

5. Time Area Closures

    Comment 1: NMFS should include the Marine Protected Areas (MPAs) 
recommended by the South Atlantic Fishery Management Council (SAFMC) in 
alternative suite 5 because if that alternative were selected, the MPAs 
proposed by the SAFMC would still need to be implemented.
    Response: NMFS decided to include a prohibition on shark BLL 
fishing in the MPAs in several of the alternative suites in order to 
ensure that the SAFMC's Amendment 14 prohibition on bottom tending gear 
would include HMS BLL gear. NMFS needed to implement complementary 
regulations in order for the MPAs to be effective. Since alternative 
suite 5 would have resulted in a closure of the entire shark fishery, 
no shark BLL fishing would occur in the MPAs or elsewhere. Thus, NMFS 
did not need to include a prohibition on shark BLL fishing in MPAs in 
alternative suite 5.
    Comment 2: NMFS received a number of specific comments regarding 
the MPAs recommended by the SAFMC, including: 1) coordinates of MPAs -- 
NMFS should provide the correct coordinates for the Charleston Deep 
Artificial Reef MPA; 2) NMFS should state the specific type of MPAs 
being implemented (i.e., type II MPAs); and, 3) NMFS should include a 
transit exemption for vessels traveling through proposed MPAs with BLL.
    Response: NMFS is aware of problems with the coordinates provided 
in the Draft Amendment for the Charleston Deep Artificial Reef and has 
provided the correct coordinates for the Charleston Deep Artificial 
Reef in Final Amendment 2 to the Consolidated HMS FMP. In the Draft 
EIS, NMFS described the MPAs as type II MPAs according to the language 
used in the SAFMC's Amendment 14. Type II MPAs are areas that are 
closed to bottom fishing but allow trolling for coastal pelagics and 
HMS. Since NMFS is prohibiting the

[[Page 40671]]

use of BLL gear in these MPAs there is no need to specify the type of 
MPA in the proposed or final rules. Readers should refer to SAFMC's 
Amendment 14 for more information on the type of MPAs being recommended 
by the Council and being implemented by NMFS. NMFS did not implement a 
stowage provision because very few HMS permitted vessels have 
historically fished in the MPAs, and the MPAs are generally small in 
size and can easily be circumnavigated by BLL vessels. If the SAFMC 
recommends a stowage provision, then NMFS may consider a similar 
backstop provision in the HMS regulations.
    Comment 3: NMFS should implement VMS requirements for the SAFMC 
Amendment 14 MPAs.
    Response: Consistent with SAFMC's Amendment 14, which does not 
include a VMS requirement, NMFS determined that it was unnecessary to 
implement a VMS requirement for HMS vessels. NMFS has several other VMS 
requirements in place for HMS vessels including all vessels with 
gillnet gear during certain times of the year, BLL vessels in the 
vicinity of the mid-Atlantic shark closed area, and all vessels with 
PLL gear on board year-round. To the extent that some of those vessels 
would fish in the vicinity of the MPAs, NMFS would be able to track 
their movements. However, most vessels that do not fish with PLL and 
maintain directed or incidental shark permits in the South Atlantic are 
not required to have VMS.
    Comment 4: NMFS should use the terms ``closed areas'' or ``area 
closures'' to describe the locations where the proposed regulations 
apply to avoid confusion on the intent of the MPAs (since they are for 
snapper/grouper, and not sharks) and to improve compliance by 
fishermen. ``Marine protected area'' is not a term used in the 
Magnuson-Stevens Act. NMFS should clarify how and why closures for 
fisheries management are part of the official MPA classification 
system.
    Response: NMFS chose to use the term Marine Protected Area or MPA 
because that is the specific language provided in Amendment 14. 
Although the intent of the MPAs is to protect snapper grouper species, 
using nomenclature in this final rule that differs from that used to 
refer to the closures in Amendment 14 may create confusion. As a 
result, NMFS is referring to the closures in the same way as the SAFMC.
    Comment 5: NMFS should prohibit the use of longline gear in 
existing and new MPAs. The overall amount of bycatch within MPAs may 
not be minimal when considered in the context of the relevant MPA and 
the number of species and individuals found within the MPA.
    Response: NMFS is prohibiting the use of BLL gear in all of the 
preferred SAFMC MPAs because those are the areas the SAFMC has 
determined to be important for certain grouper species that are 
sometimes caught incidentally on shark BLL gear.
    Comment 6: The ASMFC Spiny Dogfish and Coastal Sharks Management 
Board would like NMFS to reconsider the closures off of North Carolina. 
Specifically, the Board asks that the duration of the closure be 
reduced to run from January 1 - May 14. This request is based on the 
Coastal Sharks Technical Committee's recommendation for a state water 
closure from May 15 through July 15 from Virginia to New Jersey. This 
state water closure is designed to protect large adult female sandbar 
sharks when they are on the pupping grounds. The closure off of North 
Carolina was designed to protect juvenile sharks in the nursery area 
during the winter; however the majority of the small sharks have 
migrated out of that area by mid-May.
    Response: The mid-Atlantic shark closed area was implemented to 
protect juvenile sandbar sharks and all life stages of prohibited dusky 
sharks. Survey data collected from the NOAA fisheries research vessel 
Delaware II from April through May 2007 indicate that the majority of 
sandbar sharks caught in the mid Atlantic shark closed area were 
juvenile (56-percent immature vs. 44-percent mature). Therefore, 
maintaining the mid-Atlantic closed area should continue to reduce the 
number of interactions of BLL gear with sandbar and dusky sharks as 
well as reduce the number of interactions with immature sandbar and 
dusky sharks. This will provide positive ecological benefits for both 
of these overfished shark stocks. Furthermore, measures implemented by 
the ASMFC are not yet finalized. Once finalized measures are in place, 
NMFS may consider taking additional action to complement state 
measures. Implementing these measures before they are finalized and 
implemented in the ASMFC Coastal Shark FMP could result in inconsistent 
management measures.
    Comment 7: The SAFMC and the South Carolina Department of Natural 
Resources support the MPAs and maintaining the current time/area 
closure as proposed in the draft amendment.
    Response: This final action will implement the MPA provisions in 
Amendment 14 and maintain the current time/area closure.

6. Reporting

    Comment 1: NMFS should take action to ensure that fishermen report 
their landings correctly and honestly as most fishermen do not 
currently provide accurate reports.
    Response: The regulations require fishermen to submit accurate and 
truthful reports on their fishing activities. NMFS can and does verify 
logbook reports and catch rates with observer reports, as needed. If 
fishermen and/or dealers choose not to abide by the regulations, then 
they may face enforcement action.
    Comment 2: NMFS received many comments on the dealer reporting 
timeframe, including: NMFS should consider stronger restrictions on 
dealer reporting; NMFS should allow two-weeks for dealer reports to be 
submitted; 10 days is acceptable for the report to be postmarked, but 
not for NMFS to receive it; NMFS should consider more frequent 
reporting; NMFS should consider 24 hour reporting for shark dealers; 
NMFS should consider electronic reporting for dealers (once a week); 
dealers still need to be able to fax reports; more frequent reporting 
is not needed. NMFS should take action against dealers that are not 
reporting; NMFS should not renew a dealer permit if they don't report 
on time; making reports ``received by'' will not allow fishermen to 
know if NMFS got their report on time; and NMFS should provide 
confirmation numbers when dealer reports are received.
    Response: NMFS prefers to require dealer reports be received within 
ten days of the end of the reporting period at this time because a 
``received by'' requirement can be tracked by NMFS, the dealers, and 
enforcement more easily than a ``postmarked'' requirement. NMFS is 
concerned about dealers that are not reporting and is working with the 
Office of Law Enforcement to pursue shark dealers who do not meet their 
reporting obligations. Additionally, given recent issues with dealers 
not realizing that substantial landing reports were not received by 
NMFS, NMFS feels that requiring reports to be ``received by'' a certain 
day will aid in ensuring all reports are received by NMFS in a timely 
manner. The final action does not require twenty-four hour reporting 
because such reporting would result in an unduly increased reporting 
burden for shark dealers at this time. NMFS may consider additional 
modifications and/or adjustments to reporting frequency for future 
implementation.

[[Page 40672]]

    NMFS is currently capable of accepting electronic reports from some 
dealers who have access to that data system in the Southeast Fisheries 
Science Center and faxes of shark dealer landings. NMFS does not issue 
confirmation numbers when shark dealer reports are received; however, 
submitting dealer reports by FAX or electronically includes a date/time 
stamp in addition to whether the transmission was successful or not. 
Shark dealers may also consider using certified mail to provide 
verification that the correspondence was received.
    Comment 3: NMFS should be more proactive and contact dealers as the 
quotas fill up.
    Response: Significant overharvests in the shark fishery in recent 
years have occurred because shark dealers were not submitting their 
reports, or verifying that their reports were received by NMFS in the 
time period required by NMFS regulations. NMFS is working to ensure 
better compliance with its reporting regulations by encouraging shark 
dealers to report on time or face possible enforcement action for 
failing to do so.
    Comment 4: Does NMFS have a specified time within which it must 
turn around dealer reports?
    Response: NMFS provides shark landings reports, by complex or 
species, on a frequent basis to ensure participants are aware of 
catches in the shark fishery. NMFS does not have a specified time frame 
as to when it provides landings reports; however, efforts are being 
made to provide more frequent shark landings updates in light of the 
final action to close seasons when a species/complex quota has reached 
80-percent of their quota.
    Comment 5: NMFS should stick to its existing reporting system 
rather than create a new one.
    Response: NMFS will not institute a new reporting system for shark 
dealers or fishermen in this final rule.
    Comment 6: NMFS should not allow sharks to be listed as 
unclassifieds and, if dealers continue to report unclassifieds, they 
should have their permits revoked. Unclassified sharks should not be 
counted against the sandbar shark quota because the sandbar shark quota 
for the research fishery is already miniscule.
    Response: Current regulations require that all sharks landed be 
identified and reported at the species-level. This final action adds 
language to clarify this requirement. While reporting sharks as 
``unclassified'' violates the regulations, and NMFS has recently 
completed shark identification workshops to improve shark dealers' 
identification skills, NMFS must account for unclassified shark 
landings to produce timely and accurate shark landings reports and 
because this data is used in stock assessments. Under this final action 
NMFS will use species composition data from the observer reports 
outside the shark research fishery to determine which proportion of 
unclassified sharks should be deducted from the appropriate quotas 
(i.e., sandbar, non-sandbar LCS, SCS, and pelagic sharks). This 
methodology is consistent with how unclassified sharks are treated in 
stock assessments. Shark dealers that continually report sharks as 
unclassified will be reported to NOAA Office of Law Enforcement and may 
face enforcement action.
    NMFS proposed counting all unclassified sharks from shark dealer 
reports as sandbar sharks to provide dealers with an incentive to 
identify sharks to the species level because if the quota for sandbar 
sharks were filled, they would no longer be able to purchase sandbar 
sharks. However, NMFS believes that allocating landings to the 
appropriate complex/species based on observer data is a more accurate 
means of accounting for unclassified landings. Furthermore, NMFS is 
concerned that counting all unclassified sharks as sandbar sharks may 
result in the shark research fishery closing prematurely.
    Comment 7: NMFS received a comment stating that a dealer had 
inadvertently reported all sharks landed in the past as sandbar sharks 
and that they knew of no dealers that identify sharks at the species 
level.
    Response: All dealers are required to report shark landings at the 
species level. NMFS instituted a requirement to attend shark 
identification workshops to assist dealers in properly identifying 
sharks in order to obtain more accurate landings data.
    Comment 8: NMFS received a comment wondering how the stock 
assessments can use the dealer data because of the lack of species-
level landings data for sharks.
    Response: Many dealers do report at a species-specific level. 
However, not all do. Thus, stock assessment scientists assign 
unclassified sharks to a species/complex group based on species 
composition data from the observer program. Regional and temporal 
species composition data attained from observed trips are summarized 
and applied to the unclassified sharks to estimate the proportion that 
should be assigned to respective quotas and complexes.
    Comment 9: NMFS received a comment in support of the workshops for 
shark identification because dealers have observed a drastic reduction 
in the number of sharks that are not being identified properly.
    Response: NMFS is encouraged by the results of the shark 
identification workshops for dealers. Better shark identification 
should lead to more accurate landings data, which should improve the 
quality of data used in stock assessments.
    Comment 10: NMFS received several comments on the ``dealer'' 
definition (i.e., who is required to have a dealer permit), including: 
NMFS should provide the current definition of a shark dealer; the 
current definition is satisfactory; the proposed dealer definition is 
appropriate; the first receiver cannot be the shark dealer; an 
intermediary on land is needed solely for transport; and, the 
definition should take into account multiple transfers.
    Response: The current definition of a shark dealer is a person that 
receives, purchases, trades for, or barters for Atlantic sharks from a 
fishing vessel of the United States (50 CFR 635.4(g)(2)). When NMFS 
implemented the shark identification workshops, many dealers were 
confused as to whether they needed to attend a workshop because they 
buy sharks from another dealer, who buys sharks from a fishing vessel. 
Because the sharks originally came from a fishing vessel, these 
secondary dealers had obtained a shark dealer permit. To clarify who 
needs to attend the workshops and to aid enforcement, this final action 
modifies the definition of shark dealers and is modified from the 
proposed definition based on public comments. Specifically, the final 
action clarifies that shark dealer permits are required only for 
``first receivers.'' The definition of a ``first receiver'' at 50 CFR 
635.2 is ``entity, person, or company that takes, for commercial 
purposes (other than solely for transport), immediate possession of the 
fish, or any part of the fish, as the fish are offloaded from a fishing 
vessel of the United States, as defined under Sec.  600.10 of this 
chapter, whose owner or operator have been issued or should have been 
issued a valid permit under this part.''
    Comment 11: Can federally permitted dealers buy state landed 
sharks? Do federally permitted dealers have to report state landings?
    Response: The current regulations at 50 CFR 635.31(c)(4) state that 
federal dealers may purchase a shark only from an owner or operator of 
a vessel that has a valid commercial federal permit for shark, except 
that federal dealers may purchase a shark from an owner or operator of 
a vessel that does not have a commercial federal permit for shark if

[[Page 40673]]

that vessel fishes exclusively in state waters (i.e., no federal 
commercial shark permit). Federal dealer permit holders must report all 
sharks landed, including those from state waters, and cannot purchase 
any sharks, caught in state or Federal waters, once the Federal shark 
fishing season is closed. Additionally, on May 6, 2008, the Spiny 
Dogfish and Coastal Shark Board of ASMFC voted to require all state 
dealers to obtain a federal shark dealer permit. As such, when the 
ASMFC Coastal Shark FMP is fully finalized and implemented, expected in 
2009, state shark dealers from Maine to Florida will be required to 
obtain a federal shark dealer permit and attend shark identification 
workshops.
    Comment 12: NMFS received a comment questioning the mechanism that 
requires dealers to report on time.
    Response: All federally permitted shark dealers are required to 
submit a dealer report on a bimonthly basis. Failure to do so could 
result in enforcement action.
    Comment 13: NMFS should implement the strongest possible 
restrictions to ensure prompt and reliable reporting by dealers, within 
24 hours if possible. Landings of 300 to 500-percent of allowable 
quotas, even if subtracted in subsequent seasons, are simply not 
acceptable and do not reflect the close attention and precautionary 
action required to achieve sustainable shark fisheries.
    Response: Accountability measures for quota overharvests are 
necessary. The TAC has been reduced considerably and overharvests are 
accounted for over time. Importantly, the final action includes closing 
the fishery for a particular species when 80-percent of the quota is 
reached with five days notice upon filing in the Federal Register in 
order to reduce the likelihood of overharvests. NMFS will also send out 
e-mail notices and conduct outreach regarding closures upon filing in 
the Federal Register, giving fishermen five days to be notified of a 
closure. Reduced retention limits and other effort control measures are 
expected to reduce fishing mortality in the shark fishery. In addition, 
under the final action, NMFS is changing the reporting requirements for 
shark dealers so that shark dealer reports must be received by NMFS 
within 10 days after the reporting period ends. This will ensure 
timelier reporting and potentially avoid overharvests.
    Comment 14: NMFS received several comments regarding excess shark 
landings in state waters and NMFS' coordination with various states, 
including: NMFS should preempt the State of Louisiana or others as 
necessary pursuant to authority provided in the Magnuson-Stevens Act 
(section 306(b)) if shark landings in state waters impact Federal shark 
fishery management; NMFS should recognize that Federal fishermen are 
catching adults during designated fishing seasons, while state 
fishermen are catching juveniles all year long; NMFS should allow 
Federally permitted fishermen to fish in state waters; NMFS should 
ensure that state waters are closed at the same times as Federal waters 
to protect juveniles; NMFS should consult with the states in order to 
manage fisheries better; NMFS should require states to abide by Federal 
rules; and NMFS should coordinate with the ASMFC.
    Response: Pursuant to the Magnuson-Stevens Act, NMFS has 
jurisdiction to manage fisheries in Federal waters of the Exclusive 
Economic Zone (EEZ). Landings in state waters are counted against 
Federal shark quotas because many shark species inhabit both Federal 
and state waters, and thus make up one population or stock. NMFS 
includes state landings in stock assessments for coastal sharks. This 
practice is consistent with quota monitoring and management strategies 
for many marine species.
    NMFS has been working with the State of Louisiana, and other 
states, to ensure consistent management strategies for sharks in state 
and Federal waters due to excessive landings that occurred in Louisiana 
state waters in 2007. In 2007, the State of Louisiana agreed with NMFS 
to close its state waters when the federal fishery closed during the 
third trimester of 2007. Additionally, ASMFC recently voted on final 
management measures for a coast-wide state shark plan for states in the 
Atlantic Ocean. The final measures included in the ASMFC Coastal Shark 
FMP are expected to be effective in 2009. Many of the final measures in 
the ASMFC Coastal Shark FMP are consistent with federal regulations and 
will require commercial state shark fisheries to open and close with 
federal openings and closures. The implementation of ASMFC's Coastal 
Shark FMP could potentially lead to similar measures being implemented 
in the Gulf of Mexico.
    Comment 15: NMFS should provide information in the shark landings 
update on the percentage of total shark landings that are state and 
Federal.
    Response: Federal dealers must report all landings; however, they 
are not required to differentiate which landings are purchased from 
Federal vessels and which shark products are purchased from state 
vessels (if a Federal dealer also has a state dealer permit). Current 
reporting requirements make it difficult to determine state versus 
Federal landings, although NMFS generally does not need to distinguish 
these landings because all landings are used in stock assessments and 
are counted against the federal shark quota.
    Comment 16: The stock assessment does not take the area inside 
state waters into consideration.
    Response: Stock assessments include both fishery dependent and 
fishery independent landings and effort data from state and Federal 
waters.
    Comment 17: NMFS should not mandate that all shark fishing stop 
entirely once the sandbar quota is met.
    Response: NMFS will not close both the sandbar and non-sandbar LCS 
fisheries if either quota is met. Rather, NMFS will close the sandbar 
and non-sandbar LCS quota, individually, if either fishery reaches 80-
percent of its respective quotas.
    Comment 18: The State of Florida supports decreasing the length of 
time it takes to supply NMFS with landings information used to manage 
the shark fishery. NMFS should also decrease the time it takes to make 
this information available to the public. The time required for NMFS to 
process such information should be established in a rule.
    Response: NMFS makes every attempt to provide timely reports of 
shark catches to constituents on a frequent basis in order for 
fishermen to plan their activities accordingly. However, it is also 
necessary to ensure that shark landings data are accurate prior to 
making them available to the public. NMFS will attempt to provide more 
frequent shark landings updates in the future.

7. Seasons

    Comment 1: The change to one commercial season would lead to derby 
fishing.
    Response: NMFS believes that a commercial season that opens January 
1 and remains open until 80-percent of the quota is achieved, coupled 
with the significantly reduced retention limits for directed permit 
holders, should adequately prevent derby fishing. Derby fishing is more 
likely when seasons are shorter in duration, and when retention limits 
are large enough to encourage targeting of a specific species. The 
final action results in one season, opening January 1. Additionally, 
the season is expected to remain open for most of the year as fishermen 
outside the research fishery are not expected to make trips targeting 
non-sandbar LCS because of reduced retention limits and the

[[Page 40674]]

prohibition on the retention of sandbar sharks.
    Comment 2: NMFS received several comments including a comment from 
the State of Florida regarding the proposal to open shark seasons on 
January 1, including: NMFS should consider the fact that not all shark 
species are present in all regions in equal abundance on January 1; 
July may be a more appropriate time to open the season; January 1 may 
be good for sandbar sharks but not other species; opening the season at 
another time may result in the quota being filled before sharks arrive 
in some regions; the season should be opened on January 1.
    Response: NMFS is aware of the fact that sharks are migratory and 
present in different areas, at different levels of abundance, at 
different times of the year. In this final action, NMFS will only allow 
landings of sandbar sharks by a limited number of vessels selected to 
participate in a shark research fishery. Therefore, only vessels 
participating in this fishery will be authorized to target sandbar 
sharks, and only when a NMFS-approved observer is on board. Vessels 
outside the research fishery would be allowed to keep 33 non-sandbar 
LCS for directed permit holders and 3 non-sandbar LCS for incidental 
permit holders. NMFS anticipates that this reduced retention limit will 
likely result in directed shark fishermen no longer targeting non-
sandbar LCS outside the research fishery. Rather, shark fishermen would 
be authorized to keep non-sandbar LCS incidentally caught while 
targeting other species. Given that fishermen outside the research 
fishery are not expected to target non-sandbar LCS, NMFS expects that 
the shark seasons would be open longer, and fishermen in the regions 
that have non-sandbar LCS present later in the year would still be able 
to harvest non-sandbar LCS when they are present. In addition, opening 
the season on January 1 should allow the shark fishery to overlap with 
open seasons for other non-shark species and may reduce regulatory 
discards that may occur as a result of keeping the shark season closed 
until later in the year.
    Comment 3: NMFS received numerous comments, including comments from 
the ASMFC and the State of Florida that NMFS should open the season in 
July instead of January 1 so the season would be open when sharks are 
present in all areas and to prevent fishing mortality during shark 
pupping season. Other comments included: NMFS should not allow shark 
fishing during April, May, and June as these months are when shark 
pupping occurs and state waters should be closed from May 15 through 
July 15 to protect pupping; considering the size of the quota, shark 
migration patterns, and the ASMFC closure, it is likely that the quota 
would be harvested before sharks become available to fishermen in the 
North Atlantic; beginning the fishing season on July 16 would allow the 
quota to be shared geographically; opening the fishing season in July 
would reduce mortality of pregnant females and ensure that northern 
states have access to the fishery.
    Response: Opening the season on January 1 and keeping it open until 
80-percent of a quota is achieved may result in pregnant or neonate 
sharks being landed along with other sharks. However, given the low 
retention limits for non-sandbar sharks outside the research fishery 
and because fishermen will not be allowed to retain sandbar sharks 
outside the research fishery, NMFS expects that fishermen with directed 
shark permits outside the research fishery will no longer target non-
sandbar LCS. This should reduce overall shark mortality, including 
mortality of pregnant females during pupping season. The retention 
limits should also allow fishermen to keep non-sandbar LCS that they 
catch while targeting other species. If the season is closed from April 
through June or July, vessels that land sharks while targeting other 
species will have to discard all sharks. The ASMFC is implementing a 
Coastal Shark FMP for sharks in state waters from Maine through 
Florida. Since most shark pupping occurs in state waters, NMFS feels 
the ASMFC plan may be more appropriate for addressing fishing mortality 
of pregnant females or neonate sharks. However, now that the ASMFC plan 
is expected to be implemented in 2009, NMFS may modify the season 
closure in the future as a result of the ASMFC shark plan.
    Comment 4: NMFS should provide more advance notice of season 
openings because fishermen have had a hard time planning how much bait 
they need to buy, planning for freezer spaces, etc.
    Response: NMFS must complete proposed and final rulemaking prior to 
the establishment of shark seasons. Under any final action establishing 
an annual shark season, NMFS will open the fishing season on or about 
January 1 of each year (except 2008). The season will likely remain 
open longer than usual, dependent upon available quota. Rulemaking in 
the Federal Register prior to the opening of the subsequent season's 
start date (on or around January 1) will provide the available quota, 
retention limits, and other pertinent information.
    Comment 5: NMFS should implement one shark fishing season.
    Response: NMFS is implementing one season, starting January 1 each 
year. This date is more likely to overlap with open seasons for other 
BLL and gillnet fisheries, and also provides fishermen a full calendar 
year to harvest available quota.
    Comment 6: NMFS should ensure that smaller amounts of shark are 
consistently available throughout the year to help increase the price 
and marketability of sharks since restaurants would know they could 
count on it year round. Currently, with such short seasons, there is 
not really a market.
    Response: Short seasons under existing trip limits may quickly 
flood markets, depressing prices for some shark products, particularly 
shark meat. Shark meat prices are more likely to be affected by the 
short seasons because there is less demand for shark meat than for 
shark fins. The majority of shark fins are exported to other countries 
and prices for shark fins tend to remain higher and more stable than 
shark meat. In the past, fishermen with directed shark permits were 
able to make profitable trips exclusively for sharks. Reduced retention 
limits and prohibition on retaining sandbar sharks outside the research 
fishery should reduce the likelihood that fishermen will make trips 
targeting non-sandbar LCS outside the research fishery. Rather, 
fishermen are more likely to harvest non-sandbar LCS incidentally while 
targeting other species. NMFS expects that a fishing season that opens 
on January 1 each year with lower retention limits will result in 
smaller quantities of shark product being available for a larger 
proportion of the year. This could conceivably increase demand and 
marketability of shark products because the availability of meat and 
fins would be more reliable throughout the year compared to the past 
when shark seasons were only open for short periods of time. This 
increased demand for shark products on behalf of wholesalers may 
translate to elevated prices received by shark fishermen for shark meat 
and fins.
    Comment 7: NMFS should elaborate on the reasons that trimesters 
were originally implemented for the commercial shark fishery. 
Trimesters may still be necessary to reduce fishing mortality.
    Response: Trimesters were originally implemented as a way to 
increase the availability of shark meat throughout the year while also 
reducing fishing mortality during peak pupping seasons and addressing 
other bycatch concerns. This final action implements significant

[[Page 40675]]

measures to reduce fishing mortality of sharks(predominantly by 
modifying quotas, retention limits, and species authorized to be landed 
in commercial and recreational fisheries) and also implements measures 
that are expected to result in small amounts of shark meat to be 
available in the markets year-round.
    These final measures should reduce the mortality of pregnant 
females. Furthermore, the closed area off the coast of North Carolina, 
which is important habitat for dusky and sandbar sharks, will continue 
to be in effect. NMFS does not expect that fishermen will be able to 
make a profitable trip ``targeting'' sharks with the preferred 
retention limits and because of the fact that sandbar sharks may not be 
possessed outside the shark research fishery. The resulting incidental 
fishery will likely translate into significant benefits to shark 
populations as a whole while also eliminating the need to maintain 
trimesters.
    Comment 8: Closing the season when landings reach the 80-percent 
threshold should be sufficient, but can the other 20-percent of the 
quota be filled in five days? NMFS should consider closing the shark 
fishery at 90 to 95-percent of the quota and consider re-opening a 
season if the quota has not been caught for a given season.
    Response: NMFS requested public comment specifically on setting 80-
percent as a threshold for closing the fishery because it allows a 
substantial percentage of the allowable harvest to occur, yet allows a 
sufficient buffer to prevent overharvest from the time the 80-percent 
is reached until the time NMFS can actually close the fishery. NMFS' 
goal is to allow fishermen to harvest the full quota without exceeding 
it in order to maximize economic benefits to stakeholders while 
achieving long-term conservation goals and preventing overfishing. 
Closing the fishery via appropriate rulemaking, while providing at 
least a five-day notice of a closure (upon filing of the final rule 
with the Office of the Federal Register and the availability of the 
final rule for public inspection), should allow fishermen to complete 
fishing trips that have already been initiated and/or provide fishermen 
the chance to catch additional quota if they embarked on additional 
trips prior to the closure. As mentioned previously, the reduced 
retention limits and the fact that fishermen outside the research 
fishery will not be allowed to land sandbar sharks is expected to 
reduce the number of trips targeting non-sandbar LCS and keep the shark 
season open year-round. Additionally, NMFS must take into account state 
landings that continue to occur after closure of the Federal fishery.
    NMFS believes that, given the two week reporting period for dealer 
reports and the potential for late reporting, closing the fishery when 
landings reach 90- to 95-percent of the quota would likely result in 
overharvests. Overharvests will result in reduced quotas in the future 
since all overharvests will be accounted for when establishing 
subsequent seasons and quotas.
    Comment 9: NMFS should allow more time prior to closing the 
seasons. A 5-day notice will not work for PLL fishermen because their 
trips are long.
    Response: PLL gear is not the primary gear-type used to harvest 
sharks. Most sharks are landed on BLL or gillnet gear on trips that 
last several days. Fishermen deploying PLL gear generally target tunas 
and/or swordfish depending on the time of the year and location. 
Therefore, NMFS does not expect the rulemaking process for closing the 
shark fishery, which would provide at least a five day notice upon 
filing of the final rule with the Office of the Federal Register and 
the availability of the final rule for public inspection, to have 
adverse impacts on vessels deploying PLL gear. Before the 1999 FMP for 
Atlantic Tunas, Swordfish, and Sharks, the shark fishery was closed via 
appropriate rulemaking with five days' notice; therefore, there is a 
precedent for this amount of time prior to taking action.
    Comment 10: NMFS should consider a 3-day warning prior to closing 
seasons to prevent overharvests, consistent with the notice granted in 
the bluefin industry. This would better assure that quotas are not 
exceeded. If NMFS does not decrease the closure time to three days, and 
instead keeps five days, NMFS should adopt the trigger of 70-percent 
rather than 80-percent.
    Response: In closing the fishery through appropriate rulemaking, 
NMFS will provide at least a five day notice for closures to maximize 
the proportion of the quota that fishermen may harvest without 
exceeding the quota and to allow time for notifying fishermen of a 
closure. When the final rule is filed with the Office of the Federal 
Register and available for public inspection, NMFS will send out e-mail 
notices and other outreach materials to notify the public of the 
fishery closure within at least 5 days. NMFS anticipates that the 
notice will publish in the Federal Register approximately one day after 
filing, and then the fishery would officially close no earlier than 
five days from the original filing date. NMFS believes closing the 
fishery for individual species or species complexes with at least five 
days notice upon filing in the Federal Register is adequate to prevent 
overharvests. Historically, shark trips have been 1-4 days. Therefore, 
a minimum of five days' notice should be adequate because it should 
give fishermen enough time to complete trips that are already in 
progress. Significant reductions in retention limits and the fact that 
fishermen outside the research fishery cannot retain sandbar sharks 
should also reduce the potential for overharvests in the period between 
meeting the 80-percent threshold and when the fishery is actually 
closed a minimum of five days later.
    Comment 11: NMFS should predict how long the season should remain 
open to fill the quota based on past catch rates.
    Response: In recent years, seasons have been set based on available 
quota, past catch rates, and other considerations. Given the final 
action, NMFS feels that continuing this practice may continue to result 
in significant overharvests and may not be the best strategy for 
ensuring that sandbar, dusky, and porbeagle shark populations rebuild. 
Overharvests in 2006 and 2007 may be indicative of past catch rates not 
being appropriate indicators of future catch rates because of the fact 
that in those years, catch rates were greater and the quota was 
smaller, leading to overharvests. In addition, significant changes in 
quotas, authorized species, and retention limits would further 
complicate establishing seasons in advance.
    Comment 12: NMFS needs to analyze the length of trips that land 
sharks and base the time needed to notify the fishery on the length of 
those trips.
    Response: Observer data indicate that most trips targeting sharks 
last between 1-4 days depending on the region, season, and amount of 
sharks that are landed. However, this duration corresponds to past 
retention limits that are being reduced substantially for directed 
permit holders. Five days was selected as a reasonable minimum amount 
of time for fishermen to get word about a fishery closure and either 
finish a current trip without discarding dead sharks, or initiate a 
trip for another species prior to the closure while keeping the ability 
to land sharks incidentally. NMFS anticipates that the significant 
reduction in retention limits and the prohibition on retaining sandbar 
sharks outside the research fishery will result in most fishermen 
targeting other species and incidentally landing non-sandbar LCS.

[[Page 40676]]

    Comment 13: NMFS needs to look at past data to determine whether a 
80-percent threshold is adequate to prevent overharvests based on how 
much quota is caught after the seasons.
    Response: NMFS selected the 80-percent threshold for closing the 
season, with a minimum of five days' notice upon filing of the final 
rule with the Office of the Federal Register, because it should ensure 
that the majority of the quota is harvested without exceeding the 
quota. Giving fishermen the opportunity to harvest most of the quota 
within a given season is important because the final action carries 
forward only underharvests for species that are not overfished, 
experiencing overfishing, or of unknown status.

