30484 Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 600 and 635 

[Docket No. 080519678–0217–02] 

RIN 0648–AW65 

Atlantic Highly Migratory Species; 

Atlantic Shark Management Measures; 

Amendment 3 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS publishes this final 

rule implementing the Final 

Amendment 3 to the Consolidated 

Atlantic Highly Migratory Species 

(HMS) Fishery Management Plan (FMP). 

As it developed Amendment 3, NMFS 

examined a full range of management 

alternatives available to rebuild 

blacknose sharks and end overfishing of 

blacknose and shortfin mako sharks, 

consistent with recent stock 

assessments, the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act), and other 

applicable law, and evaluated options 

for managing smooth dogfish as a highly 

migratory species under the HMS FMP. 

This final rule implements the final 

conservation and management measures 

in Amendment 3 for blacknose sharks, 

shortfin mako sharks, and smooth 

dogfish. In order to reduce confusion 

with spiny dogfish regulations, this final 

rule places both smooth dogfish and 

Florida smoothhound into the 

‘‘smoothhound shark complex.’’ This 

final rule also announces the opening 

date and 2010 annual quotas for small 

coastal sharks (SCS). These changes 

could affect all fishermen, commercial 

and recreational, who fish for sharks in 

the Atlantic Ocean, the Gulf of Mexico, 

and the Caribbean Sea. 

DATES: The SCS fishery opens on June 

1, 2010. 

This final rule is effective on July 1, 

2010, except for the amendments to 

§§ 635.27(b)(1)(i) through (v) and 

635.28(b) which will be effective on 

June 1, 2010. 

However, §§ 635.4(e)(4), 635.20(e)(4), 

635.22(c)(6), 635.24(a)(7), 

635.27(b)(1)(vi), 635.27(b)(2)(iv), and 

section E of Table 1 of Appendix A, 

contain information collection 

requirements which are pending 

approval by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act (PRA). A document will 

be published in the Federal Register 

announcing the effective date of those 

provisions when they are approved. 

ADDRESSES: Copies of the final 

Amendment 3 to the Consolidated HMS 

FMP, including the Final Environmental 

Impact Statement (FEIS), the latest shark 

stock assessments, and other documents 

relevant to this rule are available from 

the Highly Migratory Species 

Management Division Web site at http:// 

www.nmfs.noaa.gov/sfa/hms or by 

contacting LeAnn Southward Hogan or 

Karyl Brewster-Geisz at 301–713–2347. 

Hard copies may also be requested by 

writing to the HMS Management 

Division, 1315 East-West Highway, 

Silver Spring, MD 20910, or faxing to 

(301) 713–1917. 

NMFS has not yet submitted an 

application to OMB for approval of the 

collection-of-information regarding the 

smoothhound shark permit. The 

implementation of this specific 

requirement is delayed pending 

approval by OMB. Once submitted, 

written comments regarding the burdenhour estimates or other aspects of the 

collection-of-information requirements 

may be submitted to Karyl BrewsterGeisz (see above) and by e-mail to 

David_Rostker@omb.eop.gov or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Karyl Brewster-Geisz or LeAnn 

Southward Hogan at 301–713–2347 or 

fax 301–713–1917 or Jackie Wilson at 

240–338–3936 or fax 404–806–9188. 

SUPPLEMENTARY INFORMATION: 

Background 

The Atlantic shark fisheries have been 

managed by the Secretary pursuant to 

the HMS FMP for Atlantic sharks 

prepared under the authority of the 

Magnuson-Stevens Act Sections 

302(a)(3) and 304(g) in 1993 (1993 

FMP). NMFS revised the 1993 FMP to 

include swordfish and tunas in the 1999 

FMP for Atlantic Tunas, Swordfish, and 

Sharks (1999 FMP). After amending the 

1999 FMP in 2003, NMFS consolidated 

the Atlantic tunas, swordfish, and shark 

FMP and its amendments with the 

Atlantic billfish FMP and its 

amendments creating the 2006 

Consolidated Atlantic HMS FMP. 

Amendments 1 and 2 amended the 2006 

Consolidated HMS FMP in 2009 and 

2008, respectively. Amendment 3 

further amends the 2006 Consolidated 

HMS FMP. The 2006 Consolidated HMS 

FMP and its amendments are 

implemented by regulations codified at 

50 CFR part 635. 

On May 7, 2008, NMFS announced its 

determination that blacknose sharks are 

overfished with overfishing occurring 

while Atlantic sharpnose sharks, 

bonnethead sharks, and finetooth sharks 

are not overfished and are not 

experiencing overfishing (73 FR 25665). 

These determinations were based on the 

results of the 2007 SCS stock 

assessment, which was conducted in a 

manner similar to the Southeast Data 

Assessment and Review (SEDAR) 

process that is used by the South 

Atlantic, Gulf of Mexico, and Caribbean 

Fishery Management Councils. NMFS 

has found that this 2007 SCS stock 

assessment is the best available science 

regarding the status of SCS. The status 

determination criteria that are used to 

determine the status of Atlantic HMS 

are fully described in Chapter 3 of the 

1999 FMP, and fully incorporated in the 

2006 Consolidated HMS FMP, are 

summarized in other documents such as 

Amendment 3, and are not repeated 

here. 

NMFS has also determined that blue 

sharks are not overfished and 

overfishing is not occurring. With 

respect to shortfin mako sharks, 

however, NMFS has determined that the 

species while not overfished, is 

approaching an overfished condition, 

and is subject to overfishing. These 

determinations are based on 

international stock assessments 

conducted by the International 

Commission for the Conservation of 

Atlantic Tuna’s (ICCAT’s) Standing 

Committee for Research and Science 

(SCRS). While these assessments are 

international, the status determination 

criteria are the same as those used for 

SCS and all Atlantic shark species that 

are managed under the 2006 

Consolidated HMS FMP and its 

amendments. NMFS has determined the 

ICCAT stock assessment to be the best 

available science for managing shortfin 

mako and blue sharks. 

Under the Magnuson-Stevens Act, 

NMFS, when managing HMS on behalf 

of the Secretary, is required to take 

action to end overfishing, to rebuild an 

overfished fishery, and, if a fishery is 

approaching an overfished condition, 

take action to prevent overfishing from 

occurring. Since NMFS determined that 

the blacknose shark fishery was 

overfished, it was responsible for 

developing conservation and 

management measures to end 

overfishing and rebuild the fishery. 

Similarly, upon learning that the 

shortfin mako fishery was approaching 

an overfished condition, NMFS had a 

duty, taking into account the 

international nature of the fishery, to 

take appropriate action at the domestic 

or international level, to prevent 

overfishing of the shortfin mako sharks. 