8. Regions

    Comment 1: NMFS received several comments regarding regions. 
Comments in favor of maintaining three regions under the status quo 
included: NMFS should assess the impacts of moving to one region; NMFS 
should describe the rationale for moving to one region; NMFS should not 
implement one region; having one region ignores the stock assessments 
and the temporal nature of the fishery; NMFS should implement separate 
permits, separate fishing zones, and separate quotas, so that fishermen 
in one zone are not penalized for a quota overharvest that occurs in 
another zone; the ASMFC requests a minimum of two management regions 
(Gulf of Mexico and Atlantic States) to ensure equitable and 
biologically sound geographic distribution of quotas; a one-region plan 
could reduce or eliminate any quota for Atlantic States if Gulf of 
Mexico states overharvest; the Gulf States do not have coordinated 
management and have overharvested in excess of 200-percent in recent 
years; under one management region, the ASMFC would have reduced or 
zero quotas for years subsequent to Gulf overharvests.
    NMFS also received several comments opposed to maintaining the 
three regions, including: NMFS should either divide quota equally among 
regions or have one region since quotas are so low; Gulf of Mexico and 
South Atlantic stocks should be managed as one unit.
    NMFS received numerous comments from Texas Parks and Wildlife, the 
Gulf of Mexico Fishery Management Council, ASMFC, Mississippi 
Department of Marine Resources, and members of the general public in 
favor of maintaining more than one region. Commenters suggested reasons 
for maintaining more than one region, including: the best scientific 
evidence available indicates that the Gulf of Mexico and the South 
Atlantic stocks are separate; genetic evidence has shown separate 
stocks of some species between the Gulf and South Atlantic; shark 
management should account for separate stocks and separate the quota 
accordingly; blacktip sharks are healthy in the Gulf of Mexico; bycatch 
issues are unique to each region; and, moving to one region ignores 
stock assessments and the temporal nature of the fishery, which was 
identified during the previous amendment.
    Response: In the Draft EIS, NMFS proposed merging the status quo's 
three regions into one region to simplify quota monitoring and to 
prevent derby-style fishing and potential overharvests that could occur 
as a result of attempting to allocate smaller quotas to regional and 
trimester seasons. The impacts of establishing only one region instead 
of three were assessed in the Draft EIS for Amendment 2. The analyses 
indicated that the overall economic impacts could be negative in 
regions (i.e., North Atlantic) that do not have sharks present in their 
waters year-round if the fishery closed early in the year. The 
ecological impacts of implementing one region were expected to be 
neutral.
    Based on public comment, NMFS has decided to implement two regions, 
the Gulf of Mexico and the Atlantic, rather than one region as 
originally proposed. Maintaining two regions has several advantages, 
including: it adheres to the stock assessment for blacktip sharks which 
assessed this species separately in the Gulf of Mexico and Atlantic; it 
accounts for overharvests that occurred in the Gulf of Mexico and 
Atlantic in 2007 more equitably; it allows for unique quotas to be 
implemented in each region that account for different species 
composition in each region; and it maintains the flexibility to 
implement unique regulations in the Gulf of Mexico and Atlantic Ocean.
    The 2006 LCS assessment assessed blacktip sharks as two distinct 
populations in the Gulf of Mexico and Atlantic. Unique results were 
found for each population with the Gulf of Mexico population healthy 
and the Atlantic stock unknown. The assessment recommended maintaining 
current harvest levels in both regions. NMFS prefers measures 
consistent with the stock assessment by maintaining two regions: the 
Gulf of Mexico and Atlantic. The blacktip shark was the only species 
assessed as distinct, regional populations.
    At this time, NMFS does not issue unique permits based on geography 
within the Atlantic, Caribbean, and Gulf of Mexico. This type of permit 
was not considered during this rulemaking.
    Comment 2: NMFS should have one region because, since NMFS went 
into regions, we have been going over the quota.
    Response: There are several factors that may be the cause of recent 
overharvests. These overharvests have likely occurred because of 
increased fishing effort, inconsistent reporting on behalf of the 
dealers, and the fact that previous years' overharvests are taken off 
subsequent years' quotas resulting in smaller regional quotas. As 
quotas decrease and effort stays the same, the likelihood of 
overharvests increases. The rationale for two regions is provided in 
response to Comment 1 directly above and elsewhere in the preamble to 
this rulemaking.
    Comment 3: NMFS should describe the original reasoning for 
establishing the three regions.
    Response: The regions were established in regulations implementing 
Amendment 1 to the 1999 FMP in 2003 because of spatial differences in 
fishery practices, variable catch-per-unit-effort (CPUE) between 
regions, and to afford managers the flexibility to adjust regional 
quotas to reduce mortality of juvenile and pregnant female sharks.
    Comment 4: NMFS should create a separate region for the Caribbean.
    Response: The Caribbean is currently managed as part of the South 
Atlantic region. This final action includes the Caribbean in the 
Atlantic region. Permit data indicate that there are not any commercial 
shark fishing permits and only one shark dealer permit in the Caribbean 
region. In addition, NMFS is in the process of initiating rulemaking to 
address some of the unique aspects of Caribbean fisheries for HMS.
    Comment 5: NMFS should change the regions so that the Florida Keys 
are entirely in the South Atlantic or entirely in the Gulf of Mexico. 
The State of Florida recommends that the existing regions be 
maintained, however, both the Gulf and Atlantic coasts of Florida 
should be kept in the same region to facilitate improved management and 
enforcement.
    Response: NMFS implemented separate regions for the Gulf of Mexico 
and South Atlantic in Amendment 1 to the 1999 FMP. The existing 
boundary between the regions was adopted because it is consistent with 
the boundary defined by the Gulf of Mexico and South Atlantic Fishery 
Management Councils and by ASMFC. However, since implementing that 
boundary, NMFS has consistently considered, for quota monitoring 
purposes, any landings in the Florida Keys to be part

[[Page 40677]]

of the Gulf of Mexico region. As such, in this final action and based 
on the comments received, NMFS is matching practice with the 
regulations, and is redefining the Gulf of Mexico to ensure that catch 
near or directly south of the Florida Keys is considered to be within 
the Gulf of Mexico region. NMFS does not expect this to change fishing 
practices as logbook data indicates that most fishing in the areas 
occurs near and within the Florida Keys.

9. Recreational Measures

    Comment 1: NMFS should maintain the same standards for recreational 
and commercial fisheries. Since the commercial industry reports many 
unidentified or unclassified sharks, the commercial industry should be 
regulated based on misidentification as well.
    Response: The majority of sharks landed commercially are reported 
as unclassified by shark dealers, not fishermen. NMFS has implemented 
shark identification workshops for shark dealers which are expected to 
provide shark dealers with the knowledge and skills to properly 
identify the sharks that they purchase. Recreational fishermen 
generally do not see sharks as often as commercial fishermen targeting 
sharks. Thus, commercial fishermen may be more adept at shark 
identification.
    Comment 2: The preferred alternative would set a bad precedent in 
allowing a fishery that caused the decline in shark populations to 
continue on a limited basis, while the public cannot fish for the same 
shark species. The commercial fishermen should be allowed to catch the 
same shark species as the recreational fishermen. The ASMFC requests 
allowing recreational possession/take of all species that may be 
harvested by commercial fishermen to keep the shark fishery equitable 
to all sectors and help establish identical species groups.
    Response: The final action allows recreational permit holders to 
possess all non-ridgeback LCS and tiger sharks. These species of sharks 
have external characteristics that are easy for recreational anglers to 
properly identify. NMFS proposed to add blacktip, spinners, bull, and 
finetooth sharks to the list of prohibited shark species in the draft 
Amendment 2 to the Consolidated HMS FMP. However, based on public 
comment, NMFS decided to allow recreational anglers to land these 
sharks. NMFS is allowing recreational anglers to land these species 
because of extensive public comment that was received in favor of 
allowing recreational anglers to land these species. NMFS is not 
authorizing recreational anglers to land sandbar sharks and silky 
sharks because recreational anglers may confuse these species with 
dusky sharks, which are on the list of prohibited shark species. NMFS 
is only allowing participants in the shark research fishery to land 
sandbar sharks commercially, thus, precluding the vast majority of 
commercial fishermen from landing sandbar sharks.
    Silky sharks are authorized for landing in commercial fisheries 
because there is a higher likelihood that these sharks may be discarded 
dead than if they were landed in recreational fisheries. Moreover, 
commercial fishermen are more adept at distinguishing between silky 
sharks and sandbar or dusky sharks. Prohibiting silky sharks in 
commercial fisheries would result in more significant economic 
consequences than prohibiting them in recreational fisheries because 
commercial fishermen are allowed to sell the fins and flesh of sharks 
that are caught in accordance with applicable regulations. There is not 
a significant targeted fishery among recreational or CHB anglers for 
spinner sharks, therefore, economic impacts would be less severe among 
this group of stakeholders.
    Comment 3: The recreational and commercial sectors contribute 
nearly equivalently towards mortality of sharks, and reductions in 
mortality are absolutely necessary.
    Response: NMFS is implementing measures consistent with recent 
stock assessments to prevent overfishing and/or to rebuild stocks of 
porbeagle, dusky, and sandbar sharks. Concurrently, NMFS has decided 
not to allow increased landings of blacktip sharks in the Gulf of 
Mexico and Atlantic Ocean. Both commercial and recreational shark 
landings are included in stock assessments. While commercial fisheries 
generally comprise the majority of shark landings, recreational 
landings are also a significant component of overall shark mortality. 
Additional measures are necessary to reduce fishing mortality on 
several shark species. Modifications to quotas, authorized species, and 
retention limits are expected to prevent overfishing and to rebuild 
overfished stocks. For example, sandbar sharks will only be landed by a 
small number of commercial participants in the shark research fishery 
subject to a commercial quota that represents an 80-percent reduction 
in landings of sandbar sharks compared to previous years. Recreational 
fishermen will not be able to retain sandbar sharks due to their 
overfished status and the potential for confusion with prohibited dusky 
sharks.
    Comment 4: NMFS should consider additional alternatives for the 
recreational industry. The alternative suites contain either status quo 
or closure of all the recreational fisheries.
    Response: The analysis of recreational measures includes more 
alternatives than status quo and closing the fishery. Alternative 
suites 2 through 4 in the Amendment 2 to the Consolidated HMS FMP would 
modify the authorized shark species for recreational fishermen to 
include those that can be positively identified. These alternatives 
have been modified in the Final Amendment 2 to the Consolidated HMS FMP 
to include all non-ridgeback LCS and tiger sharks as authorized species 
in recreational shark fisheries.
    Comment 5: NMFS should describe the data or analysis used to 
justify the proposed authorized species for recreational fisheries. 
There is no precedent for ``easily-identifiable.'' NMFS needs to make 
an effort to educate anglers before assuming they cannot identify what 
they are catching. The State of Georgia commented that NMFS should only 
allow sharks without an interdorsal ridge to be landed, thereby 
improving identification and reducing confusion. The State of Florida 
indicated that sandbar and dusky sharks can easily be differentiated 
from many other shark species by the presence of an interdorsal ridge.
    Response: NMFS only included shark species that are readily 
identifiable by recreational participants who may not interact with a 
large number of sharks and therefore may not be able to accurately 
identify sharks. NMFS specifically requested public comment on the 
proposed list to be authorized for recreational participants and has 
modified the final list as a result. The final measures allow any non-
ridgeback LCS, tiger sharks and the current list of pelagic and SCS to 
be landed by recreational anglers. The absence of an interdorsal ridge 
and/or the distinctive black vertical stripes on tiger sharks should 
allow recreational anglers to determine if a shark may be possessed or 
not. NMFS intends to disseminate information for recreational permit 
holders on HMS regulations and external characteristics for positive 
identification of authorized shark species.
    Comment 6: The recreational fishery should be subject to 100 
percent observer coverage.
    Response: Recreational permit holders can request to take an 
observer onboard to monitor fishing activities; however, they are not 
required to carry observers.

[[Page 40678]]

Observers are placed on commercial fishing vessels as a requirement of 
the biological opinion for the shark fishery, to verify logbook and 
dealer reports, and to aid managers in understanding the fishery. To 
date, the biological opinion issued under the Endangered Species Act 
for the shark fishery has not required observer coverage in the 
recreational fishery. In addition, recreational fishing vessels are not 
required to obtain a U.S. Coast Guard safety inspection, which is a 
requirement for placing observers on commercial vessels to ensure that 
the vessels have all the required safety equipment. As such, it is 
difficult to place observers on recreational vessels.
    Comment 7: NMFS received several comments regarding outreach 
efforts on shark identification to the recreational sector, including: 
NMFS should release an identification guide similar to the Rhode Island 
Sea Grant guide; recreational fishermen care about positive 
identification; NMFS should send all permit holders the $20 shark 
identification book instead of shutting down the fishery; NMFS should 
explore identification workshops for recreational fishermen; NMFS needs 
to find better ways to educate the public to ensure positive 
identification; NMFS should use educational tools to improve 
identification; and, recreational fishermen may confuse porbeagle 
sharks with shortfin makos.
    Response: In 2003, NMFS, in conjunction with Rhode Island Sea 
Grant, released a guide to Sharks, Tunas, and Billfishes of the U.S. 
Atlantic and Gulf of Mexico. While the guide is currently out of print, 
additional copies are being printed and should be available by late 
summer. Additional materials containing similar information are 
currently available at: http://seagrant.gso.uri.edu/bookstore/index.html.
    NMFS is also working on additional outreach materials such as a one 
page quick identification guide to improve identification and 
understanding of regulations among recreational anglers. These outreach 
materials would be either free or available at a low cost to ensure 
that all permit holders have access to them. NMFS has recently 
implemented shark identification workshops for shark dealers and other 
interested members of the public. While not mandatory for recreational 
anglers, participants in any HMS sector or the general public may 
attend. These workshops provide anglers, dealers, and commercial 
fishermen with the ability to properly identify shark carcasses.
    Comment 8: NMFS received several comments, including comments from 
the State of Florida, the State of Mississippi, the Gulf of Mexico 
Fishery Management Council, Texas Parks and Wildlife Department, South 
Carolina Department of Natural Resources, and the ASMFC regarding the 
shark species that should be included on the list of recreationally 
authorized shark species. Comments included: spinner, silky, bull, and 
blacktip sharks should be included in the list of species authorized 
for recreational anglers because fishers are capable of accurately 
identifying shark species; common thresher sharks should stay on the 
list of species authorized for recreational anglers; NMFS should not 
propose restricting recreational anglers from keeping blacktip sharks 
in the Gulf of Mexico if the stock is not overfished or experiencing 
overfishing; spinners are not endangered, nor are they depleted; the 
status of spinner or bull sharks has not been assessed, therefore, 
prohibiting the capture of blacktip and bull sharks would be an overly 
risk-averse strategy considering that the status of blacktip sharks (at 
least in the Gulf of Mexico) is satisfactory; identification is only a 
problem for species that cannot be identified externally; eliminating 
the retention of a healthy species of sharks, based on the assumption 
that they might be misidentified is subjective and is definitely not 
sound fishery management practice; NMFS is mandated under the Magnuson-
Stevens Act (NS 1) to strive for optimum sustainable yield and blacktip 
status in the Gulf of Mexico is healthy; NMFS' stated reason is concern 
over angler misidentification with sandbar and dusky sharks, however, 
these species may be readily identified by their interdorsal ridges; 
the list is acceptable, except for oceanic whitetip and hammerhead 
sharks. Do not allow the recreational catch of these two species as 
scientific studies show they are in decline; allowing the recreational 
harvest of blacktip and spinner sharks would therefore have no negative 
impact on sandbar and dusky sharks; silky sharks can be confused with 
dusky sharks and should remain off the list that recreational anglers 
may land; NMFS should not prohibit recreational anglers from landing 
bull, blacktip, bull, spinner, and finetooth sharks because these 
species represent 37-percent of recreational shark landings off the 
State of Florida.
    Response: The final action will allow recreational anglers to 
possess all non-ridgeback LCS, including blacktip sharks, tiger sharks, 
and the currently allowed SCS and pelagic sharks. The presence/absence 
of an interdorsal ridge and other morphological characteristics, 
coupled with outreach materials on shark identification for 
recreational anglers, are likely to reduce the incidence of 
misidentification in this fishery. Common threshers would also continue 
to be authorized for landing in recreational shark fisheries as these 
were not proposed to be prohibited for recreational anglers. NMFS had 
originally proposed that blacktip and spinner sharks not be authorized 
in recreational fisheries because the morphological differences between 
the two sharks are not obvious to anglers who are unfamiliar with 
sharks, and because NMFS wanted to ensure that recreational anglers 
were only landing sharks that could be positively identified. Based on 
extensive public comment in support of being able to land blacktip, 
spinner, and bull sharks and the ability of anglers to use the 
interdorsal ridge (or lack of the interdorsal ridge) to more positively 
identify sharks, the final action allows these sharks to be landed. 
Further, NMFS will enhance outreach efforts to ensure that recreational 
shark fishermen are positively identifying the sharks they catch.
    Comment 9: NMFS should address the fact that recreational anglers 
in Delaware, Maryland, and New Jersey are catching lots of pregnant 
thresher sharks during certain times of the year.
    Response: NMFS is concerned about recreational anglers catching 
pregnant female thresher sharks. Recreational fisheries do not have 
closed seasons like commercial fisheries; therefore, pregnant females 
may be caught and possessed by recreational anglers. However, a minimum 
size limit of 54 inches fork-length and a bag limit of one shark 
(except bonnethead and Atlantic sharpnose) per vessel per trip should 
minimize the potential for negative impacts to populations of common 
thresher sharks. Furthermore, this species may be afforded additional 
protection by shark tournaments that limit the sharks that may be 
landed to those that are actually eligible to win a prize category.
    Comment 10: NMFS received a comment suggesting that hammerheads may 
need to be prohibited for recreational anglers because the IUCN 
considers them threatened and it is not easy to distinguish between 
scalloped and great hammerhead sharks.
    Response: NMFS is not implementing management measures specific to 
scalloped or great hammerhead sharks in recreational fisheries at this 
time. NMFS has not yet reviewed stock assessments on these species. A 
stock assessment has been completed for

[[Page 40679]]

hammerhead sharks as a dissertation for a graduate student; however, 
the assessment has not undergone extensive peer-review which is 
necessary prior to NMFS making any decisions about or based on the 
assessment.
    The IUCN determined that the scalloped hammerhead is ``lower risk, 
near threatened'' with an unknown population trend in 1994. In 2001, 
the IUCN listed great hammerhead sharks as ``endangered'' with a 
decreasing population trend. The recreational bag limit (1 vessel/day) 
and minimum size (> 54 inch fork length) should preclude overfishing of 
the scalloped hammerhead shark species. NMFS intends to improve 
outreach materials available so that recreational anglers would have 
the tools necessary to distinguish between scalloped and great 
hammerheads.
    Comment 11: NMFS should consider the impacts of recreational 
fishing for sharks and its implications on populations. Specific 
comments received include: shark tournaments since the 1980s are 
responsible for a 50-percent reduction in dusky sharks and a 35-percent 
reduction in sandbar sharks; the stock assessment does not say that 
recreational anglers have a significant impact on the shark stocks; the 
recreational angling public has a virtually imperceptible impact on LCS 
because recreational anglers practice catch and release and have very 
conservative size limitations.
    Response: NMFS is aware of the practices of recreational fisheries 
and their impacts on shark populations. Recreational data have been 
used in past stock assessments for both sandbar and dusky sharks. Thus, 
the impact of recreational mortality on shark stocks has been included 
in these stock assessments. NMFS has implemented a size and bag limit 
for recreational fishermen to limit effort and protect sharks that have 
not reached sexual maturity. The Final Amendment 2 to the Consolidated 
HMS FMP provides recreational landings by species.
    Comment 12: NMFS should increase enforcement of recreational 
regulations because participants are not adhering to the 54-inch 
minimum size for sharks.
    Response: NMFS intends to take steps to improve outreach to 
recreational shark anglers to ensure that the public is aware of all 
the regulations in place for recreational shark fisheries.
    Comment 13: NMFS should not allow shark tournaments that give 
monetary prizes. The impacts of such tournaments are unknown and public 
perception of them is poor.
    Response: HMS tournament participants are required to possess the 
necessary HMS permits, to register their tournaments, submit data if 
selected, and abide by all HMS and tournament regulations for sharks. 
The shark tournaments are subject to the recreational shark bag and 
size limits which are quite restrictive in the recreational fishery (1 
shark over 54 inches per vessel per day) and, therefore, it is not 
likely that the majority of fishing mortality is occurring in shark 
tournaments. Specific measures concerning tournaments were not 
proposed, or analyzed, in this rulemaking.
    Comment 14: NMFS should not propose that recreational fishermen 
cannot land sandbars and then account for recreational landings by 
removing the recreational landings (27 mt dw) in establishing the 
commercial quota for sandbar sharks.
    Response: Accounting for the recreational landings (27 mt dw) 
between 2003-2005 is necessary to ensure rebuilding of sandbar sharks 
and that all fishing mortality is within the TAC. Sandbar sharks can be 
landed in recreational fisheries outside of NMFS jurisdiction (i.e., 
state waters), could be landed illegally in federal waters, or may die 
as a result of post-release mortality. If NMFS did not account for 
recreational and other mortality of sandbar sharks, efforts to prevent 
overfishing and rebuild sandbar sharks would be compromised.
    Comment 15: Why were the effects of Katrina to the Texas 
recreational industry not analyzed?
    Response: Consistent with NS1 of the Magnuson-Stevens Act, NMFS is 
required to implement management measures to rebuild overfished shark 
species and prevent overfishing. The impacts to the recreational shark 
fishing industry as a result of Katrina were not specifically analyzed 
in this rulemaking. Rather, the impacts of the proposed measures that 
would affect the recreational shark fishing industry in states impacted 
by Hurricane Katrina were evaluated.
    Comment 16: NMFS should require that recreational anglers practice 
only catch and release and report any and all interactions with 
protected species.
    Response: Alternative suite 5 proposed prohibiting the possession 
of sharks in both commercial and recreational fisheries, but it was not 
the preferred alternative because of the adverse economic impacts that 
would be incurred by these fisheries. The stock status of many shark 
species does not warrant a requirement to only catch and release all 
shark species landed recreationally. The bag limit and minimum size 
requirements are sufficient to conserve shark stocks, and NMFS does not 
believe a prohibition on landing all sharks in recreational fisheries 
is warranted at this time.
    Comment 17: A typo was made regarding allowable recreational 
species. On the HMS website copy of the proposed Amendment, the spinner 
shark was included on the recreational list. On a slide prepared for 
the public hearings, which was formerly posted on the HMS website, the 
spinner shark was not included on the recreational list. NMFS should 
update the draft document on the HMS website so that the commenting 
public would have access to the proper information necessary to 
adequately prepare their comments.
    Response: The typographical errors in the draft Amendment 2 to the 
Consolidated HMS FMP have been addressed. An errata sheet describing 
these errors was posted to the HMS website on November 19, 2007, prior 
to the end of the public comment period and is available at: http://www.nmfs.noaa.gov/sfa/hms/sharks/Amendment%202/Errata_Sheet_for_DEIS.pdf.
    Comment 18: NMFS should consider the cumulative impacts on CHB 
operators who also fish for sharks in light of measures that have been 
imposed on this industry for other fisheries such as snapper. Snapper 
business is down 75-percent and proposed measures for the shark 
recreational fishery are ``the nail in the coffin for CHB''; and, NMFS 
is violating NEPA by limiting recreational alternatives and through 
limited cumulative impact analysis by not analyzing impacts such as 
those caused by red snapper regulations.
    Response: NEPA requires all Federal agencies to consider and 
analyze a range of alternatives to achieve the stated objective and 
analyze cumulative impacts of proposed actions. NMFS considered the 
cumulative impacts by analyzing permits that participants held in other 
fisheries and considering the impacts on those other fisheries. Based 
on public comment, NMFS is modifying the shark species that can be 
retained by recreational anglers to include all non-ridgeback LCS and 
tiger sharks. This modification should allow CHB operators to continue 
to retain blacktip, spinner, finetooth, and bull sharks which had 
originally been proposed to be prohibited for recreational anglers due 
to concerns about anglers' ability to positively identify these 
species.
    Comment 19: Party charter operators have to submit Vessel Trip 
Reports (VTRs) for every trip. NMFS should look

[[Page 40680]]

into those to get a handle on recreational catches.
    Response: VTR data were considered for the final rule, however, 
these data showed only four porbeagle sharks landed by party headboats. 
MRFSS and LPS are the only databases that NMFS has to track 
recreational landings. However, for some species, like porbeagle 
sharks, the timing of these programs do not necessarily capture when 
porbeagle sharks are caught by recreational fishermen in New England. 
As such, NMFS is considering ways to improve its recreational landings 
data collection. NMFS is interested in gathering more shark landings 
data from tournaments with prize categories for sharks, especially 
porbeagle sharks.
    Comment 20: NMFS received numerous comments, including one from the 
South Carolina Department of Natural Resources, stating that NMFS 
should increase the retention limit for Atlantic sharpnose per vessel 
in the for-hire fishery. Recreational fishermen cannot avoid sharpnose 
sharks and the recent stock assessment declared that they were not 
overfished or subject to overfishing.
    Response: Modifying the retention limits for Atlantic sharpnose was 
not considered in this amendment. Measures concerning Atlantic 
sharpnose sharks and other small coastal sharks (SCS) will be included 
in Amendment 3 to the HMS FMP based on recent (2007) stock assessments 
for SCS (May 7, 2008, 73 FR 25665).

10. SAFE Report and Stock Assessment Frequency

    Comment 1: NMFS should implement the preferred alternative 9 for 
SAFE report frequency, which would allow NMFS to publish a SAFE report 
by the fall of each calendar year.
    Response: NMFS is implementing alternative 9, which modifies the 
existing regulations by requiring the publication of a SAFE report in 
the fall of each year. This should allow NMFS more flexibility to 
balance other responsibilities throughout the calendar year, as 
necessary, and will give NMFS the opportunity to include data for the 
SAFE report that is typically collected at the beginning of each 
calendar year.
    Comment 2: Within the annual SAFE report, NMFS needs to correctly 
identify the overfished and overfishing status of every managed shark 
species by species, rather than by complex.
    Response: The SAFE report follows the guidelines specified for NS2 
and is used by NMFS to develop and evaluate regulatory adjustments 
under the framework procedure or the FMP amendment process. Within each 
SAFE report, NMFS lists the status determination of each stock. If the 
stock is managed within a species complex, then NMFS would report the 
status of the complex. For sharks, NMFS does not have the necessary 
information to conduct separate stock assessments for each species. 
Therefore, NMFS cannot make species-specific stock status 
determinations for every species of shark that is commercially 
harvested. Therefore, those species are managed within a species 
complex. NMFS is moving towards more species-specific management as 
available data allows, as is the case with sandbar sharks, which will 
be managed separately from the LCS complex based on measures 
implementing the Final Amendment 2 to the Consolidated HMS FMP.
    Comment 3: NMFS should implement the preferred alternative 7 for 
shark stock assessments, which would allow NMFS to conduct shark stock 
assessments at least once every five years.
    Response: Because of the time necessary to modify management 
measures consistent with stock assessments, NMFS is implementing the 
preferred alternative 7 and will conduct shark stock assessments at 
least once every five years. This should provide sufficient time for 
existing or forthcoming management measures to take effect (i.e., a few 
years) prior to the next stock assessment.
    Comment 4: NMFS received several comments in favor of the status 
quo for timing of stock assessments, including: NMFS should consider 
keeping the status quo for the timing of stock assessment for sharks; 
we are opposed to having an assessment at least once every five years; 
five years is too long to wait for an assessment; it is critical that 
stock assessments be regular and robust; NMFS should implement 
alternative 6, the status quo for the timing of shark stock 
assessments, with a mandate of stock assessments no less frequently 
than every 3 years; and, stock assessments should occur at least every 
2 to 3 years without any further delays.
    Response: Because of the time necessary to modify management 
measures consistent with stock assessments, NMFS is finalizing measures 
that increase the amount of time between stock assessments to allow 
existing or forthcoming measures to be in place and have an effect on 
the population before the next assessment takes place. In 2003, NMFS 
adopted the SEDAR process for completing shark stock assessments at the 
request of industry, environmentalists, and academics. This process 
increases the time necessary to complete a stock assessment because it 
entails three workshops where data are reviewed, stock assessment 
models are run, and results are reviewed by an outside panel. Since 
this process alone may take over a year to complete, conducting 
assessments every 2 to 3 years is not practical. Allowing stock 
assessments to be conducted at least once every five years should allow 
research suggested by the last assessment to be completed before the 
next assessment is done, thus providing the necessary data for future 
assessments. It should also allow management measures, which need to be 
in place for several years to have an effect, to begin to achieve 
management objectives before a new assessment is done. For instance, 
the last stock assessment, which was completed in 2006, included data 
through 2004. NMFS is currently developing management measures based on 
that assessment, and those new management measures would be in place 30 
days after publication of this rule. If the next stock assessment is 
conducted in 2009 (3 years from 2006), and includes data up through 
2007 or 2008, the new management measures would not have had time to 
take effect as they would not have been in place for the time series of 
data used for a 2009 assessment. Decreasing the frequency to at least 
once every five years would result in the next assessment occurring no 
later than 2011, which could consider data up through 2009 and data 
collected under the new management measures.
    Comment 5: The Georgia Coastal Resources Division believes that 
while conducting assessments every 2-3 years is too short for an 
accurate assessment, conducting stock assessments every five years is 
also too frequent for the rebuilding timeframes necessary for the 
concerned species and to evaluate the effects of management.
    Response: Alternative 7 changes the current process outlined in the 
1999 FMP by requiring stock assessments for sharks at least every five 
years instead of every two to three years. Stock assessments could 
occur more frequently; however, according to NMFS' policy adequate 
stock assessments are required at least once every five years. This 
timeframe ensures that NMFS can incorporate new data, use the best 
available data, and test the effectiveness of management measures. 
Waiting more than five years to conduct an assessment could lead to the 
need for greater changes leading to more uncertainty in the status of 
the stock and effectiveness of management.

[[Page 40681]]

11. Research Fishery/Preferred Alternative

    Comment 1: NMFS should not finalize the proposed preferred 
alternative suite 4. The sandbar shark quota should be spread over 40 
50 vessels making 1-2 trips annually rather than 5-10 vessels making 
more trips.
    Response: The final action strikes a balance between positive 
ecological impacts that must be achieved to rebuild and stop 
overfishing on depleted stocks while minimizing the severity of 
negative economic impacts that could occur as a result of these 
measures. NMFS intends to address vital research concerns via the shark 
research fishery. By allowing a limited number of historical 
participants to continue harvesting sharks, NMFS ensures that data for 
stock assessments and life history samples will continue to be 
collected. The final action also allows a small pool of individuals to 
continue to collect revenues from sharks as they have in the past. 
Increasing the number of vessels included in the shark research fishery 
would simply provide a much smaller benefit for a larger pool of 
individuals. Furthermore, having fewer vessels involved in the research 
fishery ensures less variation among vessels and also maintains more 
consistent sampling protocols. Fewer vessels in the research fishery 
would also allow each vessel to make more sets targeting sandbar sharks 
throughout the year and within each region rather than a larger number 
of vessels only making one or two trips in a particular region/season. 
The selection process will take place each year in order to maximize 
the number of potential participants.
    Comment 2: NMFS received several comments on research fishery 
vessel selection. These comments included: NMFS should select vessels 
based on a fisherman's income from the shark industry; NMFS should 
consider if a fisherman has helped with research in the past and 
consider whether or not the researchers had a positive experience; NMFS 
should consider any past violations, and if a vessel is conducive to 
research (i.e., enough deck space); captains and crew should have an 
understanding of why the research is being done, an understanding of 
the costs associated with the research, the ability to fish in multiple 
regions, and the ability to carry observers; past participation in the 
observer program and shark fishery should be considered; NMFS should 
create a point system based on criteria for selection of vessels and if 
there are more than 5-10 vessels, then a lottery should be used; NMFS 
should administer the research fishery much like they do the EFP 
program; the shark research fishery should only include directed shark 
permit holders; NMFS should increase the number of vessels in the 
research fishery and decrease the amount of sandbars each vessel may 
land; observer coverage should still happen within the research 
fishery; NMFS needs to provide clarification as to how vessels will be 
selected to participate in the shark research fishery included in the 
preferred alternative; and who will pick the fishermen for the research 
fishery?
    Response: Applications and permits for the shark research fishery 
will be administered through the HMS Exempted Fishing Permit program. 
The HMS Management Division will coordinate with NMFS scientists to 
determine research objectives. NMFS will publish an annual notice in 
the Federal Register that describes the expected research objectives, 
number of vessels needed, selection criteria, and the application 
deadline. Requested information could include, but is not limited to, 
name and address, permit information, number of expected trips to 
collect sharks, regions where fishing activities would occur, vessels 
employed, and gear used. NMFS will review all complete applications and 
rank vessels according to the ability of the vessel to meet research 
objectives, fish in the specified regions and seasons, carry a NMFS 
approved observer, and meet other criteria as published in the Federal 
Register notice. Establishing a point system or a lottery for selection 
of vessels may be considered as a means of selecting among qualified 
vessels interested in participating in a shark research fishery. NMFS 
will include the appropriate types of permit holders in the shark 
research fishery as determined by the research objectives on an annual 
basis.
    Comment 3: NMFS should allow vessels participating in the research 
fishery and collecting data to make the most of what they catch.
    Response: Non-prohibited sharks landed in the shark research 
fishery can be sold by fishermen. NMFS-approved observers onboard 
vessels in the shark research fishery will be authorized to collect any 
and all samples from any specimens retained during fishing activities 
to fulfill research goals.
    Comment 4: Quota for the research fishery should be equally 
distributed geographically.
    Response: NMFS will consider the geographic distribution of vessels 
selected to participate in the shark research fishery to reflect 
traditional participation by vessels targeting sharks and to ensure 
that data are maintained for future stock assessments. Further, equal 
geographic distribution will allocate economic benefits to all regions 
affected by measures in the final rule and ensure that samples are 
collected from sandbar and other species of sharks throughout their 
geographic range.
    Comment 5: NMFS should clearly state how the quota for sandbar 
sharks will be calculated.
    Response: The sandbar shark quota was determined by the TAC 
recommended by the sandbar shark stock assessment for the species to 
rebuild by 2070. The available quota for commercial shark fishermen 
participating in the shark research fishery (116.6 mt dw) was 
determined based on the TAC while considering other sources of sandbar 
shark mortality in recreational fisheries and dead discards that occur 
in other fisheries. This quota will be reduced to 87.9 mt dw through 
the end of 2012. Additional detail on these calculations may be found 
in Appendices A and C of the Final Amendment 2 to the Consolidated HMS 
FMP.
    Comment 6: Is NMFS going to provide flexibility regarding when and 
where vessels fish?
    Response: Research vessels will have some flexibility with regard 
to timing of trips subject to the objectives and needs of the research 
fishery. Vessels selected for, and fishing under, the auspices of the 
shark research permit will be required to take a NMFS-approved observer 
on all trips. Therefore, observer availability may limit timing of 
individual trips by vessels. Similarly, NMFS intends the quota 
available for the shark research fishery to last throughout the year so 
that samples are collected from vessels fishing in all regions and 
seasons. As such, NMFS may not place observers on all trips that vessel 
operators of qualified vessels request to ensure that the sandbar 
research and the non-sandbar LCS research quotas, neither of which have 
regions, are available throughout the year. The number of available 
trips targeting sharks will be dependant on retention limits, success 
of other vessels targeting sharks, available quota, and other 
considerations.
    Comment 7: NMFS received several comments on research fishery goals 
and science, including: NMFS should describe its data and research 
needs; a research plan needs to be developed; a research plan should be 
devised first before the vessels/fishermen are selected; and the design 
of the sandbar-oriented research fishery requires scientific input and 
oversight in order to fulfill a research mission.

[[Page 40682]]

    Response: The research goals and objectives for the shark research 
fishery are being developed with NMFS scientists. Research objectives 
may vary from year-to-year, depending on scientific needs. Several 
research needs were identified by the peer-reviewers during the LCS 
stock assessment in 2006 and provide the basis for the shark research 
fishery goals for 2008, as outlined in the FEIS. Available data on LCS 
are also presented in the data workshop summary report which is located 
on the SEDAR website: (http://www.sefsc.noaa.gov/sedar/Sedar_Workshops.jsp?WorkshopNum'11). Each year, the objectives will be 
published and made available to the public in conjunction with the 
Federal Register notice that solicits applications from fishermen 
interested in participating in the shark research fishery. Research 
topics may include, but are not limited to: target and bycatch rates 
using circle and J-hooks with unique bait combinations; sandbar age at 
first maturity and maturity ogive (which is a description of the 
proportion of the individuals that are mature at a given age); reducing 
bycatch rates of protected resources and prohibited sharks; and, life 
history of coastal sharks.
    Comment 8: NMFS received several comments about which permit 
holders should be able to participate in the shark research fishery, 
including: the research fishery should include CHB permit holders and 
NMFS should not allow incidental permit holders to apply for the 
research fishery.
    Response: The research fishery might include any types of HMS 
permits, including CHB permits, depending on the research objectives 
for a given year. These objectives, and the types of vessels that will 
be considered, will be published annually in advance of research 
activities so that fishermen with the appropriate permits may apply.
    Some of the objectives for the research fishery are to continue to 
collect sandbar shark landings data to ensure consistent time-series 
data for future stock assessments and to answer specific research 
questions concerning shark life history and mechanisms to reduce 
bycatch, among others. Incidental permit holders have contributed to 
limited landings of sandbar sharks in the past; therefore, some 
landings data for sandbar sharks from incidental permit holders in the 
shark research fishery may be warranted.
    Comment 9: NMFS should not implement a research fishery because it 
will take quota away from U.S. fishermen.
    Response: Quota will not be taken away from U.S. fishermen as a 
result of the shark research fishery; however, a reduced quota 
consistent with the recommended TAC will be implemented in this final 
rulemaking. All of the available sandbar shark quota will be harvested 
in the shark research fishery. Interested U.S. fishermen will have the 
opportunity to apply for, and participate in, this fishery which will 
allow fishermen to harvest and sell sandbar sharks.
    Comment 10: The research fishery should be limited in its first 
year (maybe 25-percent of the sandbar quota) so NMFS could figure out 
how the research fishery process would work. For the rest of the 
fishery, fishermen could then land some sandbars.
    Response: There is a limited amount of sandbar shark quota 
available compared to previous years because NMFS is implementing a TAC 
and commercial sandbar quota that are consistent with the 2005/2006 
sandbar shark stock assessment. Overharvests of sandbar sharks from 
2006 and 2007 must also be accounted for, resulting in an adjusted 
commercial sandbar quota of 87.9 mt dw between 2008-2012. Allocating a 
small portion of this reduced quota to fishermen outside the shark 
research fishery would reduce the quota available for the research 
fishery, limiting NMFS' ability to achieve research objectives.
    Comment 11: There is an inconsistency in alternative suite 4 
regarding the number of vessels that would be allowed to participate in 
the research fishery. In Chapter 2, it was stated that ``[NMFS] is not 
certain regarding the number of vessels that may participate in the 
shark research fishery'' (pg 2-8), yet in Chapter 4 (pg 4-77), it 
states ``NMFS scientists and managers would select a few vessels (i.e., 
5-10) each year to conduct the prescribed research.''
    Response: NMFS is not certain of the exact number of vessels that 
would be selected for the research fishery. The number of vessels 
selected depends on research objectives, the number of vessels that 
qualify to participate in the shark research fishery, and quota 
available. Inclusion of five to ten vessels in the draft documents 
associated with the proposed rule provided the public with an estimate 
of how many vessels may be needed, given historical retention limits 
and proposed commercial quotas, for the shark research fishery.
    Comment 12: The Georgia Department of Coastal Resources supports 
alternative suite 4 but thinks that unclassified sharks should be 
grouped as ridgeback and non-ridgeback.
    Response: NMFS proposed counting unclassified sharks as sandbar 
sharks in the draft Amendment 2 to the Consolidated HMS FMP to provide 
an incentive for shark dealers to properly identify the sharks they 
purchase to the species level. Since the commercial quota for sandbar 
sharks is the lowest, NMFS had proposed an approach that would ensure 
that overfishing of sandbar sharks did not occur by providing an 
incentive for shark dealers to properly identify what they purchase and 
not list sharks as unclassified. However, NMFS is concerned that too 
many unclassified sharks being counted as sandbar sharks may fill the 
sandbar quota and close the shark research fishery prematurely. NMFS 
will use observer reports from outside the research fishery to 
determine species/complex (i.e., non-sandbar LCS, SCS, pelagic sharks, 
sandbar sharks) from which the unclassified sharks should be deducted. 
This should result in unclassified sharks being counted from a more 
appropriate assemblage than assuming all unclassified sharks are 
sandbar sharks and may result in the shark research fishery staying 
open for a longer period of time.
    Comment 13: NMFS should implement alternative suite 4 because it 
will greatly improve data collection prior to the next SEDAR for LCS. 
It will help re-analyze the life history of sandbar sharks, especially.
    Response: NMFS prefers alternative suite 4 because it implements a 
shark research fishery that should provide a limited number of 
fishermen with the economic incentive to collect valuable scientific 
data on sharks for NMFS. NMFS will attain information from this 
research that will help future stock assessments fill in some of the 
data gaps that previous stock assessments have identified.
    Comment 14: Alternative suite 4 allows fishing to continue for 
shark species without having adequate information to responsibly do so. 
NMFS should limit shark fishing activities until the status of 
remaining (all sharks but sandbar, dusky, porbeagle) sharks has been 
determined.
    Response: NMFS is implementing measures that should reduce fishing 
mortality of sharks significantly while collecting data for future 
stock assessments. Without this data, NMFS' ability to conduct future 
stock assessments would be hampered. Currently, NMFS and other 
collaborating fishery management entities have completed stock

[[Page 40683]]

assessments for all the shark species that have ample data available.
    Comment 15: NMFS should not implement a lethal sandbar research 
fishery. NMFS should implement a tag and release research fishery.
    Response: It is not possible to gather all the necessary biological 
samples, including reproductive organs and vertebrae, without some 
shark mortality. Commercial fishermen also need some incentive to 
participate in the shark research fishery as no other compensation 
would be provided. Therefore, the shark research fishery will allow 
data collection and the sale of animals collected to reduce dead 
discards and waste.
    Comment 16: NMFS should address bycatch in alternative suite 4. 
This alternative suite is not adequate to ensure the recovery of 
depleted sandbar and dusky sharks.
    Response: This final action should ensure that fishing effort 
targeting sandbar sharks and non-sandbar LCS is reduced, consistent 
with stock assessment recommendations. This reduction in fishing effort 
should result in reductions in bycatch and target catch. Landings of 
sandbar sharks are expected to decrease by 80-percent. Discards of 
dusky sharks are expected to decrease by 74-percent. Modifications to 
retention limits, quotas, and authorized species in commercial and 
recreational fisheries are expected to decrease bycatch and landings of 
target species to a level that is consistent with recommendations of 
the 2005/2006 LCS stock assessment and provides a mechanism for 
rebuilding of sandbar and dusky sharks.
    Comment 17: Alternative suite 4 could shift effort to SCS and 
pelagics.
    Response: Fishing effort directed at SCS and pelagics may increase; 
however, these quotas are traditionally not fully utilized and are not 
being modified at this time with the exception of porbeagle sharks. The 
commercial quota for porbeagle sharks is being established, based on 
historical commercial landings, to prevent fishing effort from 
increasing while the stock is being rebuilt. Should fishing effort 
increase to the extent that the best available science indicates 
overfishing is occurring or stocks are overfished or approaching an 
overfished condition, NMFS will take additional action.
    Comment 18: The management measures in alternative suite 4 will not 
adequately prevent the quota overharvests that have historically 
occurred within this fishery.
    Response: Maintaining 100-percent observer coverage in the shark 
research fishery should enable NMFS to monitor landings in the shark 
research fishery in near real-time, reducing the likelihood of 
overharvests. Reducing retention limits outside the research fishery 
should reduce the number of non-sandbar LCS individual vessels may land 
each trip, which should prevent directed permit holders from targeting 
non-sandbar LCS. Instead, directed permit holders are anticipated to 
incidentally land non-sandbar LCS while they target other species. 
These measures, coupled with the fact that sandbar shark retention will 
be prohibited outside the research fishery, may reduce the number of 
overall trips landing sharks. Lastly, ensuring that shark dealer 
reports are received by NMFS within ten days of the 15\th\ or 1\st\ of 
every month should provide NMFS with the ability to provide more 
frequent landings updates and close the fishery if necessary to avoid 
overharvests.

12. Comments on Other Alternative Suites and Management Measures

    Comment 1: NMFS received several comments on the status quo 
alternative (alternative suite 1), including: NMFS should maintain the 
status quo; and NMFS should implement different measures because the 
status quo clearly is not working and should be abandoned.
    Response: NMFS chose not to select the status quo alternative as 
the preferred alternative because it does not end overfishing or 
implement rebuilding plans for overfished stocks as required under the 
Magnuson-Stevens Act. NMFS is implementing alternative suite 4, with 
minor modifications based on further analysis and public comment, 
because it implements quotas and retention limits necessary to rebuild 
and end overfishing of several shark species. The final action 
maximizes scientific data collection by implementing a limited research 
fishery for sandbar sharks with 100-percent observer coverage. It also 
mitigates some of the significant economic impacts that are necessary 
and expected under all alternative suites to reduce fishing mortality 
as prescribed by recent stock assessments. Thus, the final action 
strikes a balance between positive ecological impacts that must be 
achieved to rebuild and end overfishing of depleted stocks while 
minimizing the negative economic impacts that could occur as a result 
of these measures.
    Comment 2: NMFS received several comments on alternative suite 2, 
including: NMFS should not implement alternative suite 2 because it 
does not allow ILAP (Incidental Limited Access Permit) holders to land 
sandbar sharks; NMFS should implement alternative suite 2 with the 
caveats that porbeagle sharks be authorized for recreational fishermen 
and sandbars should be allowed on PLL gear; alternative suite 2 is more 
protective of sandbar sharks than preferred Alternative 4.
    Response: NMFS did not prefer alternative suite 2 because 
incidental permit holders would not be able to land any sharks, which 
could result in excessive dead discards. There would also be an 
increased reporting burden for shark dealers, which could result in 
negative economic impacts for shark dealers.
    Under alternative suite 2, porbeagle sharks would be added to the 
prohibited list for commercial and recreational fishing because 
porbeagle sharks were determined to be overfished based on the 2005 
Canadian stock assessment. In addition, porbeagle sharks often look 
similar to other prohibited species (i.e., white sharks). Therefore, 
placing porbeagle sharks on the prohibited species list would prohibit 
landings and help rebuild this overfished species. It may also stop 
commercial and recreational landings of other look-alike shark species, 
such as white sharks, which are also prohibited.
    Alternative suite 2 is not more protective of sandbar sharks than 
alternative suite 4 (the final action). In fact, it could result in 
more sandbar shark discards compared to alternative suite 4 (43.2 mt dw 
compared to 13.1 mt dw). In addition, allowing directed shark permit 
holders to fish for sandbar sharks with PLL gear, especially in the 
mid-Atlantic closed area, could increase discards and overall mortality 
of dusky sharks. Thus, sandbar sharks would be prohibited on PLL gear 
under alternative suite 2 to offer dusky sharks more protection. NMFS 
estimated that prohibiting the retention of sandbar sharks on PLL gear 
under alternative suite 2 could reduce dusky discards to 8.6 mt dw per 
year.
    This final action also reduces quotas and retention limits to 
rebuild depleted shark stocks and end overfishing of several shark 
species, while minimizing regulatory discards. In addition, the final 
action should allow for the collection of fishery dependent data for 
future stock assessments and biological samples for shark research, 
while also allowing a few shark fishermen to continue to fish and 
generate revenues from shark landings as they have in the past.
    Comment 3: NMFS received several comments regarding alternative 
suite 3, including: NMFS should support a year-round incidental fishery 
where all participants could keep a few sharks

[[Page 40684]]

(including sandbars) to avoid dead discards; NMFS should eliminate the 
directed shark permit; if NMFS allowed a bycatch industry only, prices 
for meat might increase because there would be a consistent quantity of 
sharks year-round; alternative suite 3 is best for retention limits; 
NMFS should support a revised alternative suite 3 with current 
reporting requirements and no restrictions for recreational fishermen, 
except the current species limitations.
    Response: Positive ecological impacts would likely be more 
pronounced for some species under the final action (preferred 
alternative suite 4) compared to alternative suite 3 because discards 
should be lower under alternative suite 4. For instance, sandbar 
discards under alternative suite 3 are estimated to be 23.5 mt dw per 
year, whereas under alternative suite 4, they would be approximately 13 
mt dw. In addition, dusky discards under alternative suite 3 are 
estimated as 20.4 mt dw, whereas they are only 9.2 mt dw under 
alternative suite 4. Therefore, NMFS is implementing alternative suite 
4 at this time.
    Economic impacts under alternative suite 3 would vary depending on 
permit type. For instance, the retention limits under alternative suite 
3 are higher than retention limits for incidental permit holders under 
alternative suite 4 (the final action), possibly resulting in positive 
economic impacts for incidental shark permit holders. In addition, 
under alternative suite 3, incidental and directed permit holders would 
have the same retention limit. This would presumably remove the 
difference and value between permit types, which may benefit incidental 
permit holders, but may be detrimental to directed permit holders. 
Under the final action, directed and incidental permit holders outside 
the research fishery would have different non-sandbar LCS retention 
limits based on permit type. This would allow the distinction and 
difference in value between directed and incidental permit types to 
continue. In addition, directed and incidental permit holders outside 
the research fishery would not be able to retain sandbar sharks. This 
would most likely result in fishermen no longer directing fishing 
effort on sharks outside the research fishery, which could have 
negative economic impacts on these fishermen. However, unlike 
alternative suite 3, in the final action, there will be a small 
research fishery, which would allow a few shark fishermen to direct 
effort on sharks and sell their catch. This research fishery would also 
allow the continuation of fishery dependent data collection to help 
with future stock assessments. Therefore, NMFS is implementing 
alternative suite 4 at this time.
    Retention limits under alternative suites 3 and 4 were designed to 
keep the shark fishery open longer than it has been in the past. This 
could allow shark products to be available year-round, and possibly 
avoid gluts in the market, as were experienced in the past when a 
majority of the shark products were available for a short period of 
time.
    In addition, under alternative suites 3 and 4, NMFS would change 
the dealer reporting requirements, requiring dealers to mail reports so 
that they are received by NMFS within 10 days after the reporting 
period ends. This change should ensure more timely reporting and 
potentially avoid overharvests. Under alternative suite 3, NMFS 
considered a list of species that recreational anglers could land; this 
list did not include blacktip, bull, or spinner sharks because of 
potential misidentification issues with overfished shark species. 
However, based on public comment, NMFS is revising this list to allow 
recreational fishermen to land these species. The diagnostic 
characteristic for recreational anglers will be the lack of an 
interdorsal ridge. Recreational fishermen would be allowed to land non-
ridgeback LCS plus tiger sharks. This characteristic should allow 
fishermen to land blacktip, bull, and spinner sharks, but not 
mistakenly land sandbar or silky sharks, which have an interdorsal 
ridge and are often mis-identified as dusky sharks. Therefore, given 
public comment and the revision in the allowable species for 
recreational anglers, NMFS is implementing alternative suite 4 at this 
time.
    Comment 4: NMFS should not use the economic and historical 
significance of the directed fishery as a basis for selecting 
alternatives. NMFS did not prefer alternative suite 3 because ``it 
diminishes the economic and historical significance of the directed 
fishery...'' (72 FR 41400).
    Response: NMFS did not select alternative suite 3 as the preferred 
alternative because the available sandbar and non-sandbar LCS quota 
would have been spread out over all directed and incidental permit 
holders, providing an extremely limited quota to a large number of 
fishermen. As described above in the response to comment 3 in this 
section, NMFS did not think this would be the best approach to rebuild 
the fishery. In addition, directed permit holders would have had the 
same retention limit as incidental permit holders, which would have 
diminished the value of directed shark permits. Under the final action, 
NMFS is establishing a small research fishery where a small proportion 
of the directed shark fleet will be able to fish and harvest all shark 
species, except for prohibited sharks. In addition, NMFS evaluated 
retention limits of non-sandbar LCS for fishermen operating outside the 
shark research fishery. NMFS believes it is appropriate to preserve 
differences between directed and incidental permits and set separate 
retention limits based on permit type, allowing directed permit holders 
a higher retention limit than incidental permit holders. This affords 
directed permit holders, who presumably paid more for their directed 
shark permit and 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. Thus, in the final action, NMFS is establishing 
retention limits of 33 non-sandbar LCS for directed permit holders and 
3 non-sandbar LCS retention limit for incidental permit holders.
    Comment 5: All permit holders should be allowed to keep 
incidentally-caught sandbar sharks. NMFS should allow an incidental 
fishery, year-round, for all commercial permit holders.
    Response: NMFS considered an alternative where all fishermen would 
be able to keep incidentally caught sandbar sharks under alternative 
suite 3. However, NMFS is implementing alternative suite 4 because it 
establishes a small shark research fishery where the sandbar quota 
would be harvested. This research fishery was not proposed under 
alternative suite 3, which would have compromised NMFS' ability to 
collect fishery dependent data needed for future stock assessments. 
This research fishery would allow NMFS to collect scientific data on 
sandbar sharks that is essential for future stock assessments. In 
addition, a few fishermen would be allowed to have some economic 
benefit from the sale of shark products. Spreading the sandbar shark 
quota among all fishermen with shark permits would not collect the data 
NMFS needs to produce accurate stock assessments and would result in 
low retention limits fleetwide. Therefore, NMFS is implementing 
alternative suite 4, which should end overfishing of depleted stocks 
while also mitigating negative economic impacts that would occur as a 
result of these measures.
    Comment 6: NMFS received several comments regarding alternative 
suite 5, including: NMFS should close the shark fishery, considering 
the poor status of most of the species in the LCS complex, the 
uncertainty of the blacktip assessment, and the ineffectiveness of

[[Page 40685]]

NMFS shark recovery plans to date; a commercial fishery at this time is 
simply not acceptable; NMFS should support a catch, tag, and release 
(no finning) fishery only for all shark fisheries; NMFS should not 
support a commercial LCS fishery because it is not prudent or 
acceptable; NMFS should just close the sandbar and dusky fisheries; 
NMFS should be concerned about bycatch; NMFS should keep the Atlantic 
LCS fishery closed until more is known about these species; NMFS should 
narrow Alternative 5 to the commercial and large coastal fisheries; and 
NMFS should consider closing the commercial LCS fishery entirely.
    Response: NMFS does not believe that closing the entire shark 
fishery, or establishing a catch and release only fishery, is warranted 
at this time. In implementing the final action, NMFS is following the 
recommendations of these latest stock assessments and taking 
significant steps in this amendment to rebuild overfished sharks, 
reduce fishing mortality, and allow shark species to rebuild while 
minimizing economic impacts and achieving optimum yield. While 
alternative suite 5 would have the most positive ecological impacts for 
sharks, protected resources, and essential fish habitat (EFH) of the 
alternative suites considered in this document, closing the Atlantic 
shark fishery would also incur unnecessary economic impacts on U.S. 
shark fishermen, shark dealers, shark tournament operators, and others 
involved in supporting industries. There are numerous species of shark 
that are not overfished or experiencing overfishing, such as the Gulf 
of Mexico blacktip sharks, and, therefore, a full closure of the shark 
fishery is not warranted at this time. Furthermore, by closing the 
shark fishery, NMFS would lose a valuable source of fishery dependent 
data (through logbooks and the shark BLL observer program) and 
biological samples that are essential for future shark stock 
assessments. Other alternative suites considered by NMFS would strike a 
balance between ending overfishing and allowing overfished shark stocks 
to rebuild and allowing some retention of sharks to meet the economic 
needs of the shark fishing community.
    Comment 7: NMFS should reconsider a ban on BLL gear to reduce 
landings/mortality of sandbar and dusky sharks. The argument that more 
participants will transfer fishing effort to the gillnet fisheries for 
sharks is unpersuasive.
    Response: BLL gear is the primary gear used to harvest sharks by 
shark permit holders and to target non-HMS (i.e., snapper-grouper, reef 
fish, and tilefish). Many shark permit holders also maintain permits in 
these other non-HMS fisheries. Banning retention of sharks caught with 
BLL gear to reduce landings and mortality of sandbar and dusky sharks 
could result in regulatory discards of sharks because vessels deploying 
BLL gear in these other fisheries would have to discard all 
incidentally caught sharks in the pursuit of other non-HMS species with 
BLL gear. In addition, by banning BLL gear for sharks, sharks could 
only be harvested by gillnet gear, rod and reel, or PLL gear. Given 
concerns of protected species interactions in both the PLL and gillnet 
fisheries, NMFS concluded that it would not be appropriate to 
redistribute shark BLL effort into these fisheries. Therefore, NMFS is 
not banning BLL gear for sharks at this time.
    Comment 8: NMFS should analyze an alternative suite that banned 
commercial shark fisheries without restricting the recreational shark 
fishery to lessen economic impact, overall.
    Response: NMFS did not analyze a closure of only the commercial 
shark fishery, while allowing a recreational shark fishery to continue, 
due to concerns over equity to different sectors. National Standard 4 
of the MSA requires that allocation of fishery resources be fair and 
equitable to all fishermen. Since shark species that are overfished and 
experiencing overfishing are caught both in the commercial and 
recreational fisheries, NMFS considered management measures that 
applied to both sectors that would help rebuild shark stocks and end 
overfishing. Additionally, since commercial fishermen may sell shark 
products where recreational fishermen cannot, closing the commercial 
shark sector could have the largest economic impact. There are also 
numerous species of shark that are not overfished or experiencing 
overfishing, and therefore do not warrant a full closure of the 
commercial or recreational Atlantic shark fishery at this time. 
Furthermore, by closing the shark fishery, NMFS would lose a valuable 
source of fishery dependent data (through logbooks and the shark 
observer programs) that would limit future shark stock assessments. 
Therefore, NMFS is implementing alternative suite 4.
    Comment 9: NMFS should not establish a small research fishery 
because it would benefit few and disadvantage most of the shark 
fishermen. Everyone should get a chance at the quota, either through 
ITQs, or by having NMFS open up the fishery on January 1 every year and 
allowing all fishermen to catch sharks until the quota has been filled.
    Response: NMFS is implementing the final action to allow for the 
collection of scientific data with the sandbar shark quota while at the 
same time allowing a few fishermen to have some economic benefit from 
the sale of sharks and shark products. Spreading the sandbar shark 
quota among all fishermen with shark permits would not foster sandbar 
shark research. While NMFS agrees that ITQs may be beneficial to 
fishermen, it would take NMFS several years to implement an ITQ system. 
NMFS is required to end overfishing and implement rebuilding plans for 
depleted shark stocks under the strict timeframe specified in the 
Magnuson-Stevens Act. Due to the complexities and time needed to 
develop and implement ITQs, the time period mandated by the Magnuson-
Stevens Act does not allow sufficient time to establish an IFQ or LAPP 
for sharks. However, NMFS may consider developing an IFQ or LAPP for 
sharks, as well as other HMS, in the future.
    Comment 10: The Georgia Coastal Resources Division requests that 
NMFS include an alternative that would eliminate gillnets because of 
their large bycatch.
    Response: In the past, shark gillnet fishermen have had 100-percent 
observer coverage during the Atlantic Right Whale calving season and 
approximately 30-percent observer coverage during the rest of the year; 
with observers documenting all bycatch on observed trips. Based on this 
observer data, compared to other gear types, such as PLL gear, gillnet 
gear has relatively low bycatch, with finfish bycatch ranging from 1.3 
to 13.3-percent and observed sea turtle and marine mammal bycatch of 
less than 0.1-percent. Given the reduction in trip limits as a result 
of this amendment, and the four to six vessels that currently use 
strike or drift gillnet gear for sharks, NMFS does not believe there 
would be a significant increase in shark gillnet fishing pressure in 
the future and, therefore, NMFS does not feel it is appropriate to 
eliminate gillnets as an authorized gear at this time.
    Comment 11: None of the suites completely represent the interests 
of the fishery.
    Response: The alternative suites represent a range of management 
measures derived from scoping and public comment that could be 
considered based on stock assessments. NMFS assessed the impacts of the 
alternative suites, reviewed all public comments, and utilized the best 
available data to make a final analysis. NMFS is implementing 
alternative suite 4 because it implements quotas and retention limits 
necessary to rebuild and

[[Page 40686]]

stop overfishing of several shark species. Alternative suite 4 
maximizes scientific data collection by implementing a limited research 
fishery for sandbar sharks with 100-percent observer coverage. It also 
mitigates some of the significant economic impacts that are necessary 
and expected under all alternative suites to reduce fishing mortality 
as prescribed by recent stock assessments. Ultimately, the final action 
strikes a balance between positive ecological impacts that must be 
achieved to rebuild and stop overfishing of depleted stocks while 
minimizing the negative economic impacts that could occur as a result 
of these measures.
    Comment 12: We are concerned about wasteful discards under the 
proposed alternatives. NMFS should encourage responsible and targeted 
fishing by providing incentives for fishermen who can fish without 
discards or minimal discards.
    Response: NMFS believes that the reduced trip limits (which is 
approximately one quarter of the current trip limit for directed 
fishermen under the status quo) and the prohibition on retention of 
sandbar sharks outside the research fishery will likely result in 
directed fishermen no longer targeting non-sandbar LCS. Currently, most 
of the discards of dusky, sandbar, and other shark species come from 
the directed shark fishery. The only directed shark fishing that could 
occur under the final action would be within the research fishery. 
Thus, under the final action where most fishermen would target other 
species and only incidentally catch non-sandbar LCS, NMFS does not 
anticipate excessive shark discards. For instance, based on shark BLL 
observer program data, on average, non-shark BLL trips caught one 
sandbar shark per trip and 12 non-sandbar LCS. The retention limits of 
33 non-sandbar LCS per trip for directed permit holders could allow 
fishermen to keep incidentally caught non-sandbar LCS as they target 
other species. In addition, these non-shark trips typically have much 
shorter soak times (2-3 hours) compared to shark trips (12-14 hour soak 
times). Thus, it is estimated that most sandbar bycatch could be 
released alive since they would be released from longline gear in a 
relatively short period of time.