NMFS announced its intent to develop 


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amendments to the 2006 Consolidated 

HMS FMP and prepare a corresponding 

environmental impact statement (EIS) 

on May 7, 2008 (73 FR 25665), and held 

five scoping meetings in 2008 (73 FR 

37932, July 2, 2008; 73 FR 53407, 

September 13, 2008). During scoping, 

NMFS also consulted with the HMS 

Advisory Panel in October 2008 (73 FR 

53407, September 13, 2008), the five 

Regional Fishery Management Councils 

on the east coast, and the Atlantic States 

and Gulf States Marine Fisheries 

Commissions. NMFS also presented 

information at a bycatch reduction 

workshop that was held by the Gulf and 

South Atlantic Fisheries Foundation. In 

February 2009, NMFS presented the 

Predraft of Amendment 3 to the HMS 

Advisory Panel (73 FR 67135, November 

13, 2008). 

In addition to potential measures to 

address overfished stocks and to end 

overfishing, during the scoping process, 

NMFS identified the need to add 

smooth dogfish into the management 

unit to provide for conservation and 

management of the species. Smooth 

dogfish was previously included as an 

HMS in a fishery management unit 

(FMU) that included deepwater and 

other sharks in order to prevent finning. 

These species were removed from the 

FMU in the 2003 Amendment 1 to the 

1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks since they were 

protected from finning under the Shark 

Finning Prohibition Act (67 FR 6124, 

February 11, 2002). As described below, 

based on comments and other reasons, 

NMFS has determined that conservation 

and management of smooth dogfish 

under the Magnuson-Stevens Act are 

warranted for several reasons including 

the need to collect data regarding the 

fishery, fishing effort, and life history of 

the species. 

Based in part on the comments 

received during scoping and from the 

HMS Advisory Panel on the Predraft, 

NMFS evaluated a full range of 

alternative management measures for 

blacknose sharks, SCS, shortfin mako 

sharks, and smooth dogfish within 

Amendment 3 (74 FR 36706 and 74 FR 

36892). The details of what NMFS 

proposed and the alternatives 

considered are described in the 

proposed rule and DEIS, which 

included Draft Amendment 3. Those 

documents are incorporated by 

reference and their description of 

management and conservation measures 

considered at the DEIS and proposed 

rule stage are not repeated here. In the 

proposed rule, NMFS announced nine 

public hearings from New Hampshire to 

Louisiana, and set a deadline for the 

public comment period, which was to 

end on September 22, 2009. On August 

10, 2009, the comment period was 

extended to September 25, 2009 (74 FR 

39914), to accommodate two public 

hearings scheduled on September 22, 

2009, and the New England Fishery 

Management Council meeting that was 

scheduled from September 22 through 

24, 2009. The draft Amendment 3 was 

presented to the South Atlantic (74 FR 

44352), Mid-Atlantic (74 FR 34556), 

Gulf of Mexico (74 FR 36669), Caribbean 

(74 FR 40168), and New England (74 FR 

45821) Fishery Management Councils. 

The draft Amendment 3 was also 

presented to ASMFC in August 2009. 

NMFS received a number of oral and 

written comments on the proposed rule. 

The significant comments and NMFS’ 

responses are summarized below under 

the section labeled ‘‘Response to 

Comments.’’ 

NMFS prepared an FEIS that 

discussed the direct, indirect and 

cumulative impacts on the quality of the 

human environment as a result of the 

preferred management measures 

identified for Amendment 3. The FEIS, 

including the final actions identified for 

Amendment 3, was made available in 

March 2010 (75 FR 13275, March 19, 

2010). On May 18, 2010, the Assistant 

Administrator for NOAA signed a 

Record of Decision adopting Final 

Amendment 3 to the 2006 Consolidated 

HMS FMP. Final Amendment 3 was 

comprised of the preferred alternatives 

identified by NMFS in the FEIS. A copy 

of the FEIS, including final Amendment 

3, is available from NMFS (see 

ADDRESSES). As described in the FEIS 

and the responses to comments below, 

and based in part on the public 

comments, NMFS made a number of 

changes to the preferred alternatives 

between the DEIS and FEIS. 

Corresponding changes were made, 

where appropriate, to Draft Amendment 

3 and the Proposed Rule resulting in 

Final Amendment 3 and this final rule. 

The specific changes are described 

below in the section titled ‘‘Changes 

from the Proposed Rule.’’ In brief, the 

final management measures 

implemented in this rule are: implement 

a non-blacknose SCS annual quota of 

221.6 mt dw; implement a blacknose 

shark annual quota of 19.9 mt dw; take 

action at the international level to end 

overfishing of shortfin mako sharks; 

promote in the domestic fishery the 

release of shortfin mako sharks brought 

to commercial and recreational fishing 

vessels alive; add smooth dogfish to the 

HMS management unit; establish a 

smooth dogfish annual quota of 715.5 

mt dw; require that smooth dogfish fins 

remain attached to the carcass through 

offloading; require commercial and 

recreational fishermen to obtain a 

permit authorizing landings of smooth 

dogfish caught in or transported through 

Federal waters; and make several 

administrative changes clarifying, 

correcting, and updating the regulations, 

as described in the proposed rule. 

Amendment 3 also finalized a 

mechanism for determining annual 

catch limits (ACLs) and establishing 

accountability measures (AMs) for the 

Atlantic shark fisheries managed in the 

2006 Consolidated HMS FMP and its 

amendments. 

In this rule, NMFS is placing both 

smooth dogfish and the Florida 

smoothhound into the ‘smoothhound 

complex.’ NMFS intends this name 

change to minimize any confusion with 

spiny dogfish regulations. Both smooth 

dogfish and the Florida smoothhound, 

which, as described in Amendment 3, 

are likely the same species, are found in 

the smoothhound family (Triakidae) 

and are the only members of the 

smoothhound family that are found on 

the Atlantic coast (there are other 

smoothhound sharks found in the 

Pacific Ocean). Spiny dogfish, which 

have been managed by the Mid-Atlantic 

Fishery Management Council (MAFMC) 

and New England Fishery Management 

Council (NEFMC) since the early 1990s, 

is often referred to as ‘dogfish’ and is 

found in the dogfish family (Squalidae). 

Thus, referring to ‘smoothhound’ in the 

regulations and requiring a 

smoothhound permit, rather than a 

smooth dogfish permit, should help in 

the long term to eliminate any confusion 

that might be caused by having two 

‘dogfish’ species and permits. NMFS 

expects some confusion in the short 

term as fishermen adjust to the use of a 

new term in the regulations. However, 

because common names of fish are often 

different in different regions (e.g., 

striped bass and rockfish), NMFS does 

not expect this confusion to last long. 

The effectiveness of all the 

smoothhound management measures in 

Final Amendment 3 and associated 

implementing regulations included in 

the final rule will be delayed until the 

start of the 2012 fishing season for 

smooth dogfish (approximately April 1, 

2012), pending approval for the data 

collection requirement under the PRA 

by OMB. NMFS is delaying 

implementation of those measures to 

provide time for affected fishermen to 

change business practices, particularly 

as it relates to keeping the fins attached 

to the carcass through offloading, and to 

provide time for implementing a permit 

requirement. NMFS is also delaying 

implementation to provide additional 

time to complete a smooth dogfish 


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biological opinion under Section 7 of 

the Endangered Species Act (ESA). 

NMFS will announce in a separate 

notice how to obtain a permit and any 

other relevant details regarding 

implementation of these or other 

smoothhound measures. 

During the comment period for the 

proposed rule, NMFS received many 

questions regarding the impetus for 

managing smooth dogfish. Over the 

course of this rulemaking process, a 

number of stakeholders have indicated, 

either in conjunction with or 

independent of this rulemaking, that 

management of smooth dogfish is 

necessary. These include environmental 

organizations that have specifically 

requested management action, the 

Atlantic States Marine Fisheries 

Commission (ASMFC) that included 

smooth dogfish in its management unit 

when finalizing its Interstate FMP for 

Coastal Sharks, and the Mid-Atlantic 

Fishery Management Council (MAFMC) 

that specifically requested management 

authority to manage the smooth dogfish 

fishery. Also, based on existing data, it 

is apparent that the smooth dogfish 

fishery is substantial, and requires 

sound science-based conservation and 

management to provide for the longterm sustainable yield of the stock. The 

smooth dogfish fishery has significant 

annual landings when compared with 

other shark fisheries and has a large 

directed component. Previous 

experiences with shark fisheries and 

shark biology have indicated that sharks 

in general are vulnerable to stock 

collapse in the face of unrestricted 

fishing. Thus, adding the species to the 

FMU now to begin collecting data is 

appropriate. Additionally, the vast 

majority of the smooth dogfish catch 

occurs with gillnets. Some gillnet 

fisheries in the Atlantic are defined as 

Category I fisheries under the Marine 

Mammal Protection Act (MMPA), 

meaning the annual mortality and 

serious injury of one or more marine 

mammal stocks in a given fishery is 

greater than or equal to 50 percent of the 

Potential Biological Removal (PBR) 

level. While all fisheries need to comply 

with the requirements of the MMPA 

regardless of their management status, it 

is more efficient and predictable to 

ensure the affected fishermen are 

engaged in the process if their fishery is 

consistently managed in accordance 

with uniform conservation and 

management measures developed and 

implemented through an FMP in 

accordance with the procedures in the 

Magnuson-Stevens Act. Lastly, the 

smooth dogfish market could overlap 

with that of spiny dogfish, which is a 

species that is Federally-managed with 

a significant directed fishery. Spiny 

dogfish required restrictive management 

measures in the late 1990s and early 

2000s to deal with domestic overfishing. 

While domestically spiny dogfish stocks 

appear to be healthy, other stocks are 

overfished internationally. Because of 

the possible overlap in markets, NMFS 

is concerned that smooth dogfish 

products can be used as a substitute for 

spiny dogfish products. If there is 

market overlap, then declines in spiny 

dogfish stocks (as have been seen 

internationally) and restrictive 

management measures (including 

domestic management) could push, or 

might have already pushed, effort into 

the smooth dogfish fishery. Until initial 

management measures are in place to 

collect data concerning location, effort, 

and the status of the stock, NMFS will 

not be able to determine whether further 

or different conservation and 

management measures through future 

FMP amendments and/or regulatory 

changes are necessary due to the 

influence of the foregoing and other 

relevant factors. For the foregoing 

reasons, NMFS has determined that the 

smoothhound fishery is in need of 

conservation and management, and that 

the species is suitable for management 

as a highly migratory species by the 

Secretary in accordance with his 

authority over Atlantic HMS set forth in 

Sections 302(a)(3) and 304(g) of the 

Magnuson-Stevens Act. 

Response to Comments 

A number of individuals and groups 

provided comments on the proposed 

rule during the comment period in 

writing or at public hearings. All written 

comments can be found at http:// 

www.regulations.gov. The comments 

received resulted in numerous changes, 

as described below in the Changes from 

the Proposed Rule section. Significant 

comments are summarized below by 

major topic together with NMFS’ 

responses. There are eight major issues: 

SCS commercial quotas, commercial 

gear restrictions, commercial pelagic 

shark effort controls, recreational 

measures for SCS, recreational measures 

for pelagic sharks, smooth dogfish, 

general comments, and economic 

comments. The first major issue, SCS 

commercial quotas, has the following 

sub-issues: science/stock assessment, 

shrimp trawls and working with the 

Regional Fishery Management Councils, 

and quota alternatives. The comments 

are numbered consecutively, starting 

with 1, at the beginning of each major 

issue. 

A. SCS Commercial Quotas 

1. Science/Stock Assessment 

Comment 1: NMFS received 

comments regarding the average weights 

used for blacknose sharks. Commenters 

noted that the blacknose shark stock 

must be healthy, since blacknose sharks 

of various sizes are being landed across 

all fisheries. In addition, the Gulf of 

Mexico Fishery Management Council 

(GMFMC) commented that the average 

size of blacknose shark landed in the 

recreational fishery weighed only 1.5 lb 

dressed weight (dw), which corresponds 

to a fish less than two feet long, and 

therefore it appears that this data is 

incorrect. The recreational catches 

included only landed sharks. However, 

released blacknose sharks make up a 

substantial proportion of the total 

recreational catches, in some years 

exceeding landings. In other stock 

assessments, a release mortality 

percentage is applied to the releases 

reported in Marine Recreational Fishing 

Statistics Survey (MRFSS) to account for 

recreational dead discards. Leaving 

recreational dead discards out may 

result in erroneous assessment results. 

Response: NMFS recognizes that 

blacknose sharks of various sizes are 

caught in the SCS fishery, and that the 

average weight for recreationally-caught 

blacknose sharks, which is the best 

available data from MRFSS, may be 

underestimated. However, only 

recreational landings and discard data 

were used in the stock assessments; 

average weights in the recreational 

fishery were not used in the 2007 SCS 

and blacknose shark assessments. In 

order to estimate recreational landings 

and dead discards for the stock 

assessment, NMFS used data from three 

recreational surveys (MRFSS, the NMFS 

Headboat Survey, and the Texas Parks 

and Wildlife Department Recreational 

Fishing Survey). NMFS also used 

MRFSS to estimate blacknose shark 

average weights, and NMFS realizes that 

an average weight for recreationallycaught blacknose sharks of less than 2 

lb dw reflects a small juvenile shark, but 

this average weight of blacknose sharks 

is the best available data from MRFSS. 

Recent data from the Southeast 

Fisheries Science Center (SEFSC) has 

shown that the average size of blacknose 

sharks caught in gillnets is 18.7 lb dw, 

as opposed to the 14.4 lb dw that was 

used in the Draft Environmental Impact 

Statement (DEIS) analysis. Based on this 

updated average weight, NMFS has 

modified the average weight of 

blacknose sharks across all commercial 

gear types to 6.4 lbs, as opposed to 5.4 

lbs used in the DEIS. Consistent with 40 

CFR 1503.4(2) and (3), NMFS responded 


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to this comment in the DEIS, improved 

its analysis of blacknose mortality rates, 

and developed, identified, and 

evaluated a new A6, which would set 

the SCS quota at 221.6 mt dw and the 

blacknose quota at 19.9 mt dw. The 

preferred alternative in the DEIS was 

A4. 

Comment 2: Several commenters had 

questions on where the research for the 

stock assessments occur, who does the 

assessments and research, what data 

goes into the assessments, and whether 

the assessments considered the Atlantic 

Large Whale Take Reduction Plan 

regulations. 