13. Science

    Comment 1: NMFS received several comments regarding the rebuilding 
timeframe for sandbar sharks stating that NMFS should take a more 
precautionary approach rather than the maximum rebuilding timeframe of 
70 years for sandbar sharks and that NMFS should consider a total ban 
on sandbar shark landings in all fisheries and an accelerated 
rebuilding timeframe of 38 years.
    Response: The 2005/2006 LCS stock assessment discussed three 
rebuilding scenarios, including: rebuilding timeframe under no fishing; 
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 Council-managed and Commission-
managed fisheries, which often catch sharks as bycatch. In addition, 
prohibiting all fishing for sharks would impact NMFS' ability to 
collect data for future management.
    The assessment assumed that 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 TAC between 2008 and 2070. Based in part on these assumptions, 
the assessment estimated that sandbars would have a 70-percent 
probability of rebuilding by 2070 with a TAC of 220 mt ww (158 mt dw)/
year and a 50-percent probability of rebuilding by 2070 with a TAC of 
240 mt ww (172 mt dw)/year. As described previously, NMFS is using 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.
    Comment 2: NMFS received a comment stating disagreement with the 
science that suggests there is a decline in sandbar sharks because the 
industry went over their quota by 300-percent in two weeks and 
therefore shark populations are healthy and abundant.
    Response: NMFS used the best available science and a rigorous SEDAR 
assessment process to make the determination that sandbar sharks are 
overfished. Recent landings and higher catch rates do not necessarily 
indicate errors in the stock assessment, or that the sandbar shark 
populations have recovered. Catch rates alone do not tell the whole 
story, nor do percentages because they may be a reflection of lower 
quotas as described in further detail below. Most catch rate series 
show stable or unclear trends in recent years, but large declines 
occurred in the late 1970s and 1980s. There has been a commercial quota 
imposed on the shark fishery since 1993; stable landings in the last 
decade most likely reflect the effect of a commercial quota, not 
necessarily a stable population. For instance, commercial catch 
declined from 162,000 individuals in 1989 to 72,600 individuals in 1993 
prior to implementation of the commercial quota. A 300-percent 
overharvest of LCS does not necessarily mean that more sharks were 
being caught or that it represents a healthy shark population; rather, 
it may be the result of significantly reduced LCS quotas due to 
overharvests in recent years and fishermen continuing to fish at effort 
levels similar to those set in 2003 and 2004.
    Comment 3: NMFS received a comment stating that fishermen/dealers 
do not properly identify what they are catching, which may have 
impacted the results of the stock assessment.
    Response: Since 1993, species-specific reporting has been required 
for shark fishermen and shark dealers. However, some fishermen and 
dealers still report sharks in more general terms as ``sharks'' or 
``large coastal sharks''. These unclassified sharks have been 
problematic for shark stock assessments. Fisheries observers are 
trained in species-specific identification and report the correct 
species-level data. Thus, NMFS uses observer data to determine species 
composition of unclassified sharks for stock assessment purposes. In 
addition, recognizing that

[[Page 40687]]

the accuracy of stock assessments and management can be improved with 
correct species identification, NMFS established mandatory shark 
identification workshops for shark dealers in regulations implementing 
the Consolidated HMS FMP. The objective of these workshops is to reduce 
the number of unknown and improperly identified sharks reported in the 
dealer reporting form, and to increase the accuracy of species-specific 
dealer reported information, quota monitoring, and the data used in 
stock assessments. These workshops train shark dealers to properly 
identify Atlantic shark carcasses. NMFS is also developing an 
identification guide of the authorized species for recreational 
anglers.
    Comment 4: NMFS received a comment stating that 80-percent of the 
landings in the VIMS dataset were sandbar sharks. The VIMS data says 
there are no large sandbar sharks. However, we see large adult sandbar 
sharks all the time, and their size has not changed over time.
    Response: The Virginia Institute of Marine Science's BLL survey 
examines catch rates for the LCS complex and sandbar sharks. This 
survey has sampled a set of seven stations since 1974. Over this time, 
the survey has collected over 5,200 sandbar sharks and more than 6,000 
LCS. Over the course of the study (1974-2004), both the sandbar shark 
and the LCS complex showed significant declines, with no signs of 
recovery for all age classes. Because of a number of factors including 
environmental changes, the gear used, random sampling scheme used, and 
experience and efficiency of fishermen, the number of sharks seen by 
one person or in one year may not be representative of the stock as a 
whole. The stock assessment included a variety of data sources, which 
taken together indicated a decline in the sandbar shark population.
    Comment 5: NMFS received several comments regarding the results of 
the 2005/2006 LCS stock assessments, specifically that 1) the science 
used in the LCS assessment for 2006 was questionable, and the stock 
assessment needs to be re-done before Amendment 2 is finalized, 2) the 
science regarding sandbar sharks is flawed, 3) that information/data 
was left out of the stock assessment, 4) that the stock assessment does 
not represent the best available science as indicated by the 
independent stock assessment specialists, and 5) that the specialists 
raised issues that needed future research.
    Response: The 2005/2006 LCS complex, sandbar, and blacktip shark 
stock assessments were conducted using the SEDAR process. SEDAR is 
organized around three workshops. The first is the data workshop, 
during which fisheries, monitoring, and life history data are reviewed 
and compiled. The second is the assessment workshop, during which 
assessment models are developed and population parameters are estimated 
using the information provided from the data workshop. The final 
workshop is the review workshop, during which independent experts 
review the input data, assessment method, and assessment products. All 
of the workshops are open to the public to ensure the assessment 
process is transparent. The review workshop panel consists of a chair 
and 2 reviewers appointed by the CIE, an independent organization that 
provides independent, expert reviews of stock assessments and related 
work. With regard to the LCS complex assessment, the review panel 
determined that the data utilized in the assessment were the best 
available at the time. For the sandbar shark assessment, the review 
panel concluded that the population model and resulting population 
estimates were the best possible given the available data. The review 
panel was also confident that the 2005/2006 sandbar shark assessment 
produced more reliable estimates of stock status than previous stock 
assessments because the SEDAR stock assessment resulted in a more 
thorough review at all stages of the process. For the blacktip shark 
assessment in the Atlantic and Gulf of Mexico, the review panel 
determined that the data were treated appropriately, were adequate for 
the models used to assess the stocks and represented the best estimates 
of assessment information currently available. As one of the Terms of 
Reference for the Review workshop, the review panel was asked to 
develop recommendations for future research for improving data 
collection and stock assessments. These research recommendations are 
customary not only during the review workshop but also during the data 
and assessment workshops and do not imply that the current research 
used in the stock assessment was insufficient. For a complete review of 
the documents used in the stock assessment, please visit http://www.sefsc.noaa.gov/sedar/Sedar_Workshops.jsp?WorkshopNum'11.
    Therefore, NMFS believes that the 2005/2006 LCS complex, blacktip 
and sandbar shark stock assessments represent the best available 
science and is not re-doing the stock assessments before implementing 
management measures in Amendment 2 to the Consolidated HMS FMP. Under 
the NS1 Guidelines, if a stock is overfished, NMFS is required to 
``take remedial action by preparing an FMP, FMP amendment, or proposed 
regulation...to rebuild the stock or stock complex to the MSY level 
within an appropriate time frame'' (50 CFR 600.310(e)(3)(ii)). 
Additionally, ``in cases where a stock or stock complex is overfished, 
[the] action must specify a time period for rebuilding the stock or 
stock complex that satisfies the requirements of section 304(e)(4)(A) 
of the Magnuson-Stevens Act.'' Therefore, consistent with the results 
of the 2005/2006 LCS complex, blacktip and sandbar shark stock 
assessment results, the Consolidated HMS FMP and the Magnuson-Stevens 
Act, NMFS is implementing final management measures to rebuild sandbar, 
dusky, and porbeagle sharks while providing an opportunity for the 
sustainable harvest of blacktip sharks and other sharks in the LCS 
complex.
    Comment 6: NMFS received a comment stating that offers from an 
industry representative to give shark fin data to NMFS were refused and 
therefore historic fin data must have been left out of the assessment.
    Response: NMFS included all data from both the shark fin and 
carcass landings recorded and submitted by Federally permitted dealers, 
as required by the regulations at Sec.  635.5(b)(1)(i), in the 2005/
2006 LCS stock assessments. In addition, during the data workshop for 
the 2005/2006 LCS stock assessments, the public, including industry and 
environmental representatives, were invited to submit data in the 
appropriate format to be considered for the stock assessment. If the 
data were not submitted in the appropriate format for assessment 
scientists to determine the applicability of the data, then they were 
not included in the assessment. The public will have additional 
opportunities to submit data during the data workshop at the next LCS 
stock assessment. This data will be considered for the stock assessment 
provided that it is submitted in the appropriate format.
    Comment 7: NMFS should have used the data from the Oregon II index 
which showed that the catch per unit effort was increasing.
    Response: The NOAA Research Vessel Oregon II data was included in 
the 2005/2006 LCS complex, blacktip, and sandbar shark stock 
assessments. The SEFSC's Mississippi Laboratories has conducted 
standardized BLL surveys from the Oregon II in the Gulf of Mexico, 
Caribbean and Southern North Atlantic since 1995. The data were

[[Page 40688]]

reviewed by the indices working group at the data workshop. This data 
showed that blacktip shark catch rates, when combined with year, area, 
and depth as variables, increased in later years in the Gulf of Mexico 
and were low with breaks in the time series in the Atlantic south of 
37[deg]. The sandbar shark catch rates in the Gulf of Mexico and 
Atlantic, combined with year, area, and depth, stayed about the same 
over the data time series. This data set was just one of many data sets 
related to abundance indices included in the 2005/2006 stock 
assessment.
    Comment 8: NMFS received a comment stating that NMFS should have 
included Mexican data of shark catches in the 2005/2006 LCS assessment.
    Response: The 2005/2006 LCS complex, blacktip, and sandbar shark 
assessments did include detailed estimates of Mexican catches of 
blacktip and sandbar shark for the period of 1962-2000. Species 
composition in weight for different sharks taken in Mexican waters was 
estimated from the data given in several Mexican studies. These were 
then used to estimate the total weight and numbers caught of each 
species in each state. In addition, annual estimates from 2000-2004 of 
illegal catches of LCS from Mexican fishing vessels fishing in the U.S. 
EEZ were also included in the 2005/2006 LCS stock assessments.
    Comment 9: NMFS received a comment stating that NMFS does not need 
to implement an amendment to the Consolidated HMS FMP until July 12, 
2009.
    Response: The mandate to rebuild overfished stocks is in section 
304(e) of the Magnuson-Stevens Act. 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 the 
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 management measures contained in 2006 Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act will be 
effective July 12, 2009.
    Comment 10: NMFS received several comments regarding conflict of 
interest, including, 1) there was a conflict of interest at the LCS 
assessment workshop and review workshop; 2) several reviewers were 
biased against the industry; 3) the stock assessment is fixed to give a 
particular outcome based on pressures by conservationists, and; 4) 
there are conflicts of interest between NMFS employees and the American 
Elasmobranch Society which should invalidate all studies and 
assessments.
    Response: NMFS does not believe that there was any conflict of 
interest on the part of participants or reviewers in the stock 
assessment process. The third workshop in the SEDAR process is the 
review workshop during which a panel of independent experts reviews the 
input data, assessment methods, and assessment products. This workshop 
is open to the public. The review workshop panel consists of a chair 
and two reviewers appointed by the CIE, an independent organization 
that provides independent, expert reviews of stock assessments and 
related work. The individuals appointed to the review panel can have no 
affiliation with any of the affected parties to the assessment, 
including government, industry, or advocacy groups. The review workshop 
chair is appointed by the CIE. Two additional reviewers, selected by 
the Shark SEDAR Coordinator for their expertise in shark stock 
assessments, were also included on the LCS shark complex review panel. 
The panel concluded that the data used in the analyses, the assessment 
approach, and overall conclusions of the assessment were valid. The 
panel provided no indication that there were any conflicts of interest 
during the assessment process.
    The American Elasmobranch Society (AES) is a non-profit 
organization that seeks to advance the scientific study of living and 
fossil sharks, skates, rays, and chimaeras, and the promotion of 
education, conservation, and wise utilization of natural resources. The 
Society holds annual meetings and presents research reports of interest 
to students of elasmobranch biology. Those meetings are held in 
conjunction with annual meetings of the American Society of 
Ichthyologists and Herpetologists each year at rotating North American 
venues. Membership in the AES is open to any person who has an interest 
in the object of AES. Members of AES include, but are not limited to, 
representatives from state and federal governmental and non-
governmental organizations, and academic institutions. NMFS employees 
are not restricted from participating in professional societies and, to 
the extent that participation aids in the collaboration, communication, 
and peer-reviews in the scientific endeavors of NOAA's mission, 
employees are encouraged to participate. While participating, employees 
must differentiate between when they are providing their own personal 
opinion or when they are acting as a representative of NOAA. Therefore, 
participation of NMFS employees in AES activities does not necessarily 
constitute a conflict of interest. In this case, there is no evidence 
from which NMFS can conclude that a conflict of interest occurred.
    Comment 11: NMFS should assess the eleven prohibited LCS species 
individually and in a public forum and the shark stock assessments 
should break out all sharks by species, especially bull sharks, 
scalloped hammerhead sharks, and tiger sharks.
    Response: NMFS continues to collect species-specific data in 
support of species-specific stock assessments. To date, NMFS has 
conducted individual stock assessments for dusky, sandbar, blacktip, 
Atlantic sharpnose, finetooth, blacknose, and bonnethead sharks. As 
additional biological and fishery-related data become available, NMFS 
will conduct other species-specific stock assessments.
    Comment 12: NMFS possessed certain species-specific knowledge 
regarding blacktip sharks that it failed to produce for the assessment.
    Response: NMFS has included all the available data that were 
presented at the data workshop and has not withheld or failed to 
produce relevant datasets. NMFS held a data workshop for the 2005/2006 
LCS stock assessment that was open to the public and requested that 
participants, including industry and environmental representatives, 
submit any relevant data or analysis in the form of working documents. 
During the assessment workshop, the assessment scientists determined 
the adequacy and appropriateness of the submitted data to be included 
in each assessment.
    Comment 13: Why did the 2005/2006 LCS stock assessment not assess 
sandbars as two separate populations, one in the Gulf of Mexico and one 
in the Atlantic similar to what was done for blacktip sharks?
    Response: During the data workshop portion of the LCS stock 
assessment, the life history working group looked at multiple studies 
and data sources to

[[Page 40689]]

summarize life history information such as stock definition, age, 
growth size at maturity, and mortality for sandbar and blacktip sharks 
that was then used in the stock assessments for each species. For 
sandbar sharks, after considering the available data, the working group 
decided that the stock definition should be the Western North Atlantic 
from southern New England to the Gulf of Mexico. Tagging studies 
suggest that one stock unit exists from Cape Cod south down the U.S. 
Atlantic coast and into the Gulf of Mexico, extending around the U.S. 
and Mexican portions of the Gulf of Mexico to the northern Yucatan 
peninsula. Genetic studies conducted on specimens from Virginia waters 
and the Gulf of Mexico further support the existence of a single stock 
that utilizes the area of Cape Cod to the northern Yucatan peninsula. 
For blacktip sharks, conventional tagging evidence suggests little 
exchange between the U.S. Atlantic Ocean and Gulf of Mexico. Genetic 
heterogeneity and female philopatry also demonstrates multiple genetic 
reproductive stocks among blacktip sharks in the Gulf of Mexico and 
South Atlantic Bight. Therefore, blacktip sharks were divided into two 
stocks: an Atlantic stock defined as extending from Delaware to the 
Straits of Florida, and a Gulf of Mexico stock designated as extending 
from the Florida Keys throughout the Gulf of Mexico.
    Comment 14: NMFS received a comment asking who the peer reviewers 
were for the 2006 dusky assessment.
    Response: In order to preserve the integrity of the independent 
review process of stock assessments, NMFS does not provide the names of 
the peer reviewers, including those used for the dusky shark 
assessment.
    Comment 15: NMFS received several comments regarding the 
continuation of shark data collection once Amendment 2 is implemented, 
asking how NMFS would conduct stock assessments with no data from 
fishermen, and stating that NMFS should obtain more data from the 
fishermen by placing scientists on fishing vessels.
    Response: This final action will establish a small research fishery 
to harvest the entire commercial sandbar shark quota. Vessels operating 
within the shark research fishery can also retain non-sandbar LCS, SCS 
and pelagic sharks. These vessels will also have 100-percent observer 
coverage. Vessels operating outside of the shark research fishery will 
only be able to retain non-sandbar LCS, SCS, and pelagic sharks. The 
vessels outside the shark research fishery will continue to be selected 
for observer coverage. Observers provide baseline characterization 
information, by region, on catch rates, species composition, catch 
disposition, relative abundance, and size composition within species 
for the large coastal and small coastal shark BLL fisheries. NMFS will 
use observer data as well as logbook and shark dealer data and 
fisheries independent data to conduct stock assessments in the future.
    Comment 16: NMFS received a comment supporting stock assessments 
that occur in the United States and not those that occur in other 
countries.
    Response: To date, the United States has not conducted a stock 
assessment on porbeagle sharks. NMFS has reviewed the Canadian stock 
assessment and found that it made full use of all fishery and 
biological information available and therefore deems it to be the best 
available science and appropriate to use for U.S. domestic management 
purposes. Canada has conducted stock assessments on porbeagle sharks in 
1999, 2001, 2003, and 2005. Reduced Canadian porbeagle quotas in 2002 
brought the 2004 exploitation rate to a sustainable level. According to 
the 2005 recovery assessment report conducted by Canada, the North 
Atlantic porbeagle stock has a 70-percent probability of recovery in 
approximately 100 years if fishing mortality is less than or equal to 
0.04. The Canadian assessment indicates that porbeagle sharks are 
overfished (SSN<INF>2004</INF>/SSN<INF>MSY</INF> = 0.15 - 0.32; SSN is 
spawning stock number and used as a proxy for biomass). However, the 
Canadian assessment indicates that overfishing is not occurring 
(F<INF>2004</INF>/F<INF>MSY</INF> = 0.83). Based on these results, NMFS 
determined that porbeagle sharks are overfished, but that overfishing 
is not occurring (71 FR 65086).
    Comment 17: NMFS received a comment asking if shark migration 
patterns have been studied along with sea surface temperatures.
    Response: Sea surface temperature is an important physical data 
parameter that is collected during investigations of shark migration 
patterns. The data workshop for the 2005/2006 LCS stock assessment 
included several studies investigating the correlation of sea surface 
temperature and shark migration patterns. A summary of these studies 
and reference citations can be found in the SEDAR 11 final stock 
assessment report available on the HMS website at http://www.nmfs.noaa.gov/sfa/hms/hmsdocument_files/sharks.htm.
    Comment 18: Does NMFS have an idea of the status of common 
threshers? It seems that they are abundant.
    Response: To date, NMFS has not conducted a species-specific stock 
assessment for thresher sharks and their status in the Atlantic Ocean 
is unknown. However, commercial landings data compiled from the most 
recent stock assessment documents indicate that approximately 307,291 
lb dw of thresher sharks have been landed from 2000 to 2005. 
Recreational landings data obtained from the recreational landings 
database for HMS indicates approximately 8,000 thresher sharks have 
been harvested in the Atlantic HMS recreational shark fishery from 1999 
to 2005.
    Comment 19: NMFS should implement the status quo, Alternative 1, 
because this is the only viable option for Amendment 2 until the 
scientific issues that have been raised are addressed and resolved.
    Response: As described in response to comments 5 and 10 in this 
section, NMFS disagrees that the results of the LCS assessment should 
be put on hold due to concerns raised about the scientific validity and 
impartiality of reviewers. NMFS has carefully reviewed and considered 
all public comments received on the assessment and determined that the 
assessment was appropriate, used the best scientific data available, 
and is scientifically valid. The 2005 Canadian porbeagle shark stock 
assessment, the 2006 dusky shark assessment, and the 2005/2006 LCS 
stock assessment determined that porbeagle, dusky, and sandbar sharks 
are overfished. Overall, the status quo alternative, which would 
maintain the current annual LCS quota of 1,017 mt dw, in conjunction 
with the management measures mentioned above, would have negative 
ecological impacts on sandbar, dusky and porbeagle sharks, as well as 
protected resources and marine mammals. The social and economic impacts 
would likely be neutral because current fishing effort would remain the 
same in the short term. In the long term, as stocks continue to 
decline, profits may decrease as costs associated with finding and 
catching these depleted stocks increases. Management measures are 
needed to rebuild overfished stocks and prevent overfishing consistent 
with the mandates of the Magnuson-Stevens Act. Therefore, maintaining 
the LCS quota of 1,017 mt dw would be inconsistent with the Magnuson-
Stevens Act and the recent LCS stock assessment that recommended a TAC 
of 158.3 mt dw for sandbar sharks in order for this species to rebuild 
by 2070. Current fishing effort, under the status quo alternative, 
would lead to continued overfishing of sandbar, porbeagle and dusky 
sharks, which would prevent these species from rebuilding in the

[[Page 40690]]

recommended timeframe. As a result, rather than implementing this 
alternative, NMFS is implementing the quotas and retention limits 
necessary to rebuild and stop overfishing of several shark species 
while maximizing scientific data collection by implementing a limited 
research fishery for sandbar sharks. The final management measures also 
mitigate some of the significant economic impacts that are necessary 
and expected under all alternative suites 2 though 5 to reduce fishing 
mortality as prescribed by recent stock assessments. The final 
management measures strike a balance between positive ecological 
impacts that must be achieved to rebuild and stop overfishing of 
depleted stocks while minimizing the severity of negative economic 
impacts that could occur as a result of these measures. By allowing a 
limited number of historical participants to continue to harvest 
sandbar sharks within the research fishery, NMFS ensures that data for 
stock assessments and life history samples would continue to be 
collected. Directed permit holders not selected to participate in the 
shark research fishery would still be authorized to land 33 non-sandbar 
LCS per vessel per trip and incidental permit holders would be 
authorized to land 3 non-sandbar LCS per trip. This should limit the 
number of trips targeting non-sandbar LCS sharks; however, it should 
still afford the opportunity to keep non-sandbar LCS that are landed 
incidentally, preventing excessive discards.
    Comment 20: The stock assessment is flawed because sandbar sharks 
do not occur west of Mobile, Alabama.
    Response: The stock assessment represents the best available 
science and included all data that was presented at the Data Workshop 
for the 2005/2006 LCS stock assessment. Included in the assessment are 
fishery independent shark surveys that were conducted from 1995-2005 
from the NOAA Research Vessel Oregon II. The results of that survey can 
be found in LCS05-06-DW-27. This survey showed the capture of sandbar 
sharks in the Gulf of Mexico, including west of Mobile, Alabama (see 
Figure 4 within LCS05-06-DW-27).

14. National Standards

    Comment 1: The proposal to prohibit blacktip sharks in the 
recreational fishery violates NS2 of the Magnuson-Stevens Act because 
the stock assessment determined that blacktip sharks in the Gulf of 
Mexico are not overfished.
    Response: NS2 requires that conservation and management measures be 
based upon the best scientific information available. NMFS believes 
that the 2005/2006 LCS stock assessment constitutes the best available 
science. The 2005/2006 LCS complex, sandbar, and blacktip shark stock 
assessments were conducting using the SEDAR process. SEDAR is organized 
around three workshops. All of the workshops are open to the public to 
ensure that the assessment process is transparent. The review workshop 
panel consists of a chair and 2 reviewers appointed by the CIE, an 
independent organization that provides independent, expert reviews of 
stock assessments and related work. With regard to the LCS complex 
assessment, the review panel determined that the data utilized in the 
assessment were the best available for analysis at the time. For the 
sandbar shark assessment, the review panel concluded that the 
population model and resulting population estimates were the best 
possible given the available data. The review panel was also confident 
that the 2005/2006 sandbar shark assessment produced more reliable 
estimates of stock status than previous stock assessments because the 
SEDAR stock assessment resulted in a more thorough review at all stages 
of the process. For the blacktip shark assessment in the Atlantic Ocean 
and Gulf of Mexico, the review panel determined that the data were 
treated appropriately, were adequate for the models used to assess the 
stocks and represented the best estimates of assessment information 
currently available.
    In the proposed rule, NMFS proposed an authorized recreational 
species list that was limited to those species that are easy to 
identify or that could not be misidentified with other species. NMFS 
originally proposed to prohibit the retention of blacktip sharks 
because of the potential for misidentification with spinner sharks, but 
specifically asked for public comment on the proposed list of 
prohibited species. As a result, based on public comments received and 
because blacktip sharks are healthy in the Gulf of Mexico, NMFS is 
implementing an amended authorized shark species list in the 
recreational fishery. The amended list is based on readily identifiable 
characters such as the lack of an inter-dorsal ridge, and allows the 
landing of non-ridgeback LCS plus tiger sharks. This amended list adds 
blacktip, spinner, finetooth, porbeagle and bull sharks to the list of 
authorized species for recreational anglers in all regions.
    Comment 2: NMFS violated NS4 of the Magnuson-Stevens Act because 
the commercial fishery will be allowed to catch their TAC and the 
recreational fishery cannot catch the same species of sharks.
    Response: NS4 requires that conservation and management measures 
shall not discriminate between residents of different States, not 
between participants in different fisheries. The commenter is concerned 
about perceived discrepancies between allocations to the recreational 
versus commercial fisheries, which is not a NS4 issue. Based on public 
comments, NMFS is modifying the list of authorized species in the 
recreational shark fishery to address concerns expressed by certain 
states that prohibiting blacktip and other sharks would unfairly 
discriminate against the recreational fishery. This amended list more 
closely aligns with the authorized species in the commercial fishery. 
NMFS would continue to prohibit sandbar and silky sharks in the 
recreational fishery due to concerns of misidentification with dusky 
sharks and because sandbar sharks are overfished. However, most of the 
commercial sector will not be able to retain sandbar sharks unless 
fishermen participate in the shark research fishery. Thus, other than 
in the shark research fishery, NMFS is prohibiting the retention of 
sandbar sharks in both the commercial and recreational sectors.
    Comment 3: NMFS violated NS8 of the Magnuson-Stevens Act because 
Port Aransas is a fishing community and was not treated as such in the 
analysis.
    Response: NS8 requires that conservation and management measures 
shall, consistent with the conservation requirements of the Magnuson-
Stevens Act (including the prevention of overfishing and rebuilding of 
overfished stocks), take into account the importance of fishery 
resources to fishing communities in order to (A) provide for the 
sustained participation of such communities, and (B) to the extent 
practicable, minimize adverse economic impacts on such communities. 
NMFS recognizes the importance of Port Aransas, TX and numerous other 
communities as fishing communities. A social impact and community 
profile assessment was completed for the 2006 Consolidated HMS FMP. 
While this community profile assessment did not focus on Port Aransas, 
TX, Chapter 9 of the Consolidated HMS FMP includes an analysis of the 
State of Texas as a whole and makes note of specific fishing 
communities within the state that are important to HMS fishing, 
including Port Aransas, TX. Because this analysis was recently 
completed, it was not repeated for the Draft EIS for Amendment 2 to the 
Consolidated HMS

[[Page 40691]]

FMP; however, it was referred to in the Draft EIS for Amendment 2 to 
the Consolidated HMS FMP. The Final EIS for Amendment 2 to the HMS FMP 
includes a recently completed report by MRAG Americas, Inc., and Jepson 
(2008) that provides updates to the social impact and community profile 
assessments for HMS dependent fishing communities. This report can be 
found in Appendix E and includes Port Aransas.
    Comment 4: NMFS violated NS9 of the Magnuson-Stevens Act because 
all the proposed prohibited species will be released and some will die 
and, thus, bycatch will not be minimized.
    Response: NS9 says that conservation and management measures shall, 
to the extent practicable, (A) minimize bycatch and (B) to the extent 
bycatch cannot be avoided, minimize the mortality of such bycatch. The 
reduced commercial shark quotas and retention limits being finalized in 
this rule are expected to greatly reduce bycatch of target and non-
target species. Because of the reduced retention limits outside the 
research fishery, it is likely that fishermen will not target non-
sandbar LCS. In addition, retention limits under the final management 
measures are such that fishermen targeting non-shark species should be 
able to retain incidentally caught non-sandbar LCS. Soak times in non-
shark BLL and gillnet fisheries are also much shorter than commercial 
shark sets; these shorter soak times should increase post-release 
survival of sandbar sharks. Regulatory discards were taken into 
consideration when determining the quotas and retention limits of 
sandbar and non-sandbar sharks both inside and outside of the research 
fishery. In addition, commercial fishermen using BLL and PLL gear are 
required to have specified safe handling and release gear on board, 
which should help release shark bycatch in such a manner as to maximize 
post-release survival. In the recreational fishery, NMFS is modifying 
the list of authorized species. This amended list more closely aligns 
with the authorized species in the commercial shark fishery. NMFS 
intends to increase educational outreach to the recreational fishing 
sector to increase shark identification to avoid misidentification with 
prohibited species. Bycatch in the recreational fishery is also 
minimized because soak times are considerably less than those in 
commercial fisheries.

15. Economic Impacts

    Comment 1: NMFS should consider an alternative suite that 
incorporates a ``phase out'' of the commercial shark industry. The 
present stock situation is untenable. Prolonged rebuilding periods are 
not acceptable. Managing a minimal yet unsustainable large coastal 
shark fishery violates NS1 of the Magnuson-Stevens Act. The costs of 
management far outweigh the benefits to a small number of fishermen who 
target sharks commercially.
    Response: NMFS did consider a suite in the Draft EIS that would 
have ended Atlantic commercial shark fishing, alternative suite 5. 
Under this proposed alternative, shark landings would be limited to 
research and the collection for public display via the HMS EFPs. 
Recreational fisheries would be catch and release only. However, after 
careful consideration of the other alternatives, this alternative suite 
was not selected.
    Longer rebuilding periods are allowed under NS1 of Magnuson-Stevens 
Act when the following conditions specified in the NS 1 Guidelines (50 
CFR 600.310(e)(4)(ii)(B)(3)):
    [i]f the lower limit is 10 years or greater, then the specified 
time period for rebuilding may be adjusted upward to the extent 
warranted by the needs of fishing communities....except that no such 
upward adjustment can exceed the rebuilding period calculated in the 
absence of fishing mortality, plus one mean generation time or 
equivalent period based on the species' life-history 
characteristics.
    NMFS recognizes that the costs of managing the shark fishery 
relative to the level of future shark fishing activity will be high. 
However, there are non-monetary benefits associated with maintaining a 
limited commercial shark industry. These benefits include the ability 
to continue gathering fishery data, maintenance of industry knowledge 
regarding shark fishing practices, and other potential cultural and 
social benefits. The final action attempts to balance the economic 
needs of fishing communities with the recommendations of recent stock 
assessments. BLL and gillnet gear will continue to be deployed in other 
fisheries that interact with sharks. Setting a retention limit that 
allows fishermen to keep a portion of these fish without targeting non-
sandbar LCS should minimize dead discards while discouraging targeting 
of non-sandbar LCS. Allocating the entire sandbar shark quota to a 
shark research fishery quota should result in collection of data that 
could improve future stock assessments and the development of 
management measures for the fishery.
    Comment 2: NMFS received several comments regarding an industry 
buyout/buyback. These comments include: the environmentalists should 
fund a buyout of the commercial shark fishery; NMFS should consider a 
buyout to provide financial relief for the shark fishermen that will be 
put out of business as a result of the preferred alternative; NMFS 
should buy all of the directed shark permits for $50,000 to $100,000 
because NMFS sold them to fishermen and created this problem; the 
industry is not in favor of a 5-percent tax to come up with buyout 
money; a buyout plan aimed at removing longline and gillnet vessels 
from the shark fishery and other fisheries would reduce fishing 
pressure, reduce bycatch and protected species interactions, and would 
address NMFS' concern that further reducing shark landing quotas will 
result in redistribution of fishing effort into other equally harmful 
fisheries.
    Response: NMFS recognizes that some participants of the Atlantic 
shark fishery expressed interest in reducing fishing capacity for 
sharks via some form of buyout program. Buyouts can occur via one of 
three mechanisms, including: through an industry fee, via 
appropriations from the United States Congress, and/or funding provided 
from any State or other public sources or private or non-profit 
organizations. NMFS cannot independently initiate a buyout. Because 
NMFS is unable to implement a buyout as a management option, a buyout 
plan is not proposed in this amendment, despite requests for 
consideration from the HMS Advisory Panel and other affected 
constituents.
    The shark fishery did develop an industry ``business plan'' that 
examined options for a buyout, which is further described in Chapter 1 
of the Draft EIS.
    Comment 3: NMFS should look at data on the number of commercial 
permit holders by state and the socio-economic impacts of the proposed 
measures on these fishermen.
    Response: NMFS examined the number of commercial permit holders by 
state. This information was presented in Table 9.1 of the Draft EIS. 
The socio-economic impacts of the preferred measures were analyzed in 
Chapters 6, 7, and 8 of the Draft EIS for Amendment 2.
    Comment 4: NMFS received several comments concerning the potential 
for severe economic impacts associated with all of the alternatives 
considered (other than status quo). Comments indicated a concern that 
many fishermen may not be able to survive economically until the next 
stock assessment. One dealer for example saw a 75-percent decrease in 
revenue in 2007 because of restrictions. The lack of a shark season in 
2008 could bring about a financial collapse of the industry. The 
industry is completely based on sandbar sharks.