Response: The 2007 Southeast Data, 

Assessment, and Review (SEDAR) SCS 

stock assessment was organized around 

three workshops. All workshops are 

open to the public to ensure the 

assessment process is transparent. The 

first is a Data Workshop, during which 

fisheries monitoring, life history data, 

catch data and indices of abundance 

from both fishery independent and 

fishery dependent sources are reviewed 

and compiled. The report of the Data 

Workshop provides all sources of data 

and research that was conducted and 

included in the stock assessment. The 

data reviewed at this workshop includes 

fishery dependent data (e.g., fishermen, 

dealer and observer reports), fishery 

independent data (e.g., scientific 

surveys), and scientific data regarding 

the biology of the species. Participants 

of the Data Workshop reviewed over 20 

individual catch indices along with 

other data regarding catches and 

biological information. Current and 

historical regulations such as the 

Atlantic Large Whale Take Reduction 

Plan regulations and the Atlantic HMS 

regulations are summarized for 

consideration by the participants in the 

stock assessment. The scientists realize 

that management can affect fisheries 

monitoring, and data collection and 

work to account for these impacts when 

finalizing the data to be used in the 

assessment models. The explanation of 

the process for conducting the stock 

assessment is provided in Chapter 3 of 

the FEIS. 

Comment 3: Fishermen are not fishing 

for sharks, including blacknose sharks, 

anymore since it is not profitable. NMFS 

could be misinterpreting this decline in 

effort as population declines. Shark 

catches are just incidental catches and 

occur only in the Tortugas. 

Response: NMFS recognizes that 

effort has decreased in the shark 

fisheries in terms of the number of boats 

and in the number of sets, but notes that 

there are several fishermen in the 

Atlantic, GOM and Caribbean who still 

fish for sharks in both directed and 

incidental manners. In order to account 

for this decreased effort, NMFS uses a 

weighted average of effort and landings 

when conducting data analysis. This 

provides a better understanding of the 

catch-per-unit effort of the active vessels 

in the fishery. Furthermore, the SEDAR 

stock assessment process uses fisheryindependent data in the analysis. This 

type of data is generally immune to, and 

helps correct for, changes in fishing 

effort. 

Comment 4: NMFS received several 

comments stating that the SEDAR 13 

2007 SCS stock assessment is not the 

‘‘best available science.’’ Commenters 

noted concerns over certain data issues, 

the use of trawl data before and after 

TEDs were required, modeling 

assumptions, and management choices 

described in the stock assessment. One 

commenter stated that while he has 

advocated closing the shark gillnet 

fishery, he is concerned that NMFS is 

using suspect data to justify what would 

otherwise be a good outcome. Other 

commenters noted that shark stock 

assessments for various species tend to 

move the species assessed from 

overfished to healthy and then from 

healthy to overfished frequently. Many 

commenters felt that NMFS should wait 

for the new stock assessment and 

should not implement new quotas or 

other regulatory changes for blacknose 

sharks based on the 2007 assessment. 

Response: NMFS used the best 

available science and a rigorous SEDAR 

stock assessment process to make the 

determination that blacknose sharks are 

overfished with overfishing occurring. 

The independent review panel 

determined that the data used in the 

SCS stock assessment were considered 

the best available at the time. They also 

determined that appropriate standard 

assessment methods based on general 

production models and on agestructured modeling were used to derive 

management benchmarks given the data 

available. Therefore, NMFS believes that 

the 2007 SCS stock assessment 

represents the best available science and 

is not considering delaying 

implementation of management 

measures until the next stock 

assessment is completed. Under Section 

304(e) of the Magnuson-Stevens Act, as 

implemented by the NS1 Guidelines, if 

a stock is overfished, NMFS is required 

to ‘‘take remedial action by preparing an 

FMP, FMP amendment, or proposed 

regulation * * * to rebuild the stock or 

stock complex to the MSY level within 

an appropriate time frame’’ (50 CFR 

600.310(e)(3)(ii)). 

Additionally, ‘‘in cases where a stock 

or stock complex is overfished, [the] 

action must specify a time period for 

rebuilding the stock or stock complex 

that satisfies the requirements of section 

304(e)(4)(A) of the Magnuson-Stevens 

Act.’’ Therefore, consistent with the 

results of the 2007 SCS stock assessment 

results, the 2006 Consolidated HMS 

FMP, the Magnuson-Stevens Act, and 

the NS1 Guidelines, NMFS is 

implementing final management 

measures to end overfishing and rebuild 

blacknose sharks, while providing an 

opportunity for the sustainable harvest 

of the other sharks in the SCS complex. 

The discussion of the SEDAR stock 

assessment process is included in 

Chapter 3 of the FEIS. NMFS believes 

that the assessment remains the best 

scientific data available at this time and 

the agency is required by National 

Standard 2 to utilize this information. 

Comment 5: The stock assessment 

should not have combined the two 

blacknose shark stocks found in the Gulf 

of Mexico region and the Atlantic coast 

region. The problem arises with the 

differences caused by a lack of 

migration movement between regions 

and the annual breeding cycle of the 

Gulf of Mexico stock coupled with the 

biennial breeding cycle of the Atlantic 

stock of mature female blacknose 

sharks. NMFS scientists should model 

them as two separate stocks and not 

one. Additionally, because of 

differences in life history parameters, 

blacknose sharks in the western North 

Atlantic should be managed separately 

from those in the Gulf of Mexico. 

Response: In the 2007 SCS stock 

assessment, the assessment scientists 

considered the issue and determined 

that blacknose sharks should be 

assessed as one stock. The scientists 

noted that there was conflicting genetic 

data regarding the existence of two 

separate stocks, and the potential 

differences in the reproductive cycle for 

South Atlantic and Gulf of Mexico 

populations. As a result, the assessment 

used an average reproductive cycle of 

1.5 years (the average between 

reproductive cycles of one year in the 

Gulf of Mexico and two years in the 

South Atlantic region). Also, 

reproductive scenarios were conducted 

during the stock assessment to 

determine the effect of different 

reproductive cycles on the stock status. 

Under both reproductive scenarios, the 

overall stock status of blacknose sharks 

did not change. Thus, the reviewers and 

assessment scientists agreed that the 

base case scenario of a 1.5-year 

reproductive cycle was appropriate for 

the assessment. Because it was 

determined that blacknose sharks are 

one stock, NMFS plans on 

implementing regulations to rebuild the 

blacknose shark stock for the South 


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Atlantic and Gulf of Mexico together. 

The discussion of the SEDAR stock 

assessment process is included in 

Chapter 3 of the FEIS and adequately 

addressed this issue. NMFS believes 

that the assessment remains the best 

scientific data available at this time and 

the agency is required by National 

Standard 2 to utilize this information. 

NMFS has determined that the existing 

analysis is adequate. As such, changes 

were not made in the FEIS or the final 

rule in response to this comment. 

Comment 6: Commenters had 

questions on why the SCS stock 

assessment only included data up to 

2005 and on the catch rate data from the 

trawl survey over the last 30 years. 

Response: The data used in the 2007 

SCS stock assessment includes data up 

to 2005, which was the most current 

year of data available at the time the 

SEDAR Data Workshop was held in 

February of 2007. Full descriptions of 

the data used in the 2007 blacknose 

stock assessment to estimate blacknose 

bycatch in the GOM are in SEDAR13– 

DW–31 and SEDAR13–DW–32. Both 

papers are available on the SEDAR Web 

site at http://www.sefsc.noaa.gov/sedar/ 

Sedar_Documents.jsp?WorkshopNum=

13&FolderType=Data. As outlined in 

the Final SEDAR 13 SCS Report, the 

blacknose shark bycatch in the South 

Atlantic was calculated as a proportion 

of the Gulf of Mexico bycatch. As for the 

data from the Southeast Area 

Monitoring and Assessment Program 

(SEAMAP), six ‘‘time series’’ were used 

to estimate blacknose shark bycatch in 

the shrimp trawl fisheries. These were 

the fall time series Fall Groundfish (FG) 

1972–1986, First Fall (FF) 1987, Fall 

SEAMAP (FS) 1988–2006; and the 

summer time series Summer SEAMAP 

(SS) 1987–2006, Early SEAMAP (ES) 

1982–1986, and Texas Closure (TC) 

1981. The SEAMAP surveys did not 

utilize TEDs. However, shrimp trawl 

observer data from 1972–2005 also were 

used to estimate blacknose bycatch in 

the shrimp trawl fisheries and shrimp 

trawl effort data for the Gulf of Mexico 

and the South Atlantic from 1972–2005 

were also used in the SEDAR 13 

assessment. The discussion of the 

SEDAR stock assessment process is 

included in Chapter 3 of the FEIS. It 

discloses the data sources that existed at 

the time of the stock assessment. NMFS 

believes that the assessment and the 

data upon which it relied remains the 

best scientific data available at this time. 

The agency is required by National 

Standard 2 to utilize this information. 

NMFS has determined that the existing 

data and analysis are adequate. 

Therefore, no changes were made in the 

FEIS or final rule in response to this 

comment. 

Comment 7: Will the next blacknose 

shark assessment be a benchmark or 

update? The protocol of the shrimp 

observer program seems to be reporting 

just shark groups, not species specific 

reporting. NMFS should follow up on 

this through the observer program. 

Response: Since the 2007 stock 

assessment, NMFS and industry 

scientists have been developing 

different models for analyzing the 

shrimp trawl data. Because the new 

models, which currently have not been 

peer reviewed, would be a change in 

methodology from the 2007 stock 

assessment, the next blacknose shark 

assessment will be a benchmark 

assessment. The Data Workshop for this 

assessment, which will also assess 

sandbar and dusky sharks, will take 

place in summer 2010. NMFS is 

currently working with the shrimp 

observer program to increase species 

specific shark data reporting. 

Comment 8: NMFS received 

comments regarding the survival of 

blacknose sharks that stated that 

blacknose sharks are alive at the boat 

and will survive if released. NMFS also 

received comments that disputed the 

reduction of blacknose catches. 

Response: A review of the data from 

the 2005–2008 Shark Gillnet Observer 

Database, which reported the number of 

sharks caught in the gillnet fishery 

during observed trips, detailed the 

disposition of the sharks caught in 

gillnets. From this data, the number of 

sharks that were landed and kept, 

landed alive and released, and landed 

dead and discarded was determined. 

Based on this data, NMFS has changed 

the mortality rate for discards to 80 

percent instead of 100 percent that was 

used in the DEIS. Although catch rates 

may remain unchanged, a stock may 

show signs of stress through changes in 

average size towards smaller 

individuals, or to increasingly larger 

numbers of younger individuals in the 

stock. While there has not been a 

reduction in blacknose shark 

commercial landings, based on the most 

current stock assessment, the blacknose 

shark stock has been determined to be 

overfished, with overfishing occurring. 

For this reason, NMFS has decided to 

implement management measures to 

rebuild this overfished stock and to end 

overfishing. Based on this comment, 

NMFS modified the FEIS by adjusting 

the mortality rates based on observer 

coverage and made conforming changes 

in the Final Amendment 3 and this final 

rule. 

2. Shrimp Trawls and Working With the 

Regional Fishery Management Councils 

Comment 9: NMFS received many 

comments regarding the blacknose shark 

mortality related to the Gulf of Mexico 

shrimp trawl fisheries. The State of 

Louisiana agrees that the majority of the 

reported blacknose shark mortality 

comes as bycatch from the Gulf of 

Mexico shrimp trawl fishery, but notes 

that the effort in this fishery has been 

reduced from 2005 due to hurricanes 

Katrina and Rita and fuel prices. The 

GMFMC and others also commented 

that the Gulf of Mexico shrimp trawl 

bycatch portion of blacknose shark 

mortality (45 percent) seems high. 

Specifically, these commenters note that 

shrimp fishing effort in 2005 in areas 

where red snapper are abundant was 

reduced by 50 to 60 percent from 2001– 

2003 periods and was reduced by 

approximately 65 percent in 2006. It 

was further reduced in 2007 and 2008 

by approximately 75 percent. The 

number of vessels participating in the 

offshore shrimp fishery is expected to 

continue declining until at least 2012, 

and has been further reduced by the 

impacts of hurricanes Katrina and Rita. 

With time/area closures, the shrimp 

trawl effort is unlikely to rebuild to its 

prior historical levels. As a result, 

basing blacknose shark mortality rates 

by gear type using the years 1999–2005 

may produce anomalous results that are 

not representative of long term trends. 

Those estimates should be recalculated 

using more recent years or a longer time 

series of years. All of these comments 

stated that NMFS should update their 

mortality figures utilizing current 

offshore Gulf of Mexico shrimp trawl 

effort data. 

Response: NMFS would like to thank 

the State of Louisiana and the GMFMC 

for their comments. NMFS is working 

with the GMFMC, and agrees that 

blacknose shark mortalities have 

dropped significantly due to decreased 

effort in the shrimp trawl fishery in the 

Gulf of Mexico. NMFS also recognizes 

that the impacts from hurricanes, and 

other events, in recent years may have 

affected effort or landings data. Effort in 

the Gulf of Mexico shrimp fishery has 

decreased 64 percent from the average 

effort across the entire Gulf of Mexico in 

1999–2005 compared to effort in 2008 

(James Nance, NMFS SEFSC pers. 

comm.). Although an analysis of the 

spatial/temporal distribution of this 

reduction relative to the distribution of 

blacknose shark bycatch has not been 

conducted, a starting assumption could 

be that this equates to a commensurate 

64 percent reduction in bycatch. 


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Modeling efforts are ongoing that 

incorporate a TED effect in the bycatch 

estimation model. Preliminary analyses 

utilizing the new modeling technique 

indicate that bycatch may have been 

reduced by approximately 50 percent in 

1999–2005. When bycatch reductions 

from the effort reduction of 64 percent 

are combined with an approximately 50- 

percent bycatch reduction anticipated 

from the TED effect, a preliminary 

estimate of the overall reduction is 

approximately 82 percent from 1999– 

2005 levels. Full results will be 

provided once the study is complete. 