[[Page 40692]]

    Response: NMFS has estimated that the alternatives considered, 
including the no action alternative, would result in economic 
consequences to the shark fishery. The severity of the economic 
consequences varies by alternative suite, with alternative suite 5, the 
complete closure of the Atlantic shark fishery, having the greatest 
economic impact. The economic impacts of the various alternative suites 
are summarized in Table 7.5 of the EIS for Amendment 2.
    NMFS acknowledges that dealer impacts could also be substantial and 
could vary significantly by dealer, depending upon how important sharks 
are to their operations.
    NMFS recognizes the importance of sandbar shark landings to the 
shark fishing sector. However, sandbar shark landings only comprised 
30-percent of the estimated total value of the shark fishery in 2005 
($602,764 in sandbar shark meat and $1,181,803 in fins, versus a total 
shark fishery revenue of $6,027,516).
    Under the Magnuson-Stevens Act, NMFS is required to develop 
management measures to rebuild overfished shark stocks and prevent 
overfishing. The final action attempts to balance the economic needs of 
fishermen and fishing communities with this requirement.
    Comment 5: NMFS should include an analysis of the negative economic 
impacts associated with prohibiting porbeagle sharks in shark 
tournaments, especially in New England. These tournaments have 
negligible impacts on porbeagle stocks. An example was provided 
regarding a tournament that has caught only 4 porbeagle sharks in the 
past 10 years.
    Response: NMFS appreciates this additional information regarding 
the importance of porbeagle sharks in tournament fisheries. Additional 
information has been incorporated into the final EIS for Amendment 2 to 
further address the potential economic impacts of a prohibition of 
porbeagle landings. Based on public comments received, NMFS selected an 
alternative suite that permits the recreational retention of porbeagle 
sharks.
    NMFS is reviewing existing data sources for recreational landings 
of porbeagle sharks. Efforts to expand recreational data collection may 
be necessary to improve information on porbeagle shark landings in 
recreational fisheries.
    Comment 6: NMFS should specify what the $1.8 million fishery-wide 
economic impacts include: recreational impacts, commercial impacts, or 
both. Recreational impacts would be significant if sandbar, bull, and 
blacktip are not authorized to be landed in the recreational fishery. 
NMFS has grossly underestimated the impact to recreational fishermen in 
this proposal.
    Response: The $1.8 million discussed for the final action is the 
estimated reduction in gross revenues from sandbar and non-sandbar LCS 
resulting from the proposed quota reductions to the commercial shark 
fishery. Impacts to the recreational shark fishing sector were also 
analyzed. For the final action, these impacts included: the negative 
economic impacts resulting from the reduced number of sharks that could 
be legally landed by recreational anglers, particularly pronounced in 
areas where blacktip sharks are frequently encountered. In addition, 
tournaments offering prize categories for sharks could also experience 
negative economic impacts as a result of not allowing six additional 
species to be retained in recreational fisheries. Due to a lack of 
information regarding the relative preferences of shark fishermen to 
retain shark species over practicing catch-and-release shark fishing, 
NMFS was unable to quantitatively estimate the economic impacts of the 
proposed recreational measures restricting the authorized list of 
species that could be retained.
    The final action allows recreational anglers to harvest blacktip, 
finetooth, bull, spinner, and porbeagle sharks.
    Comment 7: Proposed measures will result in a year-round fresh 
shark meat product. Inconsistent seasons are not good for prices and 
shark meat is currently $0.30/lb. because the market is flooded so 
quickly and then seasons are over so soon.
    Response: NMFS recognizes that moving to one season for the shark 
fishery could alleviate some of the uncertainty in the market 
associated with varying shark seasons. Depending on the intensity of 
fishing effort at the beginning of the season, it is likely that the 
final action could result in a year-round fresh shark meat market. This 
could help improve the prices received for shark meat and help offset 
some of the negative economic impacts associated with this rule.
    Comment 8: Dealers will not likely be interested in continuing to 
buy shark products when the proposed measures go into place.
    Response: NMFS acknowledges that some dealers may opt to no longer 
participate in the shark fishery. However, the information available to 
NMFS indicates that several shark dealers already handle small 
quantities of shark products and, therefore, changes in the shark 
fishery are unlikely to cause them to change their business practices. 
Reduced domestic harvest of sandbar sharks could potentially increase 
the value of harvest in the future due to reduced supplies. 
Furthermore, having the season open for a longer period of time each 
year, subject to reduced retention limits, may enhance the domestic 
shark meat market and increase prices.
    Comment 9: Closing fisheries increases the quantity of fisheries 
products imported into the United States and other countries do not 
have the conservation measures that are present in the United States.
    Response: The United States imports modest quantities of shark 
fishery products. According to U.S. Census Bureau data, the United 
States imported 459 mt of shark in 2006 with an estimated value of 
$3.41 million. In contrast, the United States exported 1597 mt of shark 
in 2006 estimated to be worth $6.17 million. The United States may be 
an important transshipment port for shark fins, which may be imported 
wet, and then processed and exported dried. The United States is, in 
fact, a net exporter of shark species. NMFS acknowledges that other 
countries may not have the same shark conservation measures as the 
United States.
    Comment 10: Commenters suggested that NMFS should implement a 
retraining program for fishermen and families that are displaced by 
this action. Others suggested fishermen reconfigure their businesses 
towards providing tourism services.
    Response: NMFS has worked with a number of other agencies/
departments to explore programs that are available to fishermen and 
other businesses affected by fishery management measures. Some of these 
include retaining programs.
    The Economic Development Administration (EDA) was created to create 
new jobs and retain existing jobs in economically stressed communities. 
Through a series of grant programs, the EDA helps distressed 
communities develop strategies to improve their own economic situation 
through a multifaceted cooperative effort. Most of the EDA activity 
affecting the fishing industry has been funded through the EDA's Public 
Works Program and the EDA's Economic Adjustment Program. The Public 
Works Program has funded port and harbor improvements. The Economic 
Adjustment Program helps communities adjust to serious changes in their 
economic situation, and proceeds from this program are generally used 
for organization, business development, revolving loan funds, 
infrastructure, and market research. Interested parties can learn more 
about these programs, including

[[Page 40693]]

eligibility requirements and contact information, by visiting the EDA 
website: http://www.eda.gov/.
    The U.S. Department of Labor's Economic Dislocation and Worker 
Adjustment Assistance Act provides funds to States and local substate 
grantees so they can help dislocated workers find and qualify for new 
jobs. It is part of a comprehensive approach to aiding workers who have 
lost their jobs that also includes provisions of the Worker Adjustment 
and Retraining Notification Act and the Trade Adjustment Assistance 
program. Workers who have lost their jobs and are unlikely to return to 
their previous industries or occupations are eligible for the program. 
This includes workers who lose their jobs because of plant closures or 
mass layoffs; long-term unemployed persons with limited job 
opportunities in their fields; and farmers, ranchers and other self-
employed persons who become unemployed due to general economic 
conditions. Services include retraining services, readjustment 
services, and needs-related payments. Interested parties can obtain 
more information about services available and contact information by 
visiting the following website: http://www.doleta.gov/tradeact/.
    Comment 11: Commenters suggested that NMFS consider giving shark 
fishermen swordfish handgear permits in order to help offset negative 
economic impacts, while also increasing swordfish landings.
    Response: NMFS did not propose changes to the swordfish handgear 
permit system, however, NMFS will take this suggestion under 
consideration for future actions. NMFS notes that the swordfish 
handgear permit is a limited access permit. Therefore, issuing new 
swordfish handgear permits may result in negative economic impacts to 
current holders of swordfish handgear permits. In addition, NMFS has 
been recently issued new regulations to revitalize the swordfish 
fishery and may consider additional measures in the future depending on 
the outcome of the current regulatory changes.
    Comment 12: NMFS should consider the compound effect of this 
Amendment and the economic hardships that have been incurred by the 
Gulf of Mexico red snapper fishing industry.
    Response: NMFS considered the cumulative impact of this Amendment 
with that of other regulatory changes in other fisheries, including the 
Gulf of Mexico red snapper fishing industry. This analysis is provided 
in Chapter 4 of the Draft EIS.
    Comment 13: If NMFS does not maintain the status quo, NMFS should 
declare an emergency disaster.
    Response: Section 312(a) of the Magnuson-Stevens Act addresses 
fisheries disaster relief. This section states:
    At the discretion of the Secretary or at the request of the 
Governor of an affected State or a fishing community, the Secretary 
shall determine whether there is a commercial fishery failure due to 
a fishery resource disaster as a result of natural causes, man-made 
causes beyond the control of fishery managers to mitigate through 
conservation and management measures, including regulatory 
restrictions (including those imposed as a result of judicial 
action) imposed to protect human health or the marine environment, 
or undetermined causes.
    All analyses for determinations (which can be at the request of a 
Governor or at the Secretary's own discretion) under section 312(a) 
must undergo a three-prong test: first, the Secretary must determine if 
there has been a commercial fishery failure; he must also determine 
that any such failure is the result of a fishery resource disaster; 
finally, the cause of that disaster must meet the articulated causes 
outlined in the statute.
    Comment 14: NMFS should look into the impact of this Amendment on 
the consumer. How much will consumer costs increase as a result of your 
action?
    Response: NMFS did not focus its analysis of the impacts of this 
Amendment on the consumer since shark is primarily exported. The 
domestic consumption of shark meat and shark fins is limited. It is 
unlikely that reduction in the production of shark fin will impact 
consumer prices in the United States. The consumption of fresh shark 
meat is somewhat limited and is not as widespread as that of other fish 
species in the U.S. market. There may be some impacts to domestic 
consumers of shark, especially sandbar sharks, as a result of the 
preferred management measures. However, it is unlikely that this 
Amendment will result in significant increases in consumer costs, 
especially given the estimates that shark meat could be landed in low 
limits year round, unlike current conditions where shark meat is 
available for only several weeks each year. Information available on 
consumer prices for shark and domestic demand of shark products is 
limited, making it infeasible to conduct a more quantitative analysis 
of the impacts on consumers.
    Comment 15: NMFS received a comment questioning whether shark 
permits will still be worth anything after the proposed management 
changes take place.
    Response: It is uncertain what shark directed and incidental 
permits may be worth after the management changes associated with this 
Amendment are implemented. It is likely that shark permits may be worth 
less as a result of quota reductions and reduced retention limits. 
However, there will still be some demand for shark permits from new 
entrants into the commercial swordfish and tuna fisheries that require 
participants to hold all three HMS permits.
    Note that under 50 CFR 635.4(a)(3), ``Limited access vessel permits 
or any other permit issued pursuant to this part do not represent 
either an absolute right to the resource or any interest that is 
subject to the takings provision of the Fifth Amendment of the U.S. 
Constitution. Rather, limited access vessel permits represent only a 
harvesting privilege that may be revoked, suspended, or amended subject 
to the requirements of the Magnuson-Stevens Act or other applicable 
law.''
    Comment 16: NMFS received comments indicating that requiring 
fishermen to land sharks with fins on will change the entire pricing 
structure. NMFS could be changing the whole valuation process here by 
requiring that sharks have their fins on.
    Response: The requirement to land sharks with their fins attached 
allows fishermen to leave the fins attached by just a small piece of 
skin so that the shark could be packed on ice at sea efficiently. 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 any excessive amounts 
of waste at the dock, since dressing the shark (except removing the 
fins) can be performed while at sea. While this will result in some 
changes in how fishermen process sharks at sea, because the fins can be 
removed quickly once the shark has been landed, NMFS expects that the 
market will continue to receive sharks in their log form. While there 
may be some changes in the way sharks are marketed and priced, it is 
unlikely that the total ex-vessel value of sharks will change 
significantly due to the requirement to land sharks with their fins 
attached.
    Comment 17: NMFS needs to reduce the number of limited access 
permits.
    Response: Reducing the number of limited access permits was not 
proposed for this Amendment because of the ramifications that such a 
reduction could have on other fisheries and the overall HMS permit 
structure. NMFS

[[Page 40694]]

chose to limit effort via management measures in this final rule 
because these measures can be implemented with greater expediency and 
improve the likelihood that fishing mortality will be reduced 
consistent with NS1. NMFS may consider reductions in the number of 
permits in future actions.

16. Miscellaneous

    Comment 1: There should not be any netting allowed in the Delaware 
Bay as this is a nursery ground for sharks.
    Response: The waters of the Delaware Bay are in state waters; 
therefore any management of sharks in Delaware Bay is conducted by the 
states of New Jersey, Delaware, and Pennsylvania. The Consolidated HMS 
FMP only regulates fisheries in Federal waters.
    Comment 2: In the ``old'' Magnuson-Stevens Act (before 
reauthorization), there was a section indicating that if NMFS reduces 
incomes by 13-percent, then fishermen are supposed to receive due 
compensation.
    Response: The current Magnuson-Stevens Act has no such provision.
    Comment 3: NMFS should allow vessel owners to keep sharks that are 
dead at haulback if observers are onboard the vessel.
    Response: NMFS did not consider modifying this provision in 
Amendment 2 to the Consolidated HMS FMP. Generally speaking, the 
observers are onboard to monitor fishing activities. It is the 
responsibility of the vessel operator and crew, not the responsibility 
of observer, to predict whether or not sharks caught during fishing 
activities would survive if released. All sharks that are not, or 
cannot be, possessed must be released in a manner that would maximize 
their chances of survival. Allowing dead sharks to be harvested only 
when observers are onboard could potentially put them in more of an 
enforcement role which is not the intent of the fisheries observer 
program. Furthermore, this might encourage fishermen to fish in a 
different manner when observers are onboard. Modifying the soak time or 
types of hooks and bait deployed to ensure that more sharks are dead at 
haulback would not provide the observer program with data that is 
representative of fishing behavior when observers are not present. 
Increasing the number of sharks that are harvested in this manner may 
have negative ecological impacts on shark populations.
    Comment 4: NMFS should consider making video copies of the shark 
identification workshops, so that those who do not have the money to 
travel may watch the presentation.
    Response: NMFS may consider alternative methods for shark dealers 
to renew their shark identification certificates as long as the 
original objectives of the identification workshops are met. 
Alternative methods may include, but are not limited to, renewing 
identification certificates via the Internet.
    Comment 5: NMFS should manage all fish caught on BLL gear 
collectively, including grouper and tilefish. When fishing for sharks, 
we cannot keep snapper, yet we have a combined fishery. These should 
not be managed separately.
    Response: The HMS Management Division is responsible for managing 
Atlantic sharks, tunas, billfish, and swordfish. Currently, Fishery 
Management Councils recommend management measures for grouper and 
tilefish to NMFS. The relevant Council or Councils depends upon the 
specific region(s) involved. NMFS may consider more cooperative 
management initiatives in the future, as necessary.
    Comment 6: Will shark fishing be closed until this Amendment is 
implemented?
    Response: Fishing for large coastal sharks will be closed through 
the second trimester. A final rule describing the seasons and quota for 
the first and second trimester of 2008 was published in the Federal 
Register on November 29, 2007 (72 FR 67580).
    Comment 7: NMFS needs to realize that fishermen are still going to 
go fishing for other species year-round. As a result, fishermen are 
going to end up killing sharks and discarding them dead. Another 
fishery is going to get more pressure as a result of these measures 
because shark fishermen are not going to stop fishing.
    Response: NMFS understands that participants in the shark fishery 
also participate in numerous other fisheries. Reductions in fishing 
mortality that result from this amendment will likely result in fishing 
effort shifting from the shark fishery to other fisheries in which 
participants maintain permits. Reduced retention limits and the fact 
that sandbar sharks will only be landed in the shark research fishery 
are expected to result in trips targeting other species. NMFS has 
devised retention limits and seasons such that fishermen targeting 
other non-shark species will be able to possess a limited number of 
non-sandbar LCS incidentally, minimizing the need to discard sharks 
dead.
    Comment 8: NMFS should clarify what the gear limitations within the 
shark research fishery are and whether or not participants would be 
able to possess sandbar sharks if they have an observer onboard.
    Response: Gear limitations within the shark research fishery will 
depend on annual research objectives. An objective of the shark 
research fishery is to continue to collect fishery-dependent data that 
reflects how the fishery operated historically. Therefore, BLL gear 
will likely be the predominant gear deployed. However, research 
objectives might also require participants to deploy alternative gear 
types to discern their feasibility and impacts on target and non-target 
catch. Vessels issued a shark research permit will only be able to 
possess sandbar sharks when they have a NMFS-approved observer onboard.
    Comment 9: NMFS should not require fishermen to fill out a logbook 
when they only use dealer data. Instead of logbooks, NMFS should use 
carbon copies of trip tickets that are submitted to dealers.
    Response: NMFS uses logbook data in addition to data collected from 
dealer reports. Logbooks provide vessel specific landings and effort 
data that are not reflected in shark dealer data. These data can be 
used by managers and scientists in a variety of ways to aid in managing 
and understanding the fishery. Sharks dealer data are used specifically 
for quota monitoring and stock assessments but are often combined and 
used with logbook data for other management purposes.
    Comment 10: NMFS should consider reducing soak time as a means of 
reducing the number sandbar shark dead discards.
    Response: NMFS has examined the regulation of soak times to reduce 
fishing mortality and dead discards, however, NMFS found that it would 
be extremely difficult to monitor and enforce soak times.
    Comment 11: NMFS should consider placing observers on all vessels 
and letting all fishermen continue to fish for sharks. That is how NMFS 
will get accurate data.
    Response: NMFS is requiring that observers are present on all trips 
within the shark research fishery. A limited number of vessels selected 
to participate in the research fishery will continue to able to fish 
for sharks, including sandbar sharks, subject to available quota. NMFS 
is also attempting to maintain adequate observer coverage outside the 
research fishery.
    Comment 12: These measures will cause a large increase in dead 
discards, which equals wasted fish and wasted money.
    Response: The final action effectively creates an incidental 
fishery for sharks.

[[Page 40695]]

The allowance for incidental landings and seasons that are open longer 
than they have been historically should minimize a large increase in 
dead discards. Dead discards could potentially increase if there were a 
reduced retention limit or if the shark season were closed for 
extensive periods during which all sharks would be discarded at sea.
    Comment 13: NMFS should consider physically enhancing habitat to 
protect these species.
    Response: Habitat enhancement does not address removal of sharks. 
Existing fishing mortality levels for sandbar and dusky sharks indicate 
that these species are experiencing overfishing and that the stocks 
have been overfished. Habitat enhancement was not considered in this 
action because, in isolation, it does not address overfishing or 
rebuilding of overfished stocks.
    Comment 14: NMFS should require shark fishermen to take the shark 
dealer identification course.
    Response: The public, including shark fishermen, is welcome to 
attend the shark identification courses provided by NMFS. It is 
currently voluntary for shark fisherman to participate in shark 
identification courses. NMFS wants to ensure that shark dealers are 
aware of how to properly identify sharks because NMFS uses information 
from shark dealer reports to monitor the quota during the fishing 
season. Further, shark dealer reports play a critical role in 
conducting stock assessments. NMFS may consider expanding the groups of 
participants required to complete these workshops in the future.
    Comment 15: The Magnuson-Stevens Act says to rebuild overfished 
stocks by 2012. NMFS should not use rebuilding schedules that require 
hundreds of years.
    Response: Longer rebuilding periods are allowed under NS1 of 
Magnuson-Stevens Act when the following conditions specified in the NS1 
Guidelines are met, which is the case with the species that are being 
rebuilt in this amendment. The regulatory text at 50 CFR 
600.310(e)(4)(ii)(B)(3) states:
    [i]f the lower limit is 10 years or greater, then the specified 
time period for rebuilding may be adjusted upward to the extent 
warranted by the needs of fishing communities....except that no such 
upward adjustment can exceed the rebuilding period calculated in the 
absence of fishing mortality, plus one mean generation time or 
equivalent period based on the species' life-history 
characteristics.
    Comment 16: NMFS should not require the public to attend 
identification workshops for sharks when shark fishing will essentially 
be banned.
    Response: While shark fishing will be substantially reduced under 
this Amendment, there will still be incidentally caught sharks. 
Accurate shark identification will be important for gathering 
information for future management.
    Comment 17: Fishermen should be allowed to keep dead dusky sharks 
on haulback because discarding dead sharks is a waste.
    Response: Dusky sharks are a prohibited species that must be 
released. NMFS has determined that dusky sharks are a prohibited 
species because their life history is not conducive to commercial or 
recreational fisheries targeting them. Dusky sharks are late-maturing 
and have very few offspring. Further, these species do not have high 
post release survival on longline gear. NMFS continues to discourage 
fishermen from targeting dusky sharks because the recent stock 
assessment indicates that dusky sharks are overfished and experiencing 
overfishing despite being listed as a prohibited species since 2000.
    Comment 18: NMFS needs to consider an exit strategy in case things 
do not work out as planned in the amendment.
    Response: NMFS believes that this Amendment allows for sufficient 
flexibility to make adjustments as conditions may change in the 
fishery. Furthermore, regulations are constantly being reviewed for 
their utility and whether or not they are meeting their stated 
objectives. Additional regulations are expected as new stock 
assessments become available.
    Comment 19: NMFS needs to improve international management with 
Mexico to manage sharks throughout their range.
    Response: NMFS is currently working through the appropriate 
international foras to improve shark management in Mexico.
    Comment 20: NMFS should consider adding a ``use it or lose it'' 
requirement on shark permits.
    Response: Measures requiring shark fishermen to demonstrate 
landings history or risk losing their commercial shark fishing permit 
were not considered in this amendment. The addition of a ``use it or 
lose it'' condition on shark permits may actually result in increased 
pressure on sharks if holders of latent permits are compelled to use 
their permits sufficiently to avoid losing them in the future.
    Comment 21: There is an inconsistency in the Draft EIS, Chapter 3 
page 16. This presents state regulations, and fails to mention that 
longline gear is also prohibited in Georgia's state waters. 
Additionally, Georgia's Small Shark Composite should have the acronym 
SSC, not SCS, which is the federal Small Coastal Sharks management 
group.
    Response: These inconsistencies have been addressed in the Final 
EIS.
    Comment 22: There is new scientific evidence that oceanic whitetip 
shark stocks have declined.
    Response: NMFS has not conducted a stock assessment for oceanic 
whitetips. NMFS will continue to work with international partners and 
ICCAT towards more species-specific assessments for pelagic sharks. 
Data may be a limiting factor, however, as there are limited landings 
data for oceanic whitetip sharks. To date, ICCAT has completed 
assessments for blue and shortfin mako sharks. There is scant data 
available on oceanic whitetip landings.
    Comment 23: The Draft EIS does little to address bycatch of 
protected species aside from the suggestion that the preferred 
alternative may provide a mechanism to conduct the field trials 
necessary to appropriately assess the efficacy of circle hooks for 
reducing bycatch and post-hooking mortality of sea turtles in the BLL 
fishery. While both the pelagic and BLL fisheries are required to carry 
tools to remove gear from turtles before they are released, there are 
no performance goals for removing gear or a requirement to use circle 
hooks for bycatch of protected species.
    Response: NMFS may consider additional management measures for 
reducing bycatch in the future. NMFS has prepared a new BiOp regarding 
the proposed actions under Amendment 2 to the Consolidated HMS FMP, 
which was released on May 20, 2008. The May 2008 BiOp concluded based 
on the best available scientific information, the proposed action is 
not likely to jeopardize the continued existence of endangered green, 
leatherback, and Kemp's ridley sea turtles; the endangered smalltooth 
sawfish; or threatened loggerhead sea turtle. The proposed actions are 
not expected to increase endangered species or marine mammal 
interaction rates. Furthermore, the BiOp concluded that the proposed 
actions are not likely to adversely affect any of the listed species of 
marine mammals, invertebrates (i.e., listed species of coral) or other 
listed species of fish (i.e., Gulf sturgeon and Atlantic salmon) in the 
action area. HMS is implementing Amendment 2 to the Consolidated HMS 
FMP consistent with the May 2008 BiOp.
    Comment 24: If Atlantic and Gulf of Mexico fisheries are to 
continue, 100-

[[Page 40696]]

percent observer coverage should be required.
    Response: In 2007 and 2008, NMFS is implementing 100-percent 
observer coverage for vessels operating in the Gulf of Mexico with PLL 
gear. Outside of this period, a statistically significant level of 
observer coverage will be used that is consistent with relevant 
Biological Opinions and other factors.
    Comment 25: Deepwater sharks need protection. This group of sharks 
is simply too vulnerable to sustain fisheries so NMFS should prevent 
the development of fisheries before any fishermen invest in them. The 
deep water shark complex needs attention and it was a major mistake to 
remove deep water sharks from the management unit as was done in 
Amendment 1 to the 1999 FMP and it should not be repeated in this 
Amendment through benign neglect.
    Response: Deepwater sharks were previously removed from the 
management unit in Amendment 1 to the 1999 FMP. There are no fisheries 
targeting deepwater sharks and no data from fisheries that catch 
deepwater sharks as bycatch. The referenced changes clarify the 
regulations by linking the definition of ``shark'' more directly to the 
definition of the shark ``management unit.'' The only regulation prior 
to this time (2003) was the ban on shark finning, however, this was 
addressed in the SFPA of 2000. NMFS will continue to collect 
information on deepwater sharks and may add them to the management unit 
or implement additional management measures to protect them in the 
future.
    Comment 26: NMFS claims that dusky bycatch will decrease, however, 
the species will nonetheless be subject to an increased non-sandbar LCS 
retention limit. This means that the actual catch of dusky sharks is 
not likely to significantly decrease. Catch of dusky sharks must be 
significantly reduced in order for the species' population to rebuild.
    Response: 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. In addition, even if NMFS stopped all shark fishing 
in the Atlantic, dusky sharks would still be caught as bycatch in BLL 
and gillnet fisheries targeting other non-shark species. Even though 
NMFS placed this species on the prohibited species list in 2000, 
discards continue. NMFS estimated a reduction in dusky mortality as a 
result of sandbar and non-sandbar LCS management actions. Based on the 
reduced quotas and trip limits, NMFS estimates that dusky shark 
mortality could 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, and 
should afford dusky sharks more protection compared to the status quo.
    Comment 27: The proposed rule does not offer protection for Small 
Coastal Sharks (SCS).
    Response: NMFS is planning to address SCS in a future FMP amendment 
based on the 2007 SCS stock assessment (May 7, 2008, 73 FR 25665).
    Comment 28: NMFS should consider impacts of gear (longline, 
gillnet) on EFH and coral reefs.
    Response: NMFS is currently developing a draft Amendment 1 to the 
Consolidated Atlantic HMS FMP to address EFH issues, including gear 
impacts on HMS and non-HMS habitat.
    Comment 29: Is a ``suite'' a new concept or term for alternatives? 
The suite format is very effective.
    Response: The term ``suite'' is used here to group regulatory 
alternatives created to address the objective of a rulemaking. The 
suite concept is used to help facilitate the communication of logical 
groupings of potential management measures that could be used in 
conjunction to address the objectives of this rulemaking. The suite 
approach also allows for a more holistic analysis of the overall 
benefits and costs associated with the major regulatory alternatives 
considered. For example, the specific quotas implemented in this rule 
also corresponds to modified retention limits, reporting requirements, 
and regions.
    Comment 30: All commercial fish profiteers should be banned from 
catching any sharks at any time.
    Response: NMFS manages commercial fisheries for authorized species 
in the Exclusive Economic Zone of the United States. Under the 
Magnuson-Stevens Act, NMFS must manage fisheries to achieve optimum 
yield and must also consider economic and social impacts on individual 
businesses and communities. Alternative suite 5 included measures that 
would have closed all shark fisheries. This alternative suite is not 
preferred because of the significant economic impacts it would have 
caused, the fact that all sharks would have to be discarded, often 
dead, and because that alternative would preclude NMFS from gathering 
biological and fishery dependent data information needed to accurately 
assess the status of the stocks.

Changes from the Proposed Rule (72 FR 41392, July 27, 2007)

    In addition to the correction of minor edits throughout, NMFS has 
made several changes to the proposed rule. These changes are outlined 
below.
    1. In Sec.  635.2, the definition of ``naturally attached'' was 
added. The definitions of ``dress'' and ``dressed weight'' were 
modified to clarify the regulation requiring commercial vessel 
operators to keep the fins on the shark carcass through offloading.
    2. In Sec.  635.2, the definition of ``first receiver'' was revised 
based on public comment and discussions with NOAA's Office of Law 
Enforcement. The revised definition matches more fully with other 
definitions of first receivers in other fishery regulations (see 50 CFR 
parts 622 and 648) and clarifies who needs to have a shark dealer 
permit.
    3. In Sec.  635.2, the definition of ``shark research permit'' was 
modified to specify that the permit is specific to the vessel and owner 
combination, not just the vessel. This change will ensure that owners 
who are chosen to participate in the shark research fishery and who are 
trying to sell their vessel, do not try to sell their shark research 
permit with their vessel, since the particular applicant was chosen by 
NMFS to conduct the research based on certain factors.
    4. In Sec.  635.5(b)(1)(i), a clarification is made that shark 
dealers must report fin weight and meat weight separately, as specified 
on the forms. Additionally, after publication of this final rule, NMFS 
intends to seek approval, pursuant to the Paperwork Reduction Act 
(PRA), to require dealers to check a box on the dealer form to indicate 
whether sharks were landed with the fins attached or not. This 
requirement would be made effective when OMB approves the information 
collection under Control Number 0648-0040. Notification of approval 
will be published in the Federal Register.
    5. In Sec.  635.21(d)(1)(iii), the definitions of the MPAs are 
modified to match the final areas recommended by the South Atlantic 
Fishery Management Council in the summer of 2007.
    6. In Sec.  635.22(c), the list of species that can be landed under 
the recreational retention limit was modified to include non-ridgeback 
species of LCS, tiger sharks, small coastal sharks, and pelagic sharks 
based on public comment. In the proposed rule, the harvest of certain 
species that NMFS felt were difficult to identify correctly, such as 
bull, spinner, and blacktip sharks, was proposed to be prohibited by 
recreational fishermen.

[[Page 40697]]

NMFS feels that the species that are finalized in this action are 
easily identified and more closely match the intent of the proposed 
regulation. Additionally, the entire paragraph was reorganized for 
clarity.
    7. Section 635.24(a) was modified to update the commercial 
retention limits based on public comment, additional analyses, and 
changes to the proposed quotas. Specifically, an adjusted retention 
limit for non-sandbar LCS from the effective date of this rule through 
2012 was added to account for overharvests in 2007. Additionally, a 
paragraph has been added to prohibit the highgrading of sharks by 
commercial fishermen based on public comment and a request from 
enforcement.
    8. In Sec.  635.27(b), the commercial quotas were modified based on 
public comment and additional analyses. Specifically, a porbeagle shark 
quota was added, unclassified sharks will be counted towards the 
appropriate species quota based on ratios in observer data and/or on 
shark dealer reporting forms, the non-sandbar LCS quota was split into 
two regions (modified from the current definition to clarify that the 
Florida Keys are located in the Gulf of Mexico region), and an adjusted 
base quota from the effective date of this rule through 2012 (five 
years) was added to account for overharvests in 2007. Future 
overharvests will generally be taken off the following year, as 
proposed. However, depending on the amount of future overharvests, NMFS 
may deduct the overharvests over several years up to a maximum of five 
years. Spreading the overharvests out should, among other things, 
ensure that the shark research fishery can continue to collect much-
needed data each year.
    Additionally, NMFS clarified the section on adjusting quotas based 
on underharvests to clarify that if a species in a particular quota 
group (e.g., non-sandbar LCS) were overfished, overfishing were 
occurring, or had an unknown status, then NMFS would not adjust the 
quota based on underharvests.
    9. In Sec.  635.28(b), the section was modified, based on public 
comment, to allow for all species groups and regions to be closed 
separately, instead of together as proposed, when the fishery is 
expected to reach 80 percent of the relevant quota.
    10. In Sec.  635.30(c)(2) and (3), sentences were added, 
corresponding to the added definitions of ``naturally attached'' and 
``dress,'' to clarify the regulation to keep all fins attached to the 
corresponding shark carcass, including the upper lobe of the tail, 
through offloading and to state specifically that no shark fins are 
allowed on a vessel unless the fins are naturally attached to a shark 
carcass.
    11. In Sec.  635.31, paragraph (c)(1) was added to clarify that 
persons may only sell sharks if both the fishery and/or region is open.
    12. In Sec.  635.32(f), additional specifics regarding the required 
items on the application and the process for issuing shark research 
permits were added based on public comment, requests by NOAA's Office 
of Law Enforcement, and requests by NMFS scientists. These specifics 
include the requirement for vessels to have complied with observer 
coverage regulations and HMS fishery regulations to be eligible for a 
shark research permit under this part. Additional clarifications on how 
NMFS will select vessels have been added.
    13. In Sec.  635.71, various prohibitions have been updated or 
modified based on the changes listed above.

Commercial Fishing Season Notification

    The 2008 adjusted commercial quotas for each shark species group is 
as follows: sandbar shark (shark research fishery only) = 87.9 mt dw; 
non-sandbar LCS = 615.8 mt dw; pelagic sharks other than blue or 
porbeagle = 488 mt dw; blue shark = 273 mt dw; porbeagle shark = 1.7 mt 
dw; and SCS = 454 mt dw. The non-sandbar LCS commercial quota is 
further split by region and fishery as follows: Atlantic region = 187.8 
mt dw; Gulf of Mexico region = 390.5 mt dw; and shark research fishery 
= 37.5 mt dw.
    On July 24, 2008, the sandbar, non-sandbar LCS, pelagic shark, blue 
shark, porbeagle shark, and SCS fisheries will open under the quotas 
noted above. All of these fisheries will remain open through December 
31, 2008, unless the quota for that shark species group (or in the case 
of non-sandbar LCS, regional area) is projected to reach 80 percent of 
its available quota. When calculating the percent of the available 
quota caught for each species and/or region, NMFS will include landings 
from January 1, 2008, through July 24, 2008. As specified in Sec.  
635.27(b)(1), once the landings for that shark species group or 
regional area reach 80 percent of its quota, NMFS will file for 
publication with the Office of the Federal Register an appropriate 
rulemaking for that shark species group that will be effective no fewer 
than 5 days from date of filing. From the effective date and time of 
the closure, until NMFS announces via a notice in the Federal Register 
that additional quota is available, the fishery for that shark species 
group and/or regional area is closed, even across fishing years.
    When the fishery for a shark species group and/or regional area is 
closed, a fishing vessel issued an Atlantic Shark LAP pursuant to Sec.  
635.4 may not possess or sell a shark of that species group, except 
under the conditions specified in Sec.  635.22(a) and (c) or if the 
vessel possesses a valid shark research permit under Sec.  635.32 and a 
NMFS-approved observer is onboard. A shark dealer issued a permit 
pursuant to Sec.  635.4 may not purchase or receive a shark of that 
species group from a vessel issued an Atlantic Shark LAP, except that a 
permitted shark dealer or processor may possess sharks that were 
harvested, off-loaded, and sold, traded, or bartered, prior to the 
effective date of the closure and were held in storage. In the case of 
non-sandbar LCS, during a regional fishing closure, a fishing vessel 
issued an Atlantic Shark LAP pursuant to Sec.  635.4 and operating in 
region(s) closed to shark fishing may not possess or sell a shark of 
that species group, except under the conditions specified in Sec.  
635.22(a) and (c). A shark dealer issued a permit pursuant to Sec.  
635.4 and located in the closed region may not purchase or receive a 
shark of that species group from a vessel issued an Atlantic Shark LAP, 
except that a permitted shark dealer or processor may possess sharks 
that were harvested, off-loaded, and sold, traded, or bartered, prior 
to the effective date of the closure and were held in storage. Under a 
closure for a shark species group and/or regional closure, a shark 
dealer issued a permit pursuant to Sec.  635.4 may, in accordance with 
state regulations, purchase or receive a shark of that species group if 
the sharks were harvested, off-loaded, and sold, traded, or bartered 
from a vessel that fishes only in state waters and that has not been 
issued a Shark LAP, HMS Angling permit, or HMS CHB permit pursuant to 
Sec.  635.4. Additionally, under a closure for a shark species group 
and/or regional closure, a shark dealer issued a permit pursuant to 
Sec.  635.4 may purchase or receive a shark of that species group if 
the sharks were harvested, off-loaded, and sold, traded, or bartered 
from a vessel issued a valid shark research permit (per Sec.  635.32) 
that had a NMFS-approved observer on board during the trip during which 
sharks were collected.

Classification

    The Assistant Administrator for Fisheries determined that Amendment 
2 to the Consolidated HMS FMP is necessary for the conservation and 
management of the Atlantic shark fishery and is consistent with the 
Magnuson-Stevens Act and other applicable laws.

[[Page 40698]]

    NMFS prepared a FEIS for this FMP amendment. The FEIS was filed 
with the Environmental Protection Agency on April 11, 2008. A notice of 
availability was published on April 18, 2008 (73 FR 21124). In 
approving the FMP amendment, NMFS issued a Record of Decision (ROD) on 
June 6, 2008, identifying the selected alternatives. A copy of the ROD 
is available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule contains a collection-of-information requirement 
subject to the PRA and which has been approved by OMB under Control 
Number 0648-0471. Public reporting burden for the HMS EFP, SRP, display 
permit, shark research permit, and letter of authorization information 
collection is estimated to average 2 hours per scientific research 
plan; 40 minutes per application, including the shark research permit 
application; 15 minutes per request for amendment to the EFP; 1 hour 
per interim report; 2 minutes per ``no catch'' report; 40 minutes per 
annual report; 5 minutes per departure notification regarding 
collection of display animals; 10 minutes per notification call for 
observer coverage for the shark research fishery; and 2 minutes per tag 
application. These burden estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    This rule also contains revisions to collection of information 
0648-0040. The revisions are subject to review and approval by OMB 
under PRA. Currently, this collection of information is under review at 
OMB for revisions other than those contained in this rule (73 FR 18473, 
April 4, 2008). Once OMB approves the revisions in that rule, NMFS will 
submit a PRA package to OMB for approval regarding the addition of a 
check box on the dealer form. This check box would allow the dealer to 
note whether the shark fins were attached to the shark at landing or 
not. NMFS does not expect that the addition of a check box regarding 
shark fins would add to the reporting burden. NMFS will publish a 
document in the Federal Register to announce the effective date of the 
information collection.
    Send comments regarding these burden estimates or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS (see ADDRESSES) and by e-mail to <a href="/cdn-cgi/l/email-protection#9fdbfee9f6fbc0cdf0ecebf4faeddff0f2fdb1faf0efb1f8f0e9"><span class="__cf_email__" data-cfemail="feba9f88979aa1ac918d8a959b8cbe91939cd09b918ed0999188">[email protected]</span></a>, or 
fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    With the release of the proposed rule on July 27, 2007, NMFS 
determined that the management measures in this rule will be 
implemented in a manner that is consistent, to the maximum extent 
practicable, with the enforceable policies of the approved coastal 
management programs of states with Coastal Zone Management Act (CZMA) 
programs that are located in the Atlantic Ocean and Gulf of Mexico. 
This determination was submitted for review by the responsible state 
agencies under section 307 of the CZMA. On October 10, 2007, Georgia's 
Department of Natural Resources (GDNR) objected to NMFS' consistency 
determination that the provisions in Amendment 2 to the Consolidated 
HMS FMP are consistent, to the maximum extent practicable, with the 
enforceable policies of the Georgia Coastal Zone Management Program 
(GCZMP). The October 10, 2007, letter stated that NMFS failed to 
consider the elimination of the use of shark gillnets in Amendment 2 to 
the Consolidated HMS FMP. GDNR claims that the use of gillnets in 
Federal waters is inconsistent with the GCZMP because the program bans 
the use of gillnet and longline gear in state waters to address bycatch 
of protected species and marine mammals.
    NMFS considered the comments in the October 10, 2007, letter and, 
for the reasons stated below, has determined that the final actions in 
Amendment 2 to the Consolidated HMS FMP, including allowing the use of 
gillnet gear in the Atlantic shark fishery, are consistent to the 
maximum extent practicable with the enforceable policies of the GCZMP, 
15 CFR 930.32.
    NMFS shares the State of Georgia's concern regarding the impact of 
the shark gillnet fishery on threatened and endangered species. Given 
these impacts, NMFS will not implement measures that increase fishing 
effort with this gear type, such as setting gillnet specific retention 
limits for blacktip sharks. However, NMFS also recognizes that the data 
currently available indicate relatively low rates of bycatch and 
bycatch mortality of protected species and other finfish in the shark 
gillnet fishery compared to other HMS and non-HMS fisheries. It is 
worth noting that observer coverage rates in the shark gillnet fishery 
are higher than in other fisheries because of Atlantic Large Whale Take 
Reduction Plan requirements. Increased observer coverage reduces the 
associated error that can be introduced when calculating bycatch and 
protected resource interactions on non-observed trips. For instance, 
observer reports indicate that finfish bycatch in shark gillnet fishery 
during 2007 ranged from 1.7 to 13.3 percent of the total catch. In 
addition, observed protected species bycatch (sea turtles and marine 
mammals) was less than 0.1 percent of the total catch. Therefore, NMFS 
does not believe it is appropriate to eliminate this fishery and shift 
its associated effort to other fisheries that have higher interaction 
rates with protected resources and marine mammals.
    In addition, according to recent observer reports, only four to six 
vessels use shark gillnet gear, therefore, the cumulative impact of 
this fishery is not expected to have significant ecological impacts on 
non-target species. The incidental capture of endangered species in the 
shark gillnet fishery is regulated under the Endangered Species Act 
(ESA). A BiOp issued May 20, 2008, in response to the actions taken in 
the Final Amendment 2 to the Consolidated Atlantic Highly Migratory 
Species Fishery Management Plan, concluded, that the continuation of 
the shark gillnet (including strikenets, drift gillnets, and sink 
gillnets) fishery would not likely jeopardize the continued existence 
of protected species or result in the destruction or adverse 
modification of critical habitat. Furthermore, the BiOp indicated that 
shark strikenets are not likely to have much impact on sea turtle or 
smalltooth sawfish takes because deployment of this gear currently 
results in very few takes. Interactions with protected resources occur 
more frequently with drift or sink gillnets than using strikenets, but 
gillnet gear interactions with protected resources are still minimal 
compared to longline fishing.
    In addition, currently, all shark gillnet vessels are required to 
carry VMS and are subject to observer coverage during and outside of 
the right whale calving season. The most recent regulations amending 
the Atlantic Large Whale Take Reduction Plan were published in the 
Federal Register on June 25, 2007 (72 FR 34632), and on October 5, 2007 
(72 FR 57104). These regulations include a variety of measures aimed at 
reducing the likelihood of an interaction between shark gillnet gear 
and right whales. These regulations include, but are not limited to, 
prohibiting all gillnet fishing from November 15 through April 15 of 
each year in Federal waters off the

[[Page 40699]]

state of Georgia. NMFS will continue to work with the take reduction 
teams and relevant Fishery Management Councils to examine methods to 
reduce bycatch.
    NMFS acknowledges the concerns raised by the State of Georgia 
regarding protected resources interactions and bycatch that occurs in 
gillnet gear. Under the Magnuson-Stevens Act National Standards (16 
U.S.C. 1851(a)(1), (3), (8), and (9)), NMFS must, among other things, 
implement conservation and management measures to prevent overfishing 
while achieving, on a continuing basis, the optimum yield from each 
fishery; manage stocks throughout their range to the extent 
practicable; minimize adverse economic impacts on fishing communities 
to the extent practicable; and minimize bycatch and bycatch mortality 
to the extent practicable. Gillnets are the commercial gear that are 
used to primarily target small coastal sharks (SCS) and blacktip 
sharks. The SCS complex was assessed in 2007; three of the four species 
of SCS have been determined to not be overfished with overfishing not 
occurring. Blacknose sharks have been determined to be overfished with 
overfishing occurring; therefore, NMFS has initiated development of a 
rebuilding plan for this species and measures to end overfishing. These 
measures may include changes to the shark gillnet fishery, as 
necessary. However, the latest blacktip stock assessment recommended 
not changing catches of blacktip sharks in the Atlantic Ocean. 
Therefore, based on the best scientific information available, 
Amendment 2 to the Consolidated HMS FMP would manage the fishery for 
optimum yield by keeping the SCS quota at the status quo level and 
setting a non-sandbar large coastal shark (LCS) quota (including 
blacktip sharks) based on historical landings. Given that the non-
sandbar LCS quota is based on the latest blacktip shark assessment, 
closing the shark gillnet fishery in Federal waters off Georgia would 
not facilitate achieving the optimum yield from the fishery and 
managing the stocks throughout their range. Thus, NMFS is not 
prohibiting shark gillnet gear at this time due to the negative social 
and economic impact this would have on the four to six vessels actively 
fishing in the shark gillnet fishery. In addition, NMFS has implemented 
high-levels of observer coverage on gillnet vessels targeting sharks as 
well as those targeting other species to monitor bycatch and 
interactions with protected resources; NMFS can take additional action 
if interactions with protected resources in the this fishery become a 
problem.
    At this time, there is not sufficient information to support a 
closure of the shark gillnet fishery in Federal waters adjacent to 
Georgia, pursuant to the Coastal Zone Management Act. This decision is 
consistent with National Standard 2 of the Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. 1801 et seq.) (Magnuson-
Stevens Act), which requires that management measures be based on the 
best scientific information available including the BiOp. NMFS has 
determined that the final actions in Amendment 2 to the Consolidated 
HMS FMP and its implementing rule are consistent to the maximum extent 
practicable with the enforceable policies of the GCZMP. Accordingly, 
this rule, which that finalizes Amendment 2 to the Consolidated HMS 
FMP, will not ban gillnet gear in the Atlantic shark fishery.

Summary of the Final Regulatory Flexibility Analysis

    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA, a summary of the significant issues raised 
by the public comments in response to the IRFA, NMFS' responses to 
those comments, and a summary of the economic analyses completed to 
support the action. A summary of the analysis, which addresses each of 
the requirements in 5 U.S.C. 604(a)(1)-(5), can be found below. A copy 
of the full analysis is available in Amendment 2 to the Consolidated 
HMS FMP (see ADDRESSES).

Statement of the Need for and Objectives of this Final Rule

    The need for and objectives of the final rule are fully described 
in the preamble of the proposed rule (72 FR 41392, July 27, 2007) and 
in Final Amendment 2 to the Consolidated HMS FMP and are not repeated 
here (5 U.S.C. 604(a)(1)). In summary, the selected actions in this 
final rule will rebuild overfished shark fisheries by: reducing the 
commercial quotas, adjusting the commercial retention limits, 
establishing a shark research fishery, requiring commercial vessels to 
maintain all fins on the shark carcasses through offloading, 
establishing two regional quotas for non-sandbar large coastal sharks 
(LCS), establishing one annual season for commercial shark fishing, 
changing the reporting requirements for dealers (including swordfish 
and tuna dealers), establishing additional time/area closures for BLL 
fishermen, and changing the authorized species for recreational 
fishermen. This rule also establishes the 2008 commercial quota for all 
shark species groups. These changes affect all commercial and 
recreational shark fishermen and shark dealers.

A Summary of the Significant Issues Raised By the Public Comments in 
Response to the IRFA, a Summary of the Assessment of NMFS of Such 
Issues, and a Statement of Any Changes Made in the Rule as a Result of 
Such Comments

    A FRFA is also required to include a summary of the significant 
issues raised by the public comments in response to the IRFA, a summary 
of the assessment of the issues raised, and a statement of any changes 
made in the rule as a result of the comments (5 U.S.C. 604(a)(2)). NMFS 
received many comments on the proposed rule and draft EIS during the 
public comment period. A summary of these comments and NMFS's responses 
are included above. The specific economic concerns raised in comments 
are also summarized here.
    NMFS received a comment that NMFS should consider an alternative 
suite that incorporates a ``phase out'' of the commercial shark 
industry. NMFS did consider such an alternative in the Draft EIS that 
would have ended Atlantic commercial shark fishing, Alternative Suite 
5. Under this alternative, shark landings would have been limited to 
research and the collection for public display via the HMS Exempted 
Fishing Program. Recreational fisheries would have been catch and 
release only. However, after careful consideration of the other 
alternatives, this alternative suite was not preferred due to the 
economic costs associated with a complete closure as discussed in 
Chapter 6 of Amendment 2 to the Consolidated HMS FMP.
    NMFS received several comments regarding an industry buyout/
buyback. NMFS recognizes that some participants of the Atlantic shark 
fishery expressed interest in reducing fishing capacity for sharks via 
some form of buyout program. Buyouts can occur via one of three 
mechanisms, including: through an industry fee, via appropriations from 
the United States Congress, and/or with funds provided from any State 
or other public sources or private or non-profit organization. A buyout 
plan is not proposed in this rulemaking, despite requests for 
consideration from the HMS Advisory Panel and other affected 
constituents, because NMFS is unable to independently implement a 
buyout as a management option. Buyouts must be initiated via one of the 
aforementioned

[[Page 40700]]

mechanisms. The shark fishery did develop an industry ``business plan'' 
that examined options for a buyout, which is further described in 
Chapter 1 of the Draft Amendment 2 to the Consolidated HMS FMP.
    NMFS received several comments concerning the potential for severe 
economic impacts associated with all of the alternatives considered 
(other than status quo). Comments indicated a concern that many 
fishermen may not be able to survive economically until the next stock 
assessment. NMFS estimated that the alternatives considered, including 
the no action alternative, would result in economic consequences to the 
shark fishery. The severity of the economic consequences varies by 
alternative suite, with alternative suite 5, the complete closure of 
the Atlantic shark fishery, having the greatest economic impact.
    It was also suggested that NMFS should include analysis of the 
negative economic impacts associated with prohibiting porbeagle sharks 
in shark tournaments, especially in New England. NMFS appreciates this 
additional information regarding the importance of porbeagle sharks in 
tournament fisheries. Additional information has been incorporated into 
the final EIS for Amendment 2 to the Consolidated HMS FMP to further 
address the potential economic impacts of a prohibition of porbeagle 
landings. However, based on strong support from the public not to 
prohibit retention of porbeagle sharks and NMFS' recognition of the 
negative impacts of such a prohibition, NMFS is choosing not to 
prohibit the recreational retention of porbeagle sharks.
    Comments indicated that economic impacts on recreational fisheries 
would be significant if sandbar, bull, and blacktip sharks were 
prohibited in the recreational fishery. Comments indicated that the 
negative economic impacts resulting from the reduced number of sharks 
that could be legally landed by recreational anglers would be 
particularly pronounced in areas where blacktip sharks are frequently 
encountered. In addition, tournaments offering prize categories for 
sharks could also experience negative economic impacts as a result of 
not allowing six additional species to be retained in recreational 
fisheries. Due to a lack of information regarding the relative 
preferences of shark fishermen to retain shark species over practicing 
catch-and-release shark fishing, NMFS was unable to quantitatively 
estimate the economic impacts of the proposed recreational measures 
restricting the authorized list of species that could be retained. In 
part to mitigate these impacts, the final preferred alternative suite 
would allow recreational anglers to retain blacktip, finetooth, 
blacknose, bull, spinner, and porbeagle sharks.
    Comments also indicated a concern that dealers will not likely be 
interested in continuing to buy shark products when the proposed 
measures go into place. NMFS acknowledges that some dealers may opt to 
no longer participate in the shark fishery due to the decrease in 
volume of shark product that is anticipated under the reduced quotas. 
Handling low volumes of shark product may not be profitable for some 
dealers. However, the information available to NMFS indicates that 
several shark dealers already handle small quantities of shark 
products, and therefore, changes in the shark fishery are unlikely to 
cause them to change their business practices. Reduced domestic harvest 
of sandbar sharks could potentially increase the value of shark product 
in the future due to reduced supplies. Furthermore, having the season 
open for a longer period of time each year, subject to reduced 
retention limits, may enhance the domestic shark meat market and 
increase prices.
    Several comments suggested NMFS should implement a retraining 
program for fishermen and families that are displaced by this action. 
Others suggested that fishermen reconfigure their businesses towards 
providing tourism services. NMFS has worked with a number of other 
agencies/departments to explore programs that are available to 
fishermen and other businesses affected by fishery management measures. 
Some of these include retraining programs and financial assistance and 
would mitigate some of the economic impacts of this rule. These 
programs are further discussed in response to comments provided above.
    Commenters also suggested that NMFS consider giving shark fishermen 
swordfish handgear permits in order to help offset negative economic 
impacts, while also increasing swordfish landings. NMFS did not propose 
changes to the permit system pursuant to the rulemaking; however, NMFS 
will take this suggestion under consideration for future actions. NMFS 
notes that the swordfish handgear permit is a limited access permit. 
Therefore, issuing new swordfish handgear permits may result in 
negative economic impacts to current holders of swordfish handgear 
permits. In addition, NMFS recently issued new regulations to 
revitalize the swordfish fishery and may consider additional measures 
in the future depending on the outcome of the current regulatory 
changes.
    NMFS received a comment questioning whether shark permits will 
still have any value after the proposed management changes take place. 
It is difficult to predict the value of shark directed and incidental 
permits before management measures associated with this Amendment are 
implemented. It is likely that the value of shark permits may be 
decreased as a result of quota reductions and reduced retention limits. 
However, there will still be some demand for shark permits by new 
entrants into the commercial swordfish and tuna fisheries who will need 
all three HMS permits to fish.
    NMFS received comments indicating that requiring fishermen to land 
sharks with fins on will change the entire pricing of shark product. 
Commenters suggested that NMFS could be changing the whole valuation 
process by requiring that sharks have their fins on. The requirement to 
land sharks with their fins attached would allow fishermen to leave the 
fins attached by just a small piece of skin so that the shark could be 
packed efficiently on ice 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 any excessive amounts of waste at the dock, 
since dressing the shark (except removing the fins) can be performed 
while at sea. While this will result in some changes to the way 
fishermen process sharks at sea, the transfer of shark product to 
dealers could remain relatively unchanged because the fins can be 
removed quickly once the shark has been offloaded. NMFS expects that 
the market will continue to receive sharks in their log form. While 
there may be some changes in the way sharks are marketed and priced, it 
is unlikely that the total ex-vessel value of sharks will change 
significantly due to the requirement to land sharks with their fins 
attached.

Description and Estimate of the Number of Small Entities to Which the 
Final Rule Would Apply

    NMFS considers all HMS commercial permit holders to be small 
entities because they either had average annual receipts less than $4.0 
million for fish-harvesting, average annual receipts less than $6.5 
million for charter/party boats, 100 or fewer employees for wholesale 
dealers, or 500 or fewer employees for seafood processors (5 U.S.C. 
604(a)(3)). These are the Small Business Administration (SBA) size 
standards for defining a small versus

[[Page 40701]]

large business entity in this industry. A full description of the 
fisheries affected and the categories and number of permit holders can 
be found in Amendment 2 to the Consolidated HMS FMP.
    The final rule would apply to the 527 commercial shark permit 
holders in the Atlantic shark fishery based on an analysis of permit 
holders on October 1, 2007. Of these permit holders, 231 have directed 
shark permits and 296 hold incidental shark permits. Not all permit 
holders are active in the fishery in any given year. NMFS estimates 
that there are 143 vessels with directed shark permits and 155 vessels 
with shark incidental permits that could be considered actively engaged 
in fishing, since they reported landing at least one shark in the 
Coastal Fisheries Logbook from 2003 to 2005.
    In addition, the reporting requirements in the final alternatives 
would also apply to Federal shark dealers. As of October 1, 2007, there 
were a total of 269 Atlantic shark dealer permit holders. Based on 
NMFS' understanding of HMS dealer operations, NMFS assumes that each of 
these dealers would be considered a small business entity with 100 or 
fewer employees.
    The final measures being considered may also impact the types of 
services HMS CHB permit holders may provide. As of October 1, 2007, 
there were 4,899 HMS CHB permit holders. It is unknown what portion of 
these permit holders actively participate in shark fishing or market 
shark fishing services for recreational anglers.
    In addition, some businesses, such as marinas or specialized 
tournament organizers that hold tournaments may be considered small 
entities. HMS tournaments are required to register with NMFS. As such, 
NMFS has estimates on the number of HMS tournaments. However, NMFS may 
not necessarily know the number of businesses behind the tournament 
name and contact. Tournaments offering prize categories for sharks may 
also experience negative economic impacts as a result of NMFS 
prohibiting two additional species of sharks for retention in 
recreational fisheries in alternative suites 2 through 4, as well as 
alternative suite 5 which would allow no possession of any sharks and 
only allow catch and release fishing. The majority of tournaments 
specializing in sharks are in the North Atlantic region, specifically 
Rhode Island, New York, and Massachusetts. In 2007, there were 59 
tournaments with prize categories for pelagic sharks and 42 (combined) 
tournaments for LCS and SCS.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Final Rule, Including an Estimate of the 
Classes of Small Entities Which Would Be Subject to the Requirements of 
the Report or Record

    The final action requires modifying existing reporting and 
recordkeeping requirements (5 U.S.C. 604(a)(4)). The research program 
component in this final rule requires modifications to the existing EFP 
program and dealer reporting requirements.
    The final action modifies the reporting frequency for dealers. The 
current requirement for dealer reports to be post-marked within 10 days 
after each reporting period (1\st\ through 15\th\ and 16\th\ through 
last day of month), would be modified to state that dealer reports must 
be received by NMFS not later than 10 days after each reporting period 
(i.e., 25th and 10th of each month). Shark, swordfish, and tuna dealers 
would have to submit these reports in advance of the 10th and 25th of 
each month to ensure adequate time for delivery, depending on the means 
employed for report submission. Requiring that all dealer reports are 
actually received by NMFS in a more timely fashion would provide more 
frequent reports of shark landings in order to better assess quantities 
of sharks landed and whether or not a closure or other management 
measure is warranted to prevent overfishing. Dealers would still be 
required to submit reports indicating that no sharks were purchased 
during inactive periods. NMFS also intends to add a check box to the 
dealer form for dealers to note whether sharks were landed with fins 
naturally attached. Requirements for vessel logbooks and observer 
coverage would remain unchanged. Additional burden is not expected as a 
result of modifying the regulations to ensure that dealer reports are 
actually received within 10 days.
    The final rule would also create a limited shark research program 
that would result in changes to existing reporting requirements. Entry 
into the shark research program would require vessels to submit an 
application, which would add to the reporting burden for those vessels 
wishing to apply. Applicants selected to participate in the shark 
research program under this alternative would also be subject to 100 
percent observer coverage as a requirement for eligibility to 
participate in the program. In addition, selected vessels would 
continue to report in their normal logbook in addition to the observer 
program. Vessels in the shark research program, however, would not need 
to report in the same way as other EFP holders even though they are 
being issued permits under the EFP program. For example, vessels in the 
research fishery would not be required to submit interim or annual 
reports describing their fishing activities. Rather, they would only be 
required to submit their logbooks per current regulations. Vessels 
outside the shark research program would still be required to carry an 
observer if selected and all vessels would still be required to 
complete logbooks within 48 hours of fishing activity and then submit 
the logbooks to NMFS within seven days.

Description of the Steps NMFS Has Taken to Minimize the Significant 
Economic Impact on Small Entities Consistent with the Stated Objectives 
of Applicable Statutes, Including a Statement of the Factual, Policy, 
and Legal Reasons for Selecting the Alternative Adopted in the Final 
Rule and the Reason That Each One of the Other Significant Alternatives 
to the Rule Considered by NMFS Which Affect Small Entities Was Rejected

    One of the requirements of a FRFA is to describe any alternatives 
to the proposed rule which would accomplish the stated objectives and 
which minimize any significant economic impacts (5 U.S.C. 604(a)(5)). 
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4)) 
lists four general categories of ``significant'' alternatives that 
would assist an agency in the development of significant alternatives. 
These categories of alternatives are:
    1. Establishment of differing compliance or reporting requirements 
or timetables that take into account the resources available to small 
entities;
    2. Clarification, consolidation, or simplification of compliance 
and reporting requirements under the rule for such small entities;
    3. Use of performance rather than design standards; and,
    4. Exemptions from coverage of the rule for small entities.
    In order to meet the objectives of this final rule, consistent with 
the Magnuson-Stevens Act and the Endangered Species Act (ESA), NMFS 
cannot exempt small entities or change the reporting requirements only 
for small entities because all the entities affected are considered 
small entities. Thus, because NMFS considers all HMS permit holders to 
be small entities, there are no alternatives discussed that fall under 
the first and fourth categories described above. NMFS does not know of 
any performance or design standards

[[Page 40702]]

that would satisfy the aforementioned objectives of this rulemaking 
while, concurrently, complying with the Magnuson-Stevens Act. Thus, 
there are no alternatives considered under the third category. As 
described below, NMFS analyzed seven different alternatives in this 
rulemaking and provides justification for selection of the final action 
to achieve the desired objective.
    The alternatives considered and analyzed have been grouped into 
five alternative suites. Alternative suite 1 would maintain the current 
Atlantic shark fishery (no action). Alternative suite 2 would allow 
only directed shark permit holders to land sharks. Alternative suite 3 
would allow directed and incidental shark permit holders to land 
sandbar and non sandbar LCS as well as SCS and pelagic sharks. 
Alternative suite 4 would establish a program where vessels with 
directed or incidental shark permits could participate in a research 
fishery for sandbar sharks. Only vessels participating in this program 
could land sandbar sharks. Vessels not participating in the research 
program could land non-sandbar LCS, SCS, and pelagic sharks. Finally, 
alternative suite 5 would shut down the commercial Atlantic shark 
fishery and only allow a catch and release recreational shark fishery. 
The preferred alternative is suite 4, which would establish a program 
where a limited number of vessels with directed or incidental shark 
permits could participate in a research fishery for sharks dependent on 
the research needs of NMFS.

1. Alternative Suite 1

    Alternative suite 1, the status quo alternative, would not impose 
any significant new economic impacts to small businesses in the HMS 
Atlantic shark fishery because under this alternative the current LCS 
quota of 1,017 mt dw, in conjunction with the 4,000 lb LCS directed 
shark permit trip limit, would be maintained. Under this alternative, 
the current fishing effort would not likely change which could lead to 
economic benefits from reduced market uncertainty for fishermen and 
related businesses in the short term. If gross revenues for directed 
and incidental permit holders is averaged across the approximately 298 
active directed and incidental shark permit holders, then the average 
annual gross revenues per shark fishing vessel is just over $20,000. 
However, long term, negative economic impacts could occur if current 
fishing mortality of sandbar sharks, an economically important species, 
is not decreased as recommended by the LCS stock assessment, and this 
species continues to be overfished.
    The status quo alternative would maintain the existing closures and 
would not add any new closures. The three management regions would also 
remain unchanged. There would also be no additional reporting 
requirements. Alternative suite 1 would also maintain the trimester 
seasons, which provides fishermen and dealers with more open seasons. 
With an annual LCS quota of 1,017 mt dw, spreading the seasons out over 
the calendar year could potentially result in greater economic 
stability for fishermen and associated communities. However, if quotas 
are reduced to those in the final action to comply with the 
recommendations from the LCS stock assessment, while also maintaining 
the trimester seasons under status quo, trimester seasons could become 
less economically stable for fishermen and dealers because of the 
reduced amount of quota and fishing effort during the calendar year. 
Maintaining existing closures, reporting requirements, and management 
regions would likely have little to no economic impacts on effected 
small businesses.
    Alternative suite 1 would also maintain the current bag limit for 
HMS Angling permit holders at one shark greater than 54 inches per 
vessel per trip as well as one sharpnose and one bonnethead shark (both 
of which are in the SCS complex) per person per trip. This would likely 
result in no new economic impacts for businesses operating recreational 
fishing charter trips targeting sharks and shark fishing tournaments in 
the short term.
    Overall, alternative suite 1 would likely have the lowest economic 
impact on small businesses. However, this alternative would likely not 
meet the objectives of this action. Maintaining the LCS quota of 1,017 
mt dw would be inconsistent with the Magnuson-Stevens Act and the 
recent LCS stock assessment that recommended a TAC of 158.3 mt dw for 
sandbar sharks for this species to rebuild by 2070. Current fishing 
effort, under the status quo alternative, would lead to continued 
overfishing of sandbar, porbeagle and dusky sharks, which could 
potentially prevent these species from rebuilding in the recommended 
timeframe. As a result, this alternative was not selected.