The uncertainty is not fully defined in 

these preliminary bycatch estimates, 

and there may be spatio-temporal 

differences in bycatch trends. More data 

and further analyses are required to 

determine any uncertainty in the 

estimates and to re-evaluate the status of 

the blacknose shark stock. The next 

assessment is scheduled for 2010, and 

NMFS will re-visit shrimp bycatch and 

shrimp trawl effort at that time. Since 

the modeling data, analyses and 

conclusions are preliminary and have 

not been peer reviewed, they were not 

available for use in the FEIS or in this 

final rule. NMFS believes that the 2007 

SCS assessment and the data upon 

which it relied with respect to bycatch 

in the shrimp trawl fisheries remains 

the best scientific data available at this 

time. The agency is required by National 

Standard 2 to utilize this information. 

NMFS has determined that the existing 

data and analysis are adequate. 

Therefore, no changes were made in the 

FEIS or this final rule in response to this 

comment. 

Comment 10: NMFS received 

comments regarding the Georgia 

Bulldog trawl video and the ability of 

blacknose sharks to go through TEDs. 

Several commenters expressed 

skepticism that blacknose sharks could 

fit through the four inch bar spacing of 

a TED. Other commenters asked about 

the species of shark in the video and 

whether they went through the TED. 

Response: The SEFSC’s video footage 

of TEDs in shrimp trawls shows sharks 

and protected resources (e.g., sea turtles) 

being excluded from shrimp trawls 

using TEDs with less than 4-inch bar 

spacing. The video footage was taken 

from a shrimp trawler, the R/V Georgia 

Bulldog, off the coast of Georgia, within 

10 miles of shore, in water depths less 

than 40 feet. The footage shows that 

some small sharks (blacknose, 

bonnethead, and Atlantic sharpnose), as 

well as various other finfish, can pass 

through the TEDs and into the codend 

of the trawl; NMFS has not conducted 

any analysis on the bycatch at this time 

(e.g., bycatch was not identified to 

species, length measurements were not 

taken). The video is not appropriate for 

detailed analysis of the TED impact on 

catch and bycatch, but rather serves as 

a starting point because it shows that 

sharks do make it through this bycatch 

reduction device technology. The 

discussion and analysis of SCS bycatch 

in the shrimp trawl fisheries used in the 

2007 SCS stock assessment remains the 

best scientific data available at this time. 

The agency is required by National 

Standard 2 to utilize this information. 

NMFS has determined that the existing 

data and analysis are adequate. 

Therefore, no changes were made in the 

FEIS or this final rule in response to this 

comment. 

Comment 11: NMFS received 

numerous comments regarding the 

bycatch of blacknose sharks in shrimp 

trawl fisheries. Commenters suggested 

that NMFS should study potential ways 

to reduce bycatch of blacknose sharks 

and other species in trawl fisheries, 

including gear modifications, gear 

restrictions, or time-area closures and 

implement measures to reduce this 

bycatch. In addition, NMFS received 

comments that NMFS should work 

together with Regional Fishery 

Management Councils to reduce the 

bycatch of blacknose sharks in the 

shrimp trawl fisheries and to ensure 

ACLs and AMs are set for fisheries that 

catch blacknose sharks in order to limit 

the significant mortality in the shrimp 

fisheries. 

Response: NMFS is working with the 

Gulf of Mexico and South Atlantic 

Fishery Management Councils to 

establish bycatch reduction methods, as 

appropriate, to reduce blacknose shark 

mortality in the shrimp trawl fisheries. 

In addition, NMFS SEFSC has been 

working with industry scientists to reevaluate the shrimp bycatch models 

used in the 2007 SCS stock assessments. 

In particular, they have been evaluating 

the effect of TEDs on SCS bycatch in 

shrimp trawls. NMFS continues to 

monitor and evaluate bycatch in HMS 

fisheries through the pelagic longline 

(PLL), bottom longline (BLL), and gillnet 

observer programs, and evaluation of 

management measures such as closed 

area trip limits, and gear modifications. 

Because the Gulf of Mexico and South 

Atlantic Fishery Management Councils 

manage the shrimp trawl fisheries, 

NMFS is only implementing measures 

in this amendment to reduce the 

landings and discards in Atlantic shark 

fisheries. Regulatory changes to the 

shrimp trawl fisheries in the South 

Atlantic and Gulf of Mexico regions 

would be done through the Council 

process in those regions. This 

amendment includes a mechanism to 

specify ACLs for stock complexes, 

including the SCS complex, and certain 

specific shark species as well as identify 

AMs, consistent with the MagnusonStevens Act requirements to establish a 

mechanism for specifying ACLs and 

AMs at a level that will prevent 

overfishing. The regulations necessary 

to adjust ACLs as needed and to apply 

AMs are currently in place. The DEIS 

explained NMFS’ approach to reducing 

bycatch by working with the Regional 

Fisheries Management Councils 

responsible for those fisheries. In 

addition, NMFS has committed to 

ongoing monitoring and future 

evaluation of this issue. That discussion 

is included in Chapter 1 of the FEIS. 

Comment 12: Some commenters 

noted that the shrimp industry has 

mandated TEDs and other bycatch 

reduction devices, and ask if there are 

other shrimp trawl bycatch reduction 

measures that can be implemented. 

Response: NMFS agrees that the 

mandating of TEDs and other bycatch 

reduction devices have aided in the 

reduction of blacknose shark catches 

and other protected resources. 

Currently, NMFS is working with the 

GMFMC, South Atlantic Fishermen 

Management Council (SAFMC), and the 

shrimp industry to look at other ways to 

decrease the shark bycatch in the 

shrimp fishery. For the reasons stated in 

response to comment 11, NMFS did 

make changes in the FEIS based on this 

comment. 

3. Quota Alternatives 

Comment 13: NMFS should 

implement alternative A1, which calls 

for no action to the SCS commercial 

quota. This alternative is appropriate 

given the concerns on the science for 

blacknose and the range of alternatives. 

The Atlantic Large Whale Take 

Reduction Plan (ALWTRP) regulations 

eliminate gillnet fishing for 5 months a 

year (November to April), which should 

be positive for blacknose sharks. When 

the fishery opens in April and May, the 

blacknose sharks are within State 

waters, therefore, NMFS should not 

change anything and stay with the 5 

month ALWTRP closure. 

Response: The results of the 2007 SCS 

stock assessment determined that, 

despite the ALWTRP, blacknose sharks 

are overfished and overfishing is 

occurring. The assessment 

recommended a blacknose shark 

specific TAC and a corresponding 

rebuilding timeframe. One objective of 

this rulemaking is to ensure that fishing 

mortality levels for blacknose sharks are 

maintained at or below levels that 

would result in a 70 percent probability 

of rebuilding in the timeframe 


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recommended by the assessment. Under 

the Magnuson-Stevens Act, as 

implemented by the NS1 Guidelines, if 

a stock is overfished, NMFS, in addition 

to taking action to propose and 

implement measures to end overfishing, 

is required to ‘‘take remedial action by 

preparing an FMP, FMP amendment, or 

proposed regulation * * * to rebuild 

the stock or stock complex to the MSY 

level within an appropriate time frame’’ 

(50 CFR 600.310(e)(3)(ii)). NMFS chose 

not to select the status quo alternative 

as the preferred alternative because it 

does not end overfishing or implement 

a rebuilding plan for overfished stocks 

as required by the Magnuson-Stevens 

Act and NS1 Guidelines. Based on 

further analysis of new data and public 

comment, NMFS selected an SCS quota 

alternative in the FEIS that was different 

from the preferred SCS quota alternative 

in the DEIS. Specifically, NMFS 

selected alternative A6 in the FEIS 

which has a non-blacknose SCS quota of 

221.6 mt dw and a blacknose shark 

quota of 19.9 mt dw because it 

implements quotas necessary to rebuild 

and end overfishing of blacknose sharks. 

The final action also allows the gillnet 

fishery to continue, thus mitigating 

some of the economic impacts that are 

expected and necessary in order to 

reduce fishing mortality as prescribed 

by the recent stock assessment. Thus, 

the final SCS quota and commercial gear 

alternatives strike a balance between 

positive ecological impacts that must be 

achieved to rebuild and end overfishing 

of blacknose sharks shark stocks while 

minimizing the negative economic 

impacts that would occur as a result of 

these measures. 

Comment 14: NMFS received a 

number of comments indicating that 

gillnet fishermen can adapt their fishing 

techniques and gear to avoid catching 

blacknose sharks. Specific comments 

included: Did NMFS consider that 

fishermen can adapt and select on 

certain species?; gillnet fishermen can 

adapt to avoid catching blacknose 

sharks similar to how they reduced 

turtle and marine mammal bycatch; 

strikenet gear is a clean gear and can be 

modified to avoid blacknose sharks; it is 

possible to design gillnet gear to 

eliminate blacknose shark catches; and 

NMFS should set aside Amendment 3 or 

go with status quo until more gear 

research can be conducted. 

Response: Due to this comment, 

NMFS reviewed the 2005–2008 Shark 

Gillnet Observer Data. Based on this 

analysis, NMFS agrees that fishermen 

may be able to adapt and specifically 

target some species while avoiding 

others. The percentage of blacknose 

sharks in the catch from gillnet trips 

that were targeting other species were: 

2.6 Percent from 5 trips that targeted 

blacktip sharks, 1.4 percent from 17 

trips that targeted Atlantic sharpnose 

sharks, 8.3 percent from 6 trips that 

targeted bonnethead sharks, and 3.9 

percent from 118 unspecified shark 

trips. NMFS used this information to reanalyze the SCS quota and commercial 

gear alternatives. Based on this analysis 

and public comment, NMFS selected 

alternative A6, which is a new 

alternative and would have a nonblacknose SCS quota of 221.6 mt dw 

and a blacknose shark quota of 19.9 mt 

dw. In addition, NMFS chose not to 

prohibit gillnet gear as an authorized 

gear type and selected the commercial 

gear alternative to B1, the No Action 

alternative. If in subsequent analysis the 

data shows that shark fishermen have 

been able to avoid catching blacknose 

sharks, NMFS will re-evaluate the 

landings data, and increase the quota for 

non-blacknose SCS, blacknose sharks, or 

both. However, if a re-evaluation of the 

data shows that fishermen have not 

been able to minimize blacknose shark 

mortalities, then NMFS reserves the 

right to decrease either, or both, quotas. 

In response to this comment, NMFS 

modified the FEIS to include the 

identification and selection of preferred 

alternatives that would establish 

blacknose and non-blacknose SCS 

quotas and continue to allow the use of 

gillnets as authorized gear for harvesting 

all Atlantic sharks. The changes to the 

final rule are discussed in more detail 

below. 

Comment 15: NMFS received 

numerous comments on the proposed 

non-blacknose SCS quota. Several 

commenters were concerned that the 

non-blacknose SCS quota was too low 

particularly since these species stocks 

are healthy and are a viable alternative 

for fishermen. The low quota could 

result in high regulatory discards. The 

State of North Carolina noted that if 

NMFS reduced the non-blacknose SCS 

quota, North Carolina fishermen will be 

disproportionately impacted by this 

regulation by removing fair and 

equitable distribution of SCS quota and 

implementing measures contrary to 

measures in State waters. The State of 

South Carolina noted that the proposed 

quota of 56.9 mt dw for small coastal 

sharks will result in a 76 percent 

reduction in the landings of finetooth, 

Atlantic sharpnose and bonnethead 

sharks in the shark fishery. As such, this 

reduction in the quota for these three 

species would seem unwarranted at this 

time. Additionally, this proposed 

reduction will have significant 

repercussions among South Carolina’s 

permitted commercial fisherman who 

landed 10 mt dw of these three species 

in 2008 or nearly 17 percent of the 

proposed quota for the Atlantic, Gulf of 

Mexico and Caribbean fisheries, 

combined. In addition, the small quota 

is likely to be reached and the fishery 

closed before South Carolina fishermen 

have an opportunity to land their 

traditional catch. For these reasons, 

NMFS should implement alternative A2 

in combination with the gillnet 

prohibition, alternative B3. 

Response: NMFS recognizes that the 

status of non-blacknose SCS is not 

overfished and not experiencing 

overfishing. In the DEIS, the preferred 

alternative, A4, would have set the 

commercial quota for non-blacknose 

SCS sharks at 56.9 mt dw, and the 

blacknose shark quota at 14.9 mt dw. 

Due to recent data updates, analysis, 

and public comments, NMFS has 

changed the preferred alternative from 

A4 in the DEIS to A6 in the FEIS, which 

would set the commercial quota for nonblacknose SCS at 221.6 mt dw and the 

blacknose shark quota at 19.9 mt dw. 

The final non-blacknose SCS quota sets 

the commercial quota equal to the 

average non-blacknose sharks SCS 

landings from 2004 through 2008 and 

therefore would not have economic 

impacts beyond the status quo. By 

looking at the recent Gillnet Observer 

Data from 2005–2008, NMFS agrees that 

it appears that commercial shark 

fishermen can target non-blacknose 

sharks and avoid catching blacknose 

sharks. If subsequent reviews of the 

management measures implemented 

under alternative A6 indicate that 

commercial shark fishermen are able to 

minimize their catch of blacknose 

sharks, NMFS could increase the nonblacknose SCS quota to allow for greater 

access to these species. Also, any 

underharvest of the non-blacknose SCS 

quota from the previous year could be 

added to the quota the following year, 

because all of the shark species in this 

complex (Atlantic sharpnose, finetooth 

and bonnethead) are not overfished and 

overfishing is not occurring. NMFS 

recognizes that there may be a high 

mortality rate for the blacknose sharks 

released from the various gears used in 

the SCS fishery. NMFS is attempting to 

limit the discard mortalities of 

blacknose sharks in the SCS fishery 

associated with the proposed SCS quota, 

by allowing the commercial shark 

fishermen to retain the number of sharks 

equal to the average landings of 

blacknose sharks from all gears based on 

the 2004–2008 Coastal Fisheries 

Logbook and Shark Gillnet Observer 

Data. In response to this comment, 


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NMFS made the foregoing changes to 

the FEIS and this final rule including 

the selection of an alternative to 

establish a non-blacknose SCS quota at 

221.6 mt dw and allow continued use of 

gillnet as authorized gear for harvesting 

SCS. Changes to the final rule are 

discussed in more detail below. 