2. Alternative Suite 2

    Alternative suite 2 would allow only directed shark permit holders 
to land sharks. In addition, this alternative would remove sandbar 
sharks from the LCS complex and establish a separate category for 
sandbar sharks from the LCS complex. The quotas for landing sandbar and 
non-sandbar LCS would also be reduced. Incidental shark permit holders 
would not be permitted to land sharks under alternative suite 2. As of 
2007, there were 231 directed shark permit holders, 296 incidental 
shark permit holders, and 269 shark dealer permit holders. One hundred 
forty-three vessels with directed shark permits and 155 vessels with 
shark incidental permits reported landing at least one shark in the 
Coastal Fisheries Logbook from 2003 to 2005 and could be considered 
active.
    Data on gross annual revenues indicate that implementation of 
alternative suite 2 would result in a significant reduction in revenue 
for directed shark permit holders. On average, directed permit holders 
landed 1,286,447 lb dw of sandbar sharks and 1,498,111 lb dw of non-
sandbar LCS from 2003 to 2005 based on Federal and state shark dealer 
reports (landings by permit type were based on percentage of total 
landings by permit type in the Coastal Fisheries and HMS logbooks). In 
2006 ex-vessel prices, this is equivalent to gross revenues of 
$4,702,031 (assuming 5 percent of the landings are fins and 95 percent 
of the landings are carcass weight). If gross revenues for directed 
permit holders are averaged across the approximately 143 active 
directed shark permit holders, then the average annual gross revenues 
per shark fishing vessel is just under $33,000 from shark revenues. 
Under alternative suite 2, gross revenues for directed permit holders 
would be estimated to be $1,333,417. This is a 72-percent overall 
reduction in gross revenues compared to the period from 2003 to 2005. 
These reduced gross revenues averaged across the 143 active directed 
permit holders are just over $9,000 per directed shark fishing vessel. 
This estimated reduction in revenue from shark landings could affect 
the profitability and even viability of some marginal shark fishery 
operations. Operations that have permits in other fisheries and can 
easily diversify are less likely to be as affected as those marginal 
operations. Nevertheless, the profitability of all directed shark 
fishing vessels would likely be reduced. Because the states of Florida, 
New Jersey, and North Carolina have the most directed shark permits, 
these states would be most negatively impacted by alternative suite 2.
    Directed shark permit holders using PLL gear would also see 
reduction of revenues under alternative suite 2 because retention of 
sandbar sharks on PLL gear would be prohibited. On average, 80,825 lb 
dw of sandbar sharks were reported landed on PLL gear by

[[Page 40703]]

directed shark permit holders from 2003 to 2005 (HMS logbook data). In 
2006 ex-vessel prices, this is equivalent to $117,510 in gross 
revenues. Given an average of 16.7 vessels landing sandbar sharks with 
PLL gear from 2003 to 2005, prohibition of sandbar sharks on PLL gear 
could result in a loss of gross revenues of $7,037 per vessel.
    Data on the reduction of per trip revenues also show a decline in 
revenue for directed permit holders. Under alternative suite 2, 
directed permit holders would be limited to 8 sandbar sharks per trip 
and 21 non-sandbar LCS per trip. In comparison, data indicate that 
under status quo, which has a 4,000 lb dw LCS trip limit, the average 
number of sandbars and non-sandbar LCS landed per trip is 35 sandbars 
and 32 non-sandbar LCS for all gear types reported in the Coastal 
Fisheries and HMS Logbooks. Based on 2006 ex-vessel prices, this is 
equivalent to $4,101 per trip. Revenue estimates on a regional trip 
basis of the status quo alternative were also based on species 
composition data attained from the BLL observer program data. Observer 
data indicate that between 2005 and 2006, 69 sandbar sharks and 35 non-
sandbar LCS were caught per trip in the South Atlantic region, and 30 
sandbar sharks and 83 non-sandbar LCS were caught per trip in the Gulf 
of Mexico region. Based on these numbers and 2006 ex-vessel prices, 
revenues from South Atlantic trips are currently averaged at $4,743/
trip and Gulf of Mexico trip revenues averaged $4,101 per trip.
    Thus, given that the retention limits under alternative suite 2 (8 
sandbars/trip and 21 non-sandbar LCS/trip), the average revenue per 
trip is estimated to decrease. The reduced non-sandbar LCS retention 
limit of 21 sharks per trip is based on the average ratio of sandbars 
to non-sandbar LCS caught in the South Atlantic and Gulf of Mexico 
regions to limit sandbar shark discards by fishermen deploying non-
selective gear. In the Gulf of Mexico, the ratio of sandbars to other 
LCS caught is 1:4 which, based on an 8 sandbar per trip retention 
limit, would equal 32 non-sandbar LCS per trip. However, such a high 
non-sandbar LCS retention limit would result in sandbar discards in the 
South Atlantic (approximately 65.3 mt dw). Therefore, a 21 non-sandbar 
LCS/trip retention limit was set to balance discards versus catch in 
the two regions. This results in approximately 5 sandbar sharks being 
caught in the Gulf of Mexico region when the non-sandbar LCS retention 
limit/trip is filled (and therefore, only 86.1 mt dw of the sandbar 
quota would be filled). Therefore, gross revenues on a trip basis are 
estimated to be $1,262 per trip in the South Atlantic and $1,333 per 
trip in the Gulf of Mexico. From 2003 to 2005, there were 124 vessels 
that averaged more than 324 lb dw (or 8 sandbar sharks) of sandbar/
trip.
    Incidental permit holders would also experience revenue declines 
under alternative suite 2 because they would be prohibited from landing 
sharks. On average, 66 incidental permit holders landed 12,994 lb dw 
per year of sandbar sharks and 46,333 lb dw per year of non-sandbar LCS 
from 2003 to 2005 based on Federal and state shark dealer reports and 
Coastal Fisheries and HMS logbook data. Using 2006 ex-vessel prices, 
this is equivalent to gross revenues of $106,491 (assuming 5 percent of 
the landings are fins and 95 percent of the landings are carcass 
weight). Gross revenues averaged across the 66 vessels with incidental 
permits landing sharks were $1,614 per vessel. Since incidental permit 
holders would not be able to land any sharks under alternative suite 2, 
the 66 active vessels would be most negatively affected by this 
alternative suite. The states of Florida, Louisiana, New Jersey, and 
North Carolina had the most incidental shark permit holders as of 2007 
(144, 37, 20, and 16, respectively).
    Alternative suite 2 would also require dealers to submit reports 
within 24 hours of shark products being purchased. There could be 
negative economic impacts to Atlantic shark dealers as a result of the 
increased reporting requirement associated with this alternative. 
Currently, shark dealer reports are required to submit bimonthly 
reports, regardless of whether the dealer actually purchased any shark 
products. Reporting frequency would be increased to 24 hours of when 
shark products were purchased. While the increased reporting burden 
would not result in direct costs to the shark dealer, it would result 
in additional time spent submitting dealer reports. This represents an 
opportunity cost for dealers since that time could have been spent 
conducting other activities related to their business. Furthermore, 
since submitting the reports via regular mail would no longer be 
feasible, in order to comply with the requirement that dealer reports 
must be received by NMFS within 24 hours, it is assumed that dealers 
would have to submit dealer reports electronically or via facsimile. 
Dealers that do not currently possess a computer or fax machine would 
have to purchase one of these items. The increased reporting burden 
implemented in this alternative suite would be subject to approval 
under the PRA. Reporting requirements for shark vessel permit holders, 
including the need to carry an observer if selected and the need to 
submit vessel logbooks within seven days of completing a fishing trip 
would not be modified, resulting in neutral economic impacts.
    The other provisions of alternative suite 2 are the same as in 
alternative suite 4, which is the final action for this rulemaking. 
These provisions include: maintaining the 60 mt shark display and 
research quota; placement of porbeagle sharks on the prohibited list; 
quota carryover limited to 50 percent of base quota for species not 
overfished; no carryover for overfished, overfishing or unknown 
species; sharks fins must remain on the shark; removal of regions and 
seasons; and limiting the shark species that can be landed 
recreationally. The effects of these provisions are set forth in the 
discussion of alternative suite 4.
    This alternative suite was not selected for two primary reasons. 
First, this alternative does not address the impacts of continuing to 
catch sandbar sharks incidentally. These vessels will likely continue 
to incidentally catch sandbar sharks but then, under this alternative, 
those sharks would be required to be discarded. These discards would 
reduce potential revenues and possibly operating efficiency of vessels 
possessing incidental shark permits. Regulatory discards would likely 
lead to increases in mortality and slow efforts to end overfishing. 
Second, the 24 hour dealer reporting that would be required to 
effectively manage quotas would result in a significant increase in 
reporting burden for dealers. This alternative would therefore not 
minimize the economic cost to dealers in comparison to the preferred 
alternative.

3. Alternative Suite 3

    Under alternative suite 3, the quotas for landing sandbar and non-
sandbar LCS would also be reduced to the same level as that in 
alternative suite 2. However, because alternative suite 3 would allow 
directed and incidental shark permit holders to land sandbar and non-
sandbar LCS as well as SCS and pelagic sharks, the available sandbar 
and non-sandbar LCS quota would be spread over a larger universe of 
commercial permit holders. Unlike the status quo or alternative suite 
2, the retention limits for sandbar sharks and non-sandbar LCS would be 
the same for both directed and incidental permit holders. Since 
directed permit holders presumably make a greater percentage of their 
gross revenues from shark landings, they are expected to have larger 
negative socioeconomic impacts

[[Page 40704]]

compared to incidental permit holders. (Revenues for incidental permit 
holders are actually expected to increase under this alternative.) The 
states of Florida, New Jersey, and North Carolina have the most 
directed permit holders. As with alternative suite 2, shark dealers 
could also experience negative impacts due to the reduction in the 
sandbar and other LCS quotas and retention limits, which would reduce 
the overall amount of sharks being landed.
    As stated under alternative suite 2, on average, directed permit 
holders landed 1,286,447 lb dw of sandbar sharks per year and 1,498,111 
of non-sandbar LCS per year from 2003 to 2005 based on Federal and 
state shark dealer reports and logbook data. In 2006 ex-vessel prices, 
this is equivalent to gross revenues of $4,702,031 (assuming 5 percent 
of the landings are fins and 95 percent of the landings are carcass 
weight). However, under alternative 3, the available sandbar and non-
sandbar LCS quota would be spread over directed and incidental permit 
holders. Based on the retention limit of 4 sandbar sharks and 10 non-
sandbar LCS per vessel per trip, it is estimated that 105.9 mt dw 
(233,467 lb dw) of the sandbar quota and 229.2 mt dw (505,294 lb dw) of 
the non-sandbar LCS quota could be landed under alternative suite 3. 
Logbook data from 2003 and 2005 showed that directed permit holders 
take, on average, 1,108 trips per year; the total number of shark trips 
taken by all permit holders was 1,143 trips. Thus, directed permit 
holders exhibited approximately 78 percent of the total fishing effort 
for sharks from 2003-2005. Based on this past effort, NMFS estimates 
that of the total sandbar and non-sandbar LCS quotas, approximately 83 
mt dw (183,073 lb dw) of sandbar quota and 180 mt dw (396,225 lb dw) of 
the non-sandbar LCS quota would be harvested by directed permit 
holders. Based on 2006 ex-vessel prices, this is equivalent to 
$1,015,162 gross revenues for directed permit holders. These gross 
revenues indicate a 78 percent overall reduction compared to the period 
from 2003 to 2005 (gross revenues based on current directed permit 
holders' landings were $4,702,031). Again, the states of Florida, New 
Jersey, and North Carolina have the most directed permit holders.
    The data indicate that directed shark permit holders would 
experience a loss in revenue under alternative suite 3 greater than 
under alternative suite 2, given that the available quota is shared 
with incidental permit holders under alternative suite 3. As stated in 
alternative 2, the status quo revenue was based on a 4,000 lb dw LCS 
trip limit for directed shark permit holders with average gross 
revenues in the South Atlantic of $4,743 per trip and average gross 
revenues in the Gulf of Mexico of $5,853 per trip. Under alternative 
suite 3, the retention limits would be 4 sandbars per trip and 10 non-
sandbar LCS per trip. However, since the ratio of sandbars to non-
sandbar LCS caught in the Gulf of Mexico is 1:4, NMFS estimates that 
approximately 3 sandbar sharks would be caught in the Gulf of Mexico 
region when the 10 non-sandbar LCS retention limit/trip is filled (10 
non-sandbar LCS / 4 = 2.5 sandbar sharks). Therefore, gross revenues on 
a trip basis are estimated to be $610 per trip in the South Atlantic 
and $670 per trip in the Gulf of Mexico. From 2003 to 2005, there were 
128 vessels that averaged more than 163 lb dw (or 4 sandbar sharks) of 
sandbar/trip. Therefore, these vessels would be most negatively 
affected by retention limits under alternative suite 3.
    The revenue of incidental shark permit holders is expected to 
increase under alternative suite 3. On average, incidental permit 
holders landed 12,994 lb dw of sandbar sharks and 46,333 lb dw of non-
sandbar LCS based on Federal and state shark dealer reports and logbook 
data. In 2006 ex-vessel prices, this is equivalent to gross revenues of 
$106,491 (assuming 5 percent of the landings are fins and 95 percent of 
the landings are carcass weight). The available sandbar and non-sandbar 
LCS quotas would be averaged over directed and incidental permit 
holders under alternative suite 3. Based on past effort, it was assumed 
305 trips could be made by incidental permit holders. This is 22 
percent of the expected fishing effort. Therefore, given the 105.9 mt 
dw (233,467 lb dw) of the sandbar quota and 229.2 mt dw (505,294 lb dw) 
of the non-sandbar LCS quota that could be landed under alternative 
suite 3, approximately 23 mt dw (50,395 lb dw) of sandbar quota and 50 
mt dw (109,069 lb dw) of the non-sandbar LCS quota are anticipated to 
be landed by incidental permit holders. Based on 2006 ex-vessel prices, 
this is equivalent to $279,441 gross revenues for incidental permit 
holders. This would result in gross revenues that are 2.7 times higher 
compared to 2003 to 2005 (gross revenues based on current incidental 
permit holders' landings were $106,491).
    This increase in gross revenues is due to the increase in retention 
limits for incidental permit holders. Under the status quo, incidental 
permit holders can retain 5 sharks from the LCS complex. However, under 
alternative suite 3, incidental permit holders would be able to retain 
4 sandbars and 10 non-sandbar LCS or 14 LCS total. This retention limit 
is almost 3 times higher than what is currently allowed under the 
status quo. On average, incidental permit holders have been landing 2 
sandbar sharks and 3 non-sandbar LCS per trip. Based on 2006 ex-vessel 
prices, this is equivalent to $307 per trip. However, under alternative 
suite 3, incidental permit holders would make equivalent gross revenues 
per trip as directed permit holders: $610 per trip in the South 
Atlantic and $670 per trip in the Gulf of Mexico. This would result in 
gross revenues for incidental permit holders that are 2 to 3 times 
higher than gross revenues in 2003 to 2005 depending on future fishing 
effort and catch composition. Therefore, there would be positive 
economic impacts for incidental permit holders under alternative suite 
3. Since approximately 66 vessels with incidental permit holders landed 
sandbar sharks or non-sandbar LCS in 2003 to 2005 in the Coastal 
Fisheries and HMS Logbooks, these 66 vessels would have the largest 
economic benefits under alternative suite 3. However, if sharks become 
profitable for incidental permit holders under alternative suite 3, 
then more vessels with incidental permits may actively land sandbars 
and non-sandbar LCS in the future. Finally, the states of Florida, 
Louisiana, New Jersey, and North Carolina had the most incidental shark 
permit holders in 2007. Therefore, these states would see the largest 
socioeconomic benefits for incidental permit holders under alternative 
suite 3.
    The other provisions of alternative suite 3 are the same as 
alternative suite 4, which is the final action for this rulemaking. 
These provisions include maintaining the 60 mt shark display and 
research quota; placement of porbeagle sharks on the prohibited list; 
quota carryover limited to 50 percent of base quota for species not 
overfished; no carryover for overfished, overfishing or unknown 
species; sharks fins must remain on the shark; dealer reports received 
within 10 days of purchase; removal of regions and seasons; and 
limiting the shark species that can be landed recreationally.
    This alternative suite was not selected as the preferred 
alternative primarily based on its failure to achieve the ecological 
objectives of this rule and its economic impacts. Despite the time/area 
closures, alternative suite 3 would have a smaller reduction in dead 
discards of dusky sharks compared to alternative suite 2 since sandbar 
sharks would be allowed to be retained on PLL gear under alternative 
suite 3.

[[Page 40705]]

    Negative economic impacts under alternative suite 3 are expected 
for directed permit holders (78-percent reduction in gross revenues 
compared to the status quo) as a result of the four sandbar per vessel 
per trip retention limit. Given that retention limits for sandbar and 
non-sandbar LCS are significantly lower than the limit under the status 
quo (91 and 69-percent reduction in sandbar and non-sandbar LCS 
retention limits, respectively, for directed permit holders), it is 
anticipated that there would be no directed shark fishery as a result 
of alternative suite 3. While an observer program would still operate 
under alternative suite 3, without a directed shark fishery, it is 
anticipated that the fishery dependent data collection would be 
limited, which could compromise data collection for future stock 
assessments. Alternative suite 4 should accomplish the necessary 
reductions in quota, retention limits, and fishing effort to prevent 
overfishing and allow stocks to rebuild while collecting valuable 
scientific data for NMFS. Therefore, due to concerns over dusky 
discards, quota monitoring, and data collection, NMFS is not 
implementing alternative suite 3 at this time.

4. Alternative Suite 4

    Alternative suite 4, the final action, establishes a program where 
vessels with directed or incidental shark permits could participate in 
a small research fishery for sandbar sharks that would harvest the 
entire 116.6 mt dw sandbar quota. There would be 100 percent observer 
coverage on each research vessel, and only vessels participating in 
this program could land sandbar sharks. Vessels not participating in 
the research program could land non-sandbar LCS, SCS, and pelagic 
sharks.
    Alternative suite 4 was selected because it meets the objectives of 
this rulemaking while minimizing some of the economic impacts. Those 
objectives include: implement rebuilding plans for sandbar, dusky, and 
porbeagle sharks; provide an opportunity for the sustainable harvest of 
blacktip sharks and other sharks, as appropriate; prevent overfishing 
of Atlantic sharks; analyze BLL time/area closures and take necessary 
action, as appropriate; and improve, to the extent practicable, data 
collections or data collection programs. As detailed in the economic 
analysis in chapters 4 and 6 of Amendment 2 to the Consolidated HMS 
FMP, it is estimated that vessels in the shark research fishery could 
make $437,963 in gross revenues of sandbar and non-sandbar LCS landings 
under the adjusted quota. Since 5 to 10 vessels are anticipated to 
participate in the research fishery, NMFS estimates that an individual 
vessel could make between $87,593 (i.e., 5 boats) to $43,796 (i.e., 10 
boats) in gross revenues on sandbar shark and non-sandbar LCS landings. 
However, the vessels operating outside of the research fishery would 
have an adjusted regional non-sandbar LCS base quota of 187.8 mt dw in 
the Atlantic region and 390.5 mt dw in the Gulf of Mexico region. In 
2006 ex-vessel prices, this is equivalent to $516,285 in the Atlantic 
region and $1,273,269 in gross revenues in the Gulf of Mexico region. 
Divided by the remaining vessels it is estimated that the average gross 
revenues from shark per vessel would be just over $2,000 per trip.
    In addition, under the final action, porbeagle sharks would be 
authorized in recreational and commercial fisheries, but under a 
reduced TAC of 11.3 mt dw. Of the TAC, 1.7 mt dw would be available for 
harvest in commercial fisheries. Currently, the commercial quota for 
porbeagle sharks is 92 mt dw per year, however, this commercial quota 
has never been met. NMFS set new TAC and commercial quotas for 
porbeagle sharks based on present effort levels. Based on quota 
monitoring (which includes vessel trip reports) from 2003 to 2006, on 
average, 3,867 lb dw (1.7 mt dw) of porbeagle sharks were landed per 
year. Based on 2006 ex-vessel prices, this is equivalent to $7,378 in 
gross revenues. Since commercial fishermen would be allowed to continue 
to land porbeagle sharks at this level, there are no anticipated 
economic impacts of implementing the TAC. In addition, recreational 
anglers would still be allowed to land porbeagle sharks. Therefore, 
there are no negative economic impacts for recreational fishermen 
associated with the TAC.
    Data indicate that the preferred alternative maintains the annual 
gross revenues per vessel for vessels operating in the research 
fishery, while allowing other vessels outside of the research fishery 
to generate revenues at reduced levels. For example, in the no action 
alternative, it was estimated that if gross revenues for directed and 
incidental permit holders are averaged across the approximately 296 
active directed and incidental shark permit holders, then the average 
annual gross revenues per shark fishing vessel is just over $20,000. 
Using the average landings for directed permit holder from 2003 to 
2005, it is estimated that the 143 active directed permit holders 
generated average annual gross shark revenues of just under $33,000 
from sharks. Under alternative 2, the reduced gross revenues averaged 
across the 143 active directed permit holders are estimated to be just 
over $9,000 per directed shark fishing vessel and $1,221 per vessel per 
year for incidental permit holders that land sharks. Under alternative 
3 this is reduced further to approximately $7,000 ($1,015,162 gross 
revenues/143 vessel) per directed shark fishing vessel per year.
    Alternative suite 4 has less economic impact on shark fishermen 
than alternative suite 5 (discussed below), but has greater impacts in 
the short-run than the status quo alternative. By allowing a limited 
number of historical participants to continue to harvest sharks under 
the research fishery, NMFS ensures that data for stock assessments and 
life history samples would continue to be collected. After comparing 
the alternative suites, NMFS determined that alternative suite 4 is the 
alternative that best meets the objectives of this rule while 
minimizing the economic impacts to shark permit holders.

5. Alternative Suite 5

    Alternative suite 5 would have significant economic and social 
impacts on a variety of small entities, including: commercial shark 
permit holders, shark dealers, CHB and tournament operators, gear 
manufacturers, bait and ice suppliers, and other secondary industries 
dependent on the shark fishery. The level of economic impact would be 
directly proportional to the amount of revenues that each entity has 
realized from past participation in the shark fishery. Permit holders 
would be impacted differently depending on the quantity of sharks 
landed in the past.
    Vessels targeting sharks (directed permit holders) landed an 
average of 1,263 mt dw of LCS, 223 mt dw SCS, and 173 mt dw pelagic 
sharks per year between 2003 to 2005 based on shark dealer landings and 
effort data from the Coastal Fisheries and HMS logbooks. The gross 
revenues based on 2006 ex-vessel prices of these landings are estimated 
at $4,702,031, $681,880, and $764,512 for LCS, SCS, and pelagic sharks, 
respectively. While it is assumed that few directed shark permit 
holders subsist entirely on revenues attained from the shark fishery, 
impacts would still be severe for those participants that depend on 
income from the directed shark fishery at certain times of the year. 
Because of the extensive economic impacts to shark directed permit 
holders as a result of this alternative suite, it is assumed that 
directed permit holders would likely pursue one of the following 
options as a result of closing

[[Page 40706]]

the Atlantic shark fishery: (1) transfer fishing effort to other 
fisheries for which they are already permitted (snapper grouper, king 
and Spanish mackerel, tilefish, lobster, dolphin/wahoo, etc), (2) 
acquire the necessary permits to participate in other fisheries (both 
open access and/or limited access fisheries), or (3) relinquish all 
permits and leave the fishing industry.
    Incidental permit holders would face negative economic and social 
impacts as a result of closing the Atlantic shark fishery; however, 
these impacts would not be as severe as those experienced by directed 
permit holders. It is assumed that incidental permit holders receive 
the majority of their fishing income from participation in other 
fisheries, depending on the region and the type of gear predominantly 
fished (i.e., swordfish, tunas, snapper grouper, tilefish, dolphin/
wahoo, lobster, etc.). NMFS estimates that, on average, between 2003 
and 2005 incidental permit holders landed 26.9 mt dw LCS, 17.3 mt dw 
SCS, and 45.5 mt dw pelagics per year based on shark dealer landings 
and effort data from the Coastal Fisheries and HMS logbooks. This 
equates in gross revenues, based on 2006 ex-vessel prices for these 
landings, of $106,491, $52,882, and $201,061 for the respective species 
complexes. Incidental permit holders would likely have to increase 
effort in these other fisheries to replace lost revenues from landing 
sharks. Furthermore, these vessels may seek other permits (open access 
or limited access transferred from another vessel) or leave the fishing 
industry entirely.
    This alternative suite could also have negative economic and social 
impacts for shark dealers as they would no longer be authorized to 
purchase shark products from Federally permitted shark fishermen. Shark 
dealers also maintain permits to purchase other regionally caught fish 
products. Due to the brevity of the LCS shark fishing season, which is 
the shark fishery that accounts for the majority of the shark product 
revenue due to the fin value, many dealers also get revenue from 
purchasing fish products other than sharks. The majority of shark 
dealer permit holders hold permits to purchase other fish products, 
including swordfish, tunas, snapper grouper, tilefish, mackerel, 
lobster, and dolphin/wahoo among others. It is difficult to estimate, 
on an individual dealer basis, the percentage of revenues received 
exclusively from shark products.
    Shark fin dealers, specializing in the purchase of shark fins from 
Federal and state permitted dealers, would also experience negative 
social and economic impacts as a result of closing the shark fishery. 
These dealers receive virtually all of their income from purchasing 
shark fins and shipping them to exporters. Exporters then transport the 
fins to global and domestic markets. This alternative suite would 
likely force shark fin dealers to leave the industry or focus on 
purchasing other fishery products, resulting in significant economic 
impacts to the individuals involved in this trade.
    It is difficult to estimate the economic and social impacts that 
would be experienced by various small entities that support the shark 
fishery, e.g., purveyors of bait, ice, fishing gear, and fishing gear 
manufactures. However, these impacts would likely be negative. It is 
difficult to estimate these impacts as it is uncertain to what extent 
vessels that were fishing for sharks would redistribute their fishing 
effort to other fisheries, or simply cease fishing operations. If the 
majority of vessels affected by a shark fishery closure simply displace 
effort to other fisheries, it is assumed that they would still be 
dependent on small entities for their bait, ice, and gear as these are 
products essential for fishing excursions targeting any species. 
Redistributing effort to other fisheries would mitigate negative 
economic impacts. However, if a significant number of vessels simply 
cease fishing operations or scale back considerably, then severe 
economic consequences would be imparted on these support industries as 
a result.
    Reporting and observer requirements would also change under 
alternative suite 5. Alternative suite 5 would increase the proportion 
of fishermen completing the Coastal Fisheries Logbook who are then 
selected to report information on fish that are discarded. Currently, 
20 percent of the fishermen completing this logbook are selected. This 
percentage would be increased to facilitate improved data available for 
shark interactions with longline and gillnet gear. This information 
would be especially useful because sharks could no longer be landed and 
the existing logbook only requires fishermen to provide data on landed 
fish. Increasing the number of fishermen who are selected to provide 
this data would result in negative economic and social impacts because 
it would require additional paperwork to be filled out. Because NMFS 
would close the fishery under this alternative suite, vessels would no 
longer be required to take an observer. Shark dealers would also no 
longer be required to submit dealer reports regarding sharks purchased.
    Seasons and regions for the commercial Atlantic shark fishery would 
no longer apply as this alternative suite would close the fishery.
    Closing the Atlantic recreational shark fishery would have negative 
economic and social impacts, particularly for CHB operators who 
specialize in landing sharks and operators of shark tournaments that 
have prize categories for landing sharks. It is difficult to estimate 
the number of CHB operators that specialize in shark charters as the 
permit covers any participant targeting swordfish, sharks, tunas, and 
billfish. Many CHB operators target a variety of species depending on 
client interests, weather, time of year, and oceanographic conditions. 
CHB operators specializing in shark fishing charters would have to 
target other HMS or non HMS species to replace revenues lost as a 
result of customers not being able to land sharks. However, not all 
customers necessarily want to land sharks. CHB operators would still be 
able to catch sharks; however, all sharks (regardless of species) would 
need to be released in a manner that maximizes their chances of 
survival. Catering business operations to clientele interested in catch 
and release fishing for sharks might mitigate some of the negative 
economic impacts. Shark tournaments that reward prizes for landing 
sharks would be negatively impacted as a result of this alternative 
suite. In 2007, there were 59 tournaments with prize categories for 
pelagic sharks and 42 (combined) tournaments for LCS and SCS. The 
majority of these tournaments target pelagic sharks and are held in the 
North Atlantic and Gulf of Mexico regions. These tournaments would 
either modify their rules to only allow points/prizes for released 
sharks or these tournaments would cease to exist. Economic impacts on 
small entities such as restaurants, hotels, gear manufacturers, retail 
stores selling fishing supplies, and marinas in the vicinity of where 
these tournaments are held would also experience negative economic 
impacts.
    HMS Angling permit holders would also experience negative impacts, 
despite the fact that they would still be able to catch and release 
sharks. Landings would not be permitted by any recreational anglers as 
a result of this alternative suite.
    Closing the Atlantic shark fishery would have negative economic 
impacts on global shark fin markets. As a result of this alternative 
suite, U.S. flagged vessels would no longer be able to contribute to 
the global demand for shark fins. This would disadvantage U.S. shark 
fishermen as global markets would likely need to purchase their shark 
fins from other markets. However,

[[Page 40707]]

the United States is not a significant producer of shark products 
globally. Based on data from the United Nations Food and Agriculture 
Organization (FAO), less than one percent of global shark landings 
occur in the U.S. Atlantic Ocean.
    While alternative suite 5 would meet the objectives of this rule, 
it would have the highest negative economic impacts of the alternatives 
considered. There would be significant reductions in revenues for shark 
dealers and fishing vessels involved in the shark fishery. Some small 
businesses dependent on commercial shark fishing may cease operating as 
a result of prohibiting the commercial harvest of shark species. 
Therefore, this alternative was not selected.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The Agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. Copies of the 
compliance guide for this final rule are available (see ADDRESSES).

List of Subjects

50 CFR Part 600

    Fisheries, Fishing, Fishing vessels, Foreign relations, Penalties, 
Reporting and recordkeeping requirements.

50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: June 16, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 600 and 635 are 
amended as follows:

Chapter VI

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

0
2. In Sec.  600.1203, paragraph (a)(9) is revised to read as follows:


Sec.  600.1203  Prohibitions.

    (a) * * *
    (9) Fail to maintain a shark in the form specified in Sec. Sec.  
600.1204(h) and 635.30(c) of this chapter.
* * * * *

0
3. In Sec.  600.1204, paragraphs (h) and (j) are revised to read as 
follows:


Sec.  600.1204  Shark finning; possession at sea and landing of shark 
fins.

* * * * *
    (h) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark limited access permit and who lands 
shark in or from the U.S. EEZ in an Atlantic coastal port must comply 
with regulations found at Sec.  635.30(c) of this chapter.
* * * * *
    (j) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark limited access permit shall possess on board 
shark fins without the fins being naturally attached to the 
corresponding carcass(es), although sharks may be dressed at sea.
* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
4. The authority citation for 50 CFR part 635 continues to read as 
follows:

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

0
5. In Sec.  635.2, the definitions of ``First receiver'', ``Naturally 
attached'', ``Non-sandbar LCS'', and ``Shark research permit'' are 
added in alphabetical order and the definitions of ``Dress'' and 
``Dressed weight (dw)'' are revised to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Dress, for swordfish, tunas, and billfish, means to process a fish 
by removal of head, viscera, and fins, but does not include removal of 
the backbone, halving, quartering, or otherwise further reducing the 
carcass. For sharks, dress means to process a fish by removal of head 
and viscera, but does not include removal of the fins, backbone, 
halving, quartering, or otherwise further reducing the carcass.
    Dressed weight (dw), for swordfish, tunas, and billfish, means the 
weight of a fish after it has been dressed. For sharks, dressed weight 
means the weight of a fish after it has been dressed and had its fins, 
including the tail, removed.
* * * * *
    First receiver means any 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 has been issued, 
or should have been issued, a valid permit under this part.
* * * * *
    Naturally attached refers to shark fins that remain attached to the 
shark carcass via at least some portion of uncut skin.
* * * * *
    Non-sandbar LCS means one of the species, or part thereof, listed 
under heading A of Table 1 in Appendix A of this part other than the 
sandbar shark (Carcharhinus plumbeus).
* * * * *
    Shark research permit means a permit issued to catch and land a 
limited number of sharks to maintain time series for stock assessments 
and for other scientific research purposes. These permits may be issued 
only to the owner of a vessel who has been issued either a directed or 
incidental shark LAP. The permit is specific to the commercial shark 
vessel and owner combination and is valid only per the terms and 
conditions listed on the permit.
* * * * *

0
6. In Sec.  635.4, paragraphs (a)(5) and (g)(2) are revised to read as 
follows:


Sec.  635.4  Permits and fees.

* * * * *
    (a) * * *
    (5) Display upon offloading. Upon offloading of Atlantic HMS, the 
owner or operator of the harvesting vessel must present for inspection 
the vessel's HMS Charter/Headboat permit; Atlantic tunas, shark, or 
swordfish permit; and/or the shark research permit to the first 
receiver. The permit(s) must be presented prior to completing any 
applicable landing report specified at Sec.  635.5(a)(1), (a)(2), and 
(b)(2)(i).
* * * * *
    (g) * * *
    (2) Shark. A first receiver, as defined in Sec.  635.2, of Atlantic 
sharks must possess a valid dealer permit.
* * * * *

0
7. In Sec.  635.5, paragraphs (b)(1)(i), (b)(1)(ii), and (b)(1)(iv) are 
revised to read as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (b) * * *
    (1) * * *
    (i) Dealers that have been issued or should have been issued an 
Atlantic

[[Page 40708]]

tunas, swordfish, and/or sharks dealer permit under Sec.  635.4 must 
submit to NMFS all reports required under this section. All reports 
must be species-specific, must include information about all HMS 
landed, regardless of where harvested or whether the vessel is 
federally permitted under Sec.  635.4 and, for sharks, must specify the 
total shark fin weight separately from the weight of the shark carcass. 
As stated in Sec.  635.4(a)(6), failure to comply with these 
recordkeeping and reporting requirements may result in the existing 
dealer permit being revoked, suspended, or modified, and in the denial 
of any permit applications.
    (ii) Reports of Atlantic tunas, swordfish, and/or sharks received 
by dealers from U.S. vessels, as defined under Sec.  600.10 of this 
chapter, on the first through the 15\th\ of each month, must be 
received by NMFS not later than the 25\th\ of that month. Reports of 
Atlantic tunas, swordfish, and/or sharks received on the 16\th\ through 
the last day of each month must be received by NMFS not later than the 
10th of the following month. If a dealer issued an Atlantic tunas, 
swordfish, or sharks dealer permit under Sec.  635.4 has not received 
any Atlantic HMS from U.S. vessels during a reporting period as 
specified in this section, he or she must still submit the report 
required under paragraph (b)(1)(i) of this section stating that no 
Atlantic HMS were received. This negative report must be received by 
NMFS for the applicable reporting period as specified in this section. 
This negative reporting requirement does not apply for bluefin tuna.
* * * * *
    (iv) The dealer may mail or fax such report to an address 
designated by NMFS or may hand-deliver such report to a state or 
Federal fishery port agent designated by NMFS. If the dealer hand-
delivers the report to a port agent, the dealer must deliver such 
report for Atlantic tunas, swordfish, or sharks no later than the 
prescribed received-by date for the reporting period, as required in 
paragraphs (b)(1)(i) and (ii) of this section.
* * * * *

0
8. In Sec.  635.21, paragraphs (d)(1)(i), (d)(1)(ii), and (d)(3)(ii) 
are revised, and paragraph (d)(1)(iii) is added to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (d) * * *
    (1) * * *
    (i) The mid-Atlantic shark closed area from January 1 through July 
31 each calendar year;
    (ii) The areas designated at Sec.  622.33(a)(1) through (3) of this 
chapter, year-round; and
    (iii) The areas described in paragraphs (d)(1)(iii)(A) through (H) 
of this section, year-round.
    (A) Snowy Grouper Wreck. Bounded by rhumb lines connecting, in 
order, the following points:

------------------------------------------------------------------------
         Point                  North lat.              West long.
------------------------------------------------------------------------
A                        33[deg]25'               77[deg]04.75'
------------------------------------------------------------------------
B                        33[deg]34.75'            76[deg]51.3'
------------------------------------------------------------------------
C                        33[deg]25.5'             76[deg]46.5'
------------------------------------------------------------------------
D                        33[deg]15.75'            77[deg]00.0'
------------------------------------------------------------------------
A                        33[deg]25'               77[deg]04.75'
------------------------------------------------------------------------

    (B) South Carolina A. Bounded on the north by 32[deg]53.5' N. lat.; 
on the south by 32[deg]48.5' N. lat.; on the east by 78[deg]04.75' W. 
long.; and on the west by 78[deg]16.75' W. long.
    (C) Edisto. Bounded on the north by 32[deg]24' N. lat.; on the 
south by 32[deg]18.5' N. lat.; on the east by 78[deg]54.0' W. long.; 
and on the west by 79[deg]06.0' W. long.
    (D) Charleston Deep Artificial Reef. Bounded by rhumb lines 
connecting, in order, the following points:

------------------------------------------------------------------------
         Point                  North lat.              West long.
------------------------------------------------------------------------
A                        32[deg]04'               79[deg]12'
------------------------------------------------------------------------
B                        32[deg]08.5'             79[deg]07.5'
------------------------------------------------------------------------
C                        32[deg]06'               79[deg]05'
------------------------------------------------------------------------
D                        32[deg]01.5'             79[deg]09.3'
------------------------------------------------------------------------
A                        32[deg]04'               79[deg]12'
------------------------------------------------------------------------

    (E) Georgia. Bounded by rhumb lines connecting, in order, the 
following points:

------------------------------------------------------------------------
         Point                  North lat.              West long.
------------------------------------------------------------------------
A                        31[deg]43'               79[deg]31'
------------------------------------------------------------------------
B                        31[deg]43'               79[deg]21'
------------------------------------------------------------------------
C                        31[deg]34'               79[deg]29'
------------------------------------------------------------------------
D                        31[deg]34'               79[deg]39'
------------------------------------------------------------------------
A                        31[deg]43'               79[deg]31'
------------------------------------------------------------------------

    (F) North Florida. Bounded on the north by 30[deg]29' N. lat.; on 
the south by 30[deg]19' N. lat.; on the east by 80[deg]02' W. long.; 
and on the west by 80[deg]14' W. long.
    (G) St. Lucie Hump. Bounded on the north by 27[deg]08' N. lat.; on 
the south by 27[deg]04' N. lat.; on the east by 79[deg]58' W. long.; 
and on the west by 80[deg]00' W. long.
    (H) East Hump. Bounded by rhumb lines connecting, in order, the 
following points:

------------------------------------------------------------------------
         Point                  North lat.              West long.
------------------------------------------------------------------------
A                        24[deg]36.5'             80[deg]45.5'
------------------------------------------------------------------------
B                        24[deg]32'               80[deg]36'
------------------------------------------------------------------------
C                        24[deg]27.5'             80[deg]38.5'
------------------------------------------------------------------------
D                        24[deg]32.5'             80[deg]48'
------------------------------------------------------------------------
A                        24[deg]36.5'             80[deg]45.5'
------------------------------------------------------------------------

* * * * *
    (3) * * *
    (ii) Handling and release requirements. Sea turtle bycatch 
mitigation gear, as required by paragraph (d)(3)(i) of this section, 
must be used to disengage any hooked or entangled sea turtle as stated 
in paragraph (c)(5)(ii) of this section. This mitigation gear should 
also be employed to disengage any hooked or entangled species of 
prohibited sharks as listed under heading D of Table 1 of Appendix A of 
this part, any hooked or entangled species of sharks that exceed the 
retention limits as specified in Sec.  635.24(a), and any hooked or 
entangled smalltooth sawfish. In addition, if a smalltooth sawfish is 
caught, the fish should be kept in the water while maintaining water 
flow over the gills and the fish should be examined for research tags. 
All smalltooth sawfish must be released in a manner that will ensure 
maximum probability of survival, but without removing the fish from the 
water or any research tags from the fish.
* * * * *

0
9. In Sec.  635.22, paragraph (c) is revised to read as follows:


Sec.  635.22  Recreational retention limits.

* * * * *
    (c) Sharks. (1) One of each of the following sharks may be retained 
per vessel per trip, subject to the size limits described in Sec.  
635.20(e): any of the non-ridgeback sharks listed under heading A.2 of 
Table 1 in Appendix A of this part, tiger (Galeocerdo cuvieri), blue 
(Prionace glauca), common thresher (Alopias vulpinus), oceanic whitetip 
(Carcharhinus longimanus), porbeagle (Lamna nasus), shortfin mako 
(Isurus oxyricnchus), Atlantic sharpnose (Rhizoprionodon terraenovae), 
finetooth (C. isodon), blacknose (C. acronotus), and bonnethead 
(Sphyrna tiburo).
    (2) In addition to the shark listed under paragraph (c)(1) of this 
section, one Atlantic sharpnose shark and one bonnethead shark may be 
retained per person per trip. Regardless of the length

[[Page 40709]]

of a trip, no more than one Atlantic sharpnose shark and one bonnethead 
shark per person may be possessed on board a vessel.
    (3) No prohibited sharks, including parts or pieces of prohibited 
sharks, which are listed in Table 1 of Appendix A to this part under 
prohibited sharks, may be retained regardless of where harvested.
    (4) The recreational retention limit for sharks applies to any 
person who fishes in any manner, except to persons aboard a vessel that 
has been issued an Atlantic incidental or directed shark LAP under 
Sec.  635.4. If a commercial Atlantic shark quota is closed under Sec.  
635.28, the recreational retention limit for sharks and no sale 
provision in paragraph (a) of this section may be applied to persons 
aboard a vessel issued an Atlantic incidental or directed shark LAP 
under Sec.  635.4, only if that vessel has also been issued an HMS 
Charter/Headboat permit issued under Sec.  635.4 and is engaged in a 
for-hire fishing trip.
* * * * *

0
10. In Sec.  635.24, paragraph (a) is revised to read as follows:


Sec.  635.24  Commercial retention limits for sharks and swordfish.

* * * * *
    (a) Sharks. (1) A person who owns or operates a vessel that has 
been issued a valid shark research permit under Sec.  635.32(f) and who 
has a NMFS-approved observer on board may retain, possess, or land LCS, 
including sandbar sharks, in excess of the retention limits in 
paragraphs (a)(2) through (6) of this section. The amount of LCS that 
can be landed by such a person will vary as specified on the shark 
research permit. Only a person who owns or operates a vessel issued a 
valid shark research permit with a NMFS-approved observer on board may 
retain, possess, or land sandbar sharks.
    (2) From July 24, 2008 through December 31, 2012, a person who owns 
or operates a vessel that has been issued a directed LAP for sharks and 
does not have a valid shark research permit, or a person who owns or 
operates a vessel that has been issued a directed LAP for sharks and 
that has been issued a valid shark research permit but does not have a 
NMFS-approved observer on board, may retain, possess, or land no more 
than 33 non-sandbar LCS per vessel per trip if the fishery is open per 
Sec.  635.27 and Sec.  635.28. Such persons may not retain, possess, or 
land sandbar sharks. As of January 1, 2013, a person who owns or 
operates a vessel that has been issued a directed LAP for sharks and 
does not have a valid shark research permit, or a person who owns or 
operates a vessel that has been issued a directed LAP for sharks and 
that has been issued a shark research permit but does not have a NMFS-
approved observer on board, may retain, possess, or land no more than 
36 non-sandbar LCS per vessel per trip if the fishery is open per Sec.  
635.27 and Sec.  635.28. Such persons may not retain, possess, or land 
sandbar sharks.
    (3) A person who owns or operates a vessel that has been issued an 
incidental LAP for sharks and does not have a valid shark research 
permit, or a person who owns or operates a vessel that has been issued 
an incidental LAP for sharks and that has been issued a valid shark 
research permit but does not have a NMFS-approved observer on board, 
may retain, possess, or land no more than 3 non-sandbar LCS per vessel 
per trip if the fishery is open per Sec.  635.27 and Sec.  635.28. Such 
persons may not retain, possess, or land sandbar sharks.
    (4) A person who owns or operates a vessel that has been issued a 
directed shark LAP may retain, possess, or land SCS and pelagic sharks 
if the SCS or pelagic shark fishery is open per Sec.  635.27 and Sec.  
635.28. A person who owns or operates a vessel that has been issued an 
incidental LAP for sharks may retain, possess, or land no more than 16 
SCS and pelagic sharks, combined, per trip, if the fishery is open per 
Sec.  635.27 and Sec.  635.28.
    (5) A person who owns or operates a vessel that has been issued an 
incidental or directed LAP for sharks may not retain, possess, land, 
sell, or purchase prohibited sharks, including any parts or pieces of 
prohibited sharks, which are listed in Table 1 of Appendix A to this 
part under prohibited sharks.
    (6) A person who owns or operates a vessel that has been issued 
either an incidental or directed LAP for sharks, and who decides to 
retain sharks, must retain, subject to the trip limits, all dead, 
legal-sized, non-prohibited sharks that are brought onboard the vessel 
and cannot replace those sharks with sharks of higher quality or size 
that are caught later in the trip. Any fish that are to be released 
cannot be brought onboard the vessel and must be released in the water 
in a manner that maximizes survival.
* * * * *

0
11. In Sec.  635.27, paragraphs (b)(1) and (2) are revised to read as 
follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) Commercial quotas. The commercial quotas for sharks specified 
in paragraphs (b)(1)(i) through (b)(1)(vi) of this section apply to all 
sharks harvested from the management unit, regardless of where 
harvested. Sharks taken and landed from state waters, even by fishermen 
without Federal shark permits, must be counted against the fishery 
quota. Commercial quotas are specified for each of the management 
groups of sandbar sharks, non-sandbar LCS, SCS, blue sharks, porbeagle 
sharks, and pelagic sharks other than blue or porbeagle sharks. Any 
sharks landed as unclassified will be counted against the appropriate 
species' quota based on the species composition calculated from data 
collected by observers on non-research trips and/or dealer data. No 
prohibited sharks, including parts or pieces of prohibited sharks, 
which are listed under heading D of Table 1 of Appendix A to this part, 
may be retained except as authorized under Sec.  635.32.
    (i) Fishing seasons. The fishing season for sandbar sharks, non-
sandbar LCS, small coastal sharks, and all pelagic sharks will begin on 
January 1 and end on December 31.
    (ii) Regions. (A) The commercial quotas for non-sandbar LCS are 
split between two regions: the Gulf of Mexico and the Atlantic. For the 
purposes of this section, the boundary between the Gulf of Mexico 
region and the Atlantic region is defined as a line beginning on the 
east coast of Florida at the mainland at 25[deg]20.4' N. lat, 
proceeding due east. Any water and land to the south and west of that 
boundary is considered, for the purposes of quota monitoring and 
setting of quotas, to be within the Gulf of Mexico region. Any water 
and land to the north and east of that boundary, for the purposes of 
quota monitoring and setting of quotas, is considered to be within the 
Atlantic region.
    (B) Except for non-sandbar LCS landed by a vessels issued a valid 
shark research permit with a NMFS-approved observer onboard, any non-
sandbar LCS reported by dealers located in the Florida Keys areas or in 
the Gulf of Mexico will be counted against the non-sandbar LCS Gulf of 
Mexico regional quota. Except for non-sandbar LCS landed by a vessels 
issued a valid shark research permit with a NMFS-approved observer 
onboard, any non-sandbar LCS reported by dealers located in the 
Atlantic region will be counted against the non-sandbar LCS Atlantic 
regional quota. Non-sandbar LCS landed by a vessel issued a valid shark 
research permit with a NMFS-approved observer onboard will be counted 
against the non-sandbar LCS research fishery quota using scientific 
observer reports.
    (iii) Sandbar sharks. The base annual commercial quota for sandbar 
sharks is 116.6 mt dw. However, from July 24,

[[Page 40710]]

2008 through December 31, 2012, to account for overharvests that 
occurred in 2007, the adjusted base quota is 87.9 mt dw. Both the base 
quota and the adjusted base quota may be further adjusted per paragraph 
(b)(1)(vii) of this section. This quota is available only to the owners 
of commercial shark vessels that have been issued a valid shark 
research permit and that have a NMFS-approved observer onboard.
    (iv) Non-sandbar LCS. The total base quota for non-sandbar LCS is 
677.8 mt dw. This base quota is split between the two regions and the 
shark research fishery as follows: Gulf of Mexico = 439.5 mt dw; 
Atlantic = 188.3 mt dw; and Shark Research Fishery = 50 mt dw. However, 
from July 24, 2008 through December 31, 2012, to account for 
overharvests that occurred in 2007, the total adjusted base quota is 
615.8 mt dw. This adjusted base quota is split between the regions and 
the shark research fishery as follows: Gulf of Mexico = 390.5 mt dw; 
Atlantic = 187.8 mt dw; and Shark Research Fishery = 37.5 mt dw. Both 
the base quota and the adjusted base quota may be further adjusted per 
paragraph (b)(1)(vii) of this section.
    (v) Small coastal sharks. The base annual commercial quota for 
small coastal sharks is 454 mt dw, unless adjusted pursuant to 
paragraph (b)(1)(vii) of this section.
    (vi) Pelagic sharks. The base annual commercial quotas for pelagic 
sharks are 273 mt dw for blue sharks, 1.7 mt dw for porbeagle sharks, 
and 488 mt dw for pelagic sharks other than blue sharks or porbeagle 
sharks, unless adjusted pursuant to paragraph (b)(1)(vii) of this 
section.
    (vii) Annual adjustments. NMFS will publish in the Federal Register 
any annual adjustments to the base annual commercial quotas or the 2008 
through 2012 adjusted base quotas. The base annual quota and the 
adjusted base annual quota will not be available, and the fishery will 
not open, until such adjustments are published and effective in the 
Federal Register.
    (A) Overharvests. If the available quota for sandbar sharks, small 
coastal, porbeagle shark, and pelagic sharks other than blue or 
porbeagle sharks is exceeded in any fishing season, NMFS will deduct an 
amount equivalent to the overharvest(s) from the following fishing 
season or, depending on the level of overharvest(s), NMFS may deduct an 
amount equivalent to the overharvest(s) spread over a number of 
subsequent fishing seasons to a maximum of five years. If the annual 
quota in a particular region or in the research fishery for non-sandbar 
LCS is exceeded in any fishing season, NMFS will deduct an amount 
equivalent to the overharvest(s) from the following fishing season or, 
depending on the level of overharvest(s), NMFS may deduct an amount 
equivalent to the overharvest(s) spread over a number of subsequent 
fishing seasons to a maximum of five years, in the specific region or 
research fishery where the overharvest occurred. If the blue shark 
quota is exceeded, NMFS will reduce the annual commercial quota for 
pelagic sharks by the amount that the blue shark quota is exceeded 
prior to the start of the next fishing season or, depending on the 
level of overharvest(s), deduct an amount equivalent to the 
overharvest(s) spread over a number of subsequent fishing seasons to a 
maximum of five years.
    (B) Underharvests. If an annual quota for sandbar sharks, SCS, blue 
sharks, porbeagle sharks, or pelagic sharks other than blue or 
porbeagle is not exceeded, NMFS may adjust the annual quota depending 
on the status of the stock or quota group. If the annual quota for non-
sandbar LCS is not exceeded in either region or in the research 
fishery, NMFS may adjust the annual quota for that region or the 
research fishery depending on the status of the stock or quota group. 
If the stock (e.g., sandbar shark, porbeagle shark, pelagic shark, or 
blue shark) or specific species within a quota group (e.g., non-sandbar 
LCS or SCS) is declared to be overfished, to have overfishing 
occurring, or to have an unknown status, NMFS will not adjust the 
following fishing year's quota for any underharvest, and the following 
fishing year's quota will be equal to the base annual quota (or the 
adjusted base quota for sandbar and non-sandbar LCS until December 31, 
2012). If the stock is not declared to be overfished, to have 
overfishing occurring, or to have an unknown status, NMFS may increase 
the following year's base annual quota (or the adjusted base quota for 
sandbar and non-sandbar LCS until December 31, 2012) by an equivalent 
amount of the underharvest up to 50 percent above the base annual 
quota. For the non-sandbar LCS fishery, underharvests are not 
transferable between regions and/or the research fishery.
    (2) Public display and non-specific research quota. The base annual 
quota for persons who collect non-sandbar LCS, SCS, pelagic sharks, 
blue sharks, porbeagle sharks, or prohibited species under a display 
permit or EFP is 57.2 mt ww (41.2 mt dw). The base annual quota for 
persons who collect sandbar sharks under a display permit is 1.4 mt ww 
(1 mt dw) and under an EFP is 1.4 mt ww (1 mt dw). No persons may 
collect dusky sharks under a display permit or EFP. All sharks 
collected under the authority of a display permit or EFP, subject to 
restrictions at Sec.  635.32, will be counted against these quotas.
* * * * *

0
12. In Sec.  635.28, paragraphs (b)(1) through (3) are revised to read 
as follows:


Sec.  635.28  Closures.

* * * * *
    (b) * * *
    (1) If quota is available as specified by a publication in the 
Federal Register, the commercial fisheries for sandbar shark, non-
sandbar LCS, SCS, porbeagle sharks, blue sharks, and pelagic sharks 
other than blue or porbeagle sharks will remain open as specified at 
Sec.  635.27(b)(1).
    (2) When NMFS calculates that the fishing season landings for 
sandbar shark, non-sandbar LCS, SCS, blue sharks, porbeagle sharks, or 
pelagic sharks other than blue or porbeagle sharks has reached or is 
projected to reach 80 percent of the available quota as specified in 
Sec.  635.27(b)(1), NMFS will file for publication with the Office of 
the Federal Register a notice of closure for that shark species group 
and/or region that will be effective no fewer than 5 days from date of 
filing. From the effective date and time of the closure until NMFS 
announces, via a notice in the Federal Register, that additional quota 
is available and the season is reopened, the fishery for the shark 
species group and, for non-sandbar LCS, region is closed, even across 
fishing years.
    (3) When the fishery for a shark species group and/or region is 
closed, a fishing vessel, issued an Atlantic Shark LAP pursuant to 
Sec.  635.4, may not possess or sell a shark of that species group and/
or region, except under the conditions specified in Sec.  635.22(a) and 
(c) or if the vessel possesses a valid shark research permit under 
Sec.  635.32 and an NMFS-approved observer is onboard. A shark dealer, 
issued a permit pursuant to Sec.  635.4, may not purchase or receive a 
shark of that species group and/or region from a vessel issued an 
Atlantic Shark LAP, except that a permitted shark dealer or processor 
may possess sharks that were harvested, off-loaded, and sold, traded, 
or bartered, prior to the effective date of the closure and were held 
in storage. Additionally, a permitted shark dealer or processor may 
possess non-sandbar sharks that were harvested by a vessel issued a 
valid shark research permit with a NMFS-approved observer onboard as 
long as the non-sandbar shark research

[[Page 40711]]

fishery is open. Under a closure for a shark species group, a shark 
dealer, issued a permit pursuant to Sec.  635.4 may, in accordance with 
state regulations, purchase or receive a shark of that species group if 
the sharks were harvested, off-loaded, and sold, traded, or bartered 
from a vessel that fishes only in state waters and that has not been 
issued a Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit 
pursuant to Sec.  635.4. Additionally, under a closure for a shark 
species group and/or regional closure, a shark dealer, issued a permit 
pursuant, to Sec.  635.4 may purchase or receive a shark of that 
species group if the sharks were harvested, off-loaded, and sold, 
traded, or bartered from a vessel issued a valid shark research permit 
(per Sec.  635.32) that had a NMFS-approved observer on board during 
the trip sharks were collected.
* * * * *

0
13. In Sec.  635.30, paragraphs (c)(1) through (4) are revised to read 
as follows:


Sec.  635.30  Possession at sea and landing.

* * * * *
    (c) * * *
    (1) Notwithstanding the regulations issued at part 600, subpart N 
of this chapter, a person who owns or operates a vessel issued a 
Federal Atlantic commercial shark LAP must maintain all the shark fins 
including the tail on the shark carcass until the shark has been 
offloaded from the vessel. While sharks are on board and when sharks 
are being offloaded, persons issued a Federal Atlantic commercial shark 
LAP are subject to the regulations at part 600, subpart N, of this 
chapter.
    (2) A person who owns or operates a vessel that has a valid Federal 
Atlantic commercial shark LAP must maintain the shark intact through 
offloading except that the shark may be dressed. All fins, including 
the tail, must remain naturally attached to the shark through 
offloading. While on the vessel, fins may be sliced so that the fin can 
be folded along the carcass for storage purposes as long as the fin 
remains naturally attached to the carcass via at least a small portion 
of uncut skin. The fins and tail may only be removed from the carcass 
once the shark has been landed and offloaded.
    (3) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark LAP and who lands sharks in an 
Atlantic coastal port must have all fins and carcasses weighed and 
recorded on the weighout slips specified in Sec.  635.5(a)(2) and in 
accordance with regulations at part 600, subpart N, of this chapter. 
Persons may not possess any shark fins not naturally attached to a 
shark carcass on board a fishing vessel at any time.
    (4) Persons aboard a vessel that does not have a commercial permit 
for shark must maintain a shark in or from the EEZ intact through 
landing with the head, tail, and all fins attached. The shark may be 
bled.
* * * * *

0
14. In Sec.  635.31, paragraphs (c)(1) and (c)(4) are revised to read 
as follows:


Sec.  635.31  Restrictions on sale and purchase.

* * * * *
    (c) * * *
    (1) Persons that own or operate a vessel that possesses a shark 
from the management unit may sell such shark only if the vessel has a 
valid commercial shark permit issued under this part. Persons may 
possess and sell a shark only when the fishery for that species group 
and/or region has not been closed, as specified in Sec.  635.28(b).
* * * * *
    (4) Only dealers that have a valid shark dealer permit may purchase 
shark from the owner or operator of a fishing vessel. Dealers may 
purchase a shark only from an owner or operator of a vessel who has a 
valid commercial shark permit issued under this part, except that 
dealers may purchase a shark from an owner or operator of a vessel that 
does not have a commercial permit for shark if that vessel fishes 
exclusively in state waters. Dealers may purchase a sandbar shark only 
from an owner or operator of a vessel who has a valid shark research 
permit and who had a NMFS-approved observer onboard the vessel for the 
trip in which the sandbar shark was collected. Dealers may purchase a 
shark from an owner or operator of fishing vessel that has a permit 
issued under this part only when the fishery for that species group 
and/or region has not been closed, as specified in Sec.  635.28(b).
* * * * *

0
15. In Sec.  635.32, paragraphs (a)(2), (f), and (g) are revised and 
paragraph (h) is added to read as follows:


Sec.  635.32  Specifically authorized activities.

    (a) * * *
    (2) Activities subject to the provisions of this section include, 
but are not limited to: scientific research resulting in, or likely to 
result in, the take, harvest, or incidental mortality of Atlantic HMS; 
exempted fishing and educational activities; programs under which 
regulated species retained in contravention to otherwise applicable 
regulations may be donated through approved food bank networks; or 
chartering arrangements. Such activities must be authorized in writing 
and are subject to all conditions specified in any letter of 
acknowledgment, EFP, scientific research permit, display permit, 
chartering permit, or shark research permit issued in response to 
requests for authorization under this section.
* * * * *
    (f) Shark research permits. (1) For activities consistent with the 
purposes of this section and Sec.  600.745(b)(1) of this chapter, NMFS 
may issue shark research permits.
    (2) Notwithstanding the provisions of Sec.  600.745 of this chapter 
and other provisions of this part, a valid shark research permit is 
required to fish for, take, retain, or possess Atlantic sharks, 
including sandbar sharks, in excess of the retention limits described 
in Sec.  635.24(a). A valid shark research permit must be on board the 
harvesting vessel, must be available for inspection when the shark is 
landed, and must be presented for inspection upon request of an 
authorized officer. A shark research permit is only valid for the 
vessel and owner(s) combination specified and cannot be transferred to 
another vessel or owner(s). A shark research permit is only valid for 
the retention limits, time, area, gear specified, and other terms and 
conditions as listed on the permit and only when a NMFS-approved 
observer is onboard. Species landed under a shark research permit shall 
be counted against the appropriate quota specified in Sec.  635.27 or 
as otherwise provided in the shark research permit.
    (3) Regardless of the number of applicants, NMFS will issue only a 
limited number of shark research permits depending on available quotas 
as described in Sec.  635.27, research needs for stock assessments and 
other scientific purposes, and the number of sharks expected to be 
harvested by vessels issued LAPs for sharks.
    (4) In addition to the workshops required under Sec.  635.8, 
persons issued a shark research permit, and/or operators of vessels 
specified on the shark research permit, may be required to attend other 
workshops (e.g., shark identification workshops, captain's meeting, 
etc.) as deemed necessary by NMFS to ensure the collection of high 
quality data.
    (5) Issuance of a shark research permit does not guarantee the 
permit holder that a NMFS-approved observer will be deployed on any 
particular trip. Rather, permit issuance indicates that a vessel is 
eligible for a NMFS-approved

[[Page 40712]]

observer to be deployed on the vessel for a particular trip and that, 
on such observed trips, the vessel may be allowed to harvest Atlantic 
sharks, including sandbar sharks, in excess of the retention limits 
described in Sec.  635.24(a).
    (6) The shark research permit may be revoked, limited, or modified 
at any time, does not confer any right to engage in activities beyond 
those authorized by the permit, and does not confer any right of 
compensation to the holder.
    (g) Applications and renewals. (1) Application procedures shall be 
as indicated under Sec.  600.745(b)(2) of this chapter, except that 
NMFS may consolidate requests for the purpose of obtaining public 
comment. In such cases, NMFS may file with the Office of the Federal 
Register, on an annual or more frequent basis as necessary, 
notification of previously authorized exempted fishing, scientific 
research, public display, chartering, and shark research activities and 
to solicit public comment on anticipated EFP, scientific research 
permit, letter of acknowledgment, public display, chartering, or shark 
research permit activities. Applications for EFPs, scientific research 
permits, public display permits, chartering permits, or shark research 
permits are required to include all reports specified in the 
applicant's previous permit including, if applicable, the year-end 
report, all delinquent reports for permits issued in prior years, and 
all other specified information. In situations of delinquent reports, 
applications will be deemed incomplete and a permit will not be issued 
under this section.
    (2) For the shark research permit, NMFS will publish annually, in a 
Federal Register notice(s), a description for the following fishing 
year of the expected research objectives. This description may include 
information such as the number of vessels needed, regions and seasons 
for which vessels are needed, the specific criteria for selection, and 
the application deadline. Complete applications, including all 
information requested in the applicable Federal Register notice(s) and 
on the application form and any previous reports required pursuant to 
this section and Sec.  635.5, must be received by NMFS by the 
application deadline in order for the vessel to be considered. 
Requested information could include, but is not limited to, applicant 
name and address, permit information, vessel information, availability 
of the vessel, past involvement in the shark fishery, and compliance 
with HMS regulations including observer regulations. NMFS will only 
review complete applications received by the published deadline to 
determine eligibility for participation in the shark research fishery. 
Qualified vessels will be chosen based on the information provided on 
the applications and their ability to meet the selection criteria as 
published in the Federal Register notice. A commercial shark permit 
holder whose vessel was selected to carry an observer in the previous 
two years for any HMS fishery but failed to comply with the observer 
regulations specified in Sec.  635.7 will not be considered. A 
commercial shark permit holder that has been charged criminally or 
civilly (i.e., issued a Notice of Violation and Assessment (NOVA) or 
Notice of Permit Sanction) for any HMS related violation will not be 
considered for participation in the shark research fishery. Qualified 
vessels will be randomly selected to participate in the shark research 
fishery based on their availability and the temporal and spatial needs 
of the research objectives. If a vessel issued a shark research permit 
cannot conduct the shark research tasks, for whatever reason, that 
permit will be revoked and, depending on the status of the research and 
the fishing year, NMFS will randomly select another qualified vessel to 
be issued a shark research permit.
    (h) Terms and conditions. (1) For EFPs, scientific research 
permits, and public display permits: Written reports on fishing 
activities, and disposition of all fish captured under a permit issued 
under this section must be submitted to NMFS within 5 days of return to 
port. NMFS will provide specific conditions and requirements as needed, 
consistent with the Consolidated HMS Fishery Management Plan, in the 
permit. If an individual issued a Federal permit under this section 
captures no HMS in any given month, either in or outside the EEZ, a 
``no-catch'' report must be submitted to NMFS within 5 days of the last 
day of that month.
    (2) For chartering permits, written reports of fishing activities 
must be submitted to NMFS by a date specified, and to an address 
designated, in the terms and conditions of each chartering permit.
    (3) An annual written summary report of all fishing activities, and 
disposition of all fish captured, under the permit must be submitted to 
NMFS for all EFPs, scientific research permits, display permits, and 
chartering permits issued under this section within 30 days after the 
expiration date of the permit.
    (4) For shark research permits, all owners and/or operators must 
comply with the recordkeeping and reporting requirements specified in 
Sec.  635.5 per the requirement of holding a LAP for sharks.
    (5) As stated in Sec.  635.4(a)(6), failure to comply with the 
recordkeeping and reporting requirements of this section could result 
in the EFP, scientific research permit, display permit, chartering 
permit, or shark research permit being revoked, suspended, or modified, 
and in the denial of any future applications.

0
16. In Sec.  635.69, paragraph (a) introductory text is revised to read 
as follows:


Sec.  635.69  Vessel monitoring systems.

    (a) Applicability. To facilitate enforcement of time/area and 
fishery closures, an owner or operator of a commercial vessel, 
permitted to fish for Atlantic HMS under Sec.  635.4 and that fishes 
with a pelagic or bottom longline or gillnet gear, is required to 
install a NMFS-approved vessel monitoring system (VMS) unit on board 
the vessel and operate the VMS unit under the following circumstances:
* * * * *

0
17. In Sec.  635.71, paragraphs (a)(2), (a)(4), (a)(6), (d)(3), (d)(4), 
(d)(6) through (8), and (d)(10) are revised and paragraphs (d)(15), 
(d)(16), and (d)(17) are added to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (2) Fish for, catch, possess, retain, or land Atlantic HMS without 
the appropriate valid vessel permit, LAP, EFP, scientific research 
permit, display permit, chartering permit, or shark research permit on 
board the vessel, as specified in Sec. Sec.  635.4 and 635.32.
* * * * *
    (4) Sell or transfer or attempt to sell or transfer, for commercial 
purposes, an Atlantic tuna, shark, or swordfish other than to a dealer 
that has a valid dealer permit issued under Sec.  635.4, except that 
this does not apply to a shark harvested by a vessel that has not been 
issued a permit under this part and that fishes exclusively within the 
waters under the jurisdiction of any state.
* * * * *
    (6) Falsify or fail to record, report, or maintain information 
required to be recorded, reported, or maintained, as specified in 
Sec. Sec.  635.5 and 635.32 or in the terms and conditions of a permit 
issued under Sec.  635.4 or an EFP, scientific research permit, display 
permit, chartering permit, or shark research permit issued under Sec.  
635.32.
* * * * *
    (d) * * *

[[Page 40713]]

    (3) Retain, possess, or land a shark of a species group when the 
fishery for that species group and/or region is closed, as specified in 
Sec.  635.28(b).
    (4) Sell or purchase a shark of a species group when the fishery 
for that species group and/or region is closed, as specified in Sec.  
635.28(b).
* * * * *
    (6) Fail to maintain a shark in its proper form, as specified in 
Sec.  635.30(c). Fail to maintain naturally attached shark fins through 
offloading as specified in Sec.  635.30(c).
    (7) Sell or purchase shark fins that are disproportionate to the 
weight of shark carcasses, as specified in Sec.  635.30(c) and Sec.  
600.1204(e) and (l) of this chapter.
    (8) Fail to have shark fins and carcasses weighed and recorded, as 
specified in Sec.  635.30(c).
* * * * *
    (10) Retain, possess, sell, or purchase a prohibited shark, 
including parts or pieces of prohibited sharks, as specified under 
Sec. Sec.  635.22(c), 635.24(a), and 635.27(b), or fail to disengage 
any hooked or entangled prohibited shark with the least harm possible 
to the animal as specified at Sec.  635.21(d).
* * * * *
    (15) Sell or transfer or attempt to sell or transfer a shark or 
sharks or part of a shark or sharks in excess of the retention limits 
specified in Sec.  635.24(a).
    (16) Purchase, receive, or transfer or attempt to purchase, 
receive, or transfer a shark or sharks or part of a shark or sharks 
landed in excess of the retention limits specified in Sec.  635.24(a).
    (17) Replace sharks that are onboard the vessel for retention with 
sharks of higher quality or size that are caught later in a particular 
trip as specified in Sec.  635.24(a).
* * * * *
[FR Doc. E8-13961 Filed 6-23-08; 8:45 am]

    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.

[FR Doc. R8-13961 Filed 7-14-08; 8:45 am]
BILLING CODE 1505-01-D


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