Comment 16: NMFS received several 

comments specific to the quota levels 

for blacknose sharks. Comments suggest 

that NMFS should prohibit the retention 

of blacknose sharks by placing the 

species on the prohibited list. Other 

commenters suggested that the 

blacknose shark quota needs to be high 

enough to allow for the retention of 

incidental catch. The State of Georgia 

supports the quotas in alternative A4 

with gillnet closure in alternative B3 as 

it will significantly reduce the impacts 

of regulatory discards of blacknose 

sharks, which would occur if the quota 

for blacknose sharks is reached before 

the non-blacknose SCS quota. 

Response: NMFS agrees that the 

blacknose shark quota needs to be large 

enough for fishermen to keep blacknose 

sharks that are caught incidentally. As 

detailed in Chapter 4 and Appendix A, 

NMFS has changed the preferred 

alternative from A4 in the DEIS to A6 

in the FEIS. Under alternative A6, the 

non-blacknose SCS (221.6 mt dw) and 

blacknose shark (19.9 mt dw) quotas 

would allow for incidental catch of 

blacknose sharks. Also, under 

alternative A6, both the blacknose and 

the non-blacknose fisheries would close 

when either the quota was reached or 

the catch was projected to reach 80 

percent of the quota. This offers an 

incentive to avoid blacknose sharks and 

target non-blacknose SCS to ensure that 

the non-blacknose SCS fishery does not 

close with quota still available. NMFS 

considered closing the entire SCS 

fishery (alternative A5) however, the 

stock assessment did not warrant such 

action. Under the rebuilding plan, a 

limited number of blacknose sharks can 

be retained while still meeting 

rebuilding goals. Furthermore, once a 

species is placed on the prohibited list, 

fishery-dependent data on the species 

will cease to be reported and cannot be 

used in future stock assessments or 

management measure determinations. In 

response to this comment, NMFS made 

the foregoing changes to the FEIS and 

this final rule including the selection of 

an alternative to establish a blacknose 

SCS quota at 19.9 mt dw and allow 

continued use of gillnet as authorized 

gear for harvesting SCS. The DEIS 

already included an alternative to close 

the SCS fishery that would have 

prohibited the retention of blacknose 

sharks. Therefore, an additional 

alternative to list blacknose as a 

prohibited species was not added to the 

FEIS. Changes to the final rule as a 

result of this comment are discussed in 

more detail below. 

Comment 17: NMFS received several 

comments regarding the overlap of the 

SCS gillnet fishery with other gillnet 

fisheries in the southeast region. 

Comments included: The NMFS 

proposal will force effort into other 

fisheries (e.g., kingfish fishery) and this 

will fracture those other fisheries; 

NMFS needs to know the number of 

blacknose shark catches in the mackerel 

fishery and how that relates to the 22- 

percent mortality of blacknose shark by 

gillnets; if NMFS is taking the bulk of 

effort away, why not let mackerel 

fishermen keep blacknose sharks; NMFS 

should eliminate blacknose sharks 

landings and allow mackerel fishermen 

to land other SCS; and NMFS should 

collect data on discards in the mackerel 

fishery. 

Response: NMFS recognizes that 

fishermen will adapt in different ways 

to new regulations placed on a fishery, 

which may include increasing their 

effort in other fisheries. NMFS plans to 

continue to collect the best available 

data from several sources including data 

on landings, discards, and bycatch. As 

this new data becomes available, 

regulation changes could be made that 

would provide fishermen access to 

resources that are ecologically and 

economically viable. Based on the most 

recent data, which indicates that gillnet 

fishermen may be able to avoid certain 

species, NMFS changed its preferred 

alternative from B3 in the DEIS, which 

would have eliminated gillnet gear as an 

authorized gear from South Carolina 

south, to B1 in the FEIS, the No Action 

alternative, which retains gillnet as an 

authorized gear in the Atlantic Ocean, 

Gulf of Mexico, and Caribbean Sea. 

Also, under the selected alternative, A6, 

incidental catches of blacknose sharks 

will continue to be allowed. In response 

to this comment, NMFS made changes 

to the FEIS including the development 

of a preferred alternative that establishes 

a blacknose quota at 19.9 mt dw and a 

non-blacknose SCS quota at 221.6 mt 

dw. The DEIS already considered an 

alternative to close the entire SCS 

fishery which would essentially 

prohibit retention of blacknose. 

Therefore, an additional alternative to 

list blacknose as a prohibited species 

was not added to the FEIS. The 

discussion of displacing effort from the 

shark fishery into other gillnet fisheries 

was included in the FEIS. NMFS made 

changes in preferred alternative from 

the DEIS to the FEIS based on this and 

similar comments and made conforming 

changes to this final rule. The changes 

to the final rule are discussed below. 

Comment 18: NMFS needs to move 

blacktip sharks to the SCS quota and 

increase the quota for all SCS. 

Response: NMFS is moving towards 

species-specific management, including 

species-specific quota. However, for 

some species NMFS has only limited 

data, which requires management to be 

based on species within a complex of 

species. The 2007 SCS stock assessment 

assessed the SCS complex as a whole as 

well as each species individually, and 

recommended using species-specific 

results rather than the aggregated SCS 

complex results. The assessment 

recommended a blacknose sharkspecific TAC and a corresponding 

rebuilding timeframe. Therefore, based 

on these results, NMFS has removed 

blacknose sharks from the SCS quota 

and set a separate commercial quota for 

this species. A species-specific quota 

enables NMFS to closely monitor 

blacknose shark landings and fishing 

effort according to the rebuilding plan. 

Blacktip sharks are currently managed 

in the non-sandbar LCS complex 

implemented in Amendment 2 to the 

Consolidated HMS FMP. Blacktip 

sharks are more commonly caught with 

gear targeting LCS (i.e., BLL gear) rather 

than gear used to target SCS (i.e., gillnet 

gear). In addition, the blacktip shark 

stock assessment recommended that 

blacktip shark landings should not 

change or increase from historical catch 

levels. Placing blacktip sharks within 

the non-blacknose SCS quota could 

drastically reduce the blacktip shark 

regional quota since the non-blacknose 

SCS shark quota is being reduced in the 

preferred alternative from 454 mt dw 

(status quo) to 221.6 mt dw (alternative 

A6 in the FEIS). Therefore, at this time, 

NMFS is not placing blacktip sharks 

within the SCS complex. NMFS has 

determined that the comment proposes 

an action that does not meet the purpose 

and need set forth in the DEIS and FEIS 

and therefore did not include it as an 

additional alternative for evaluation in 

the FEIS. 

Comment 19: NMFS stated that they 

want to help the U.S. fleet catch the 

entire tuna and swordfish quotas, so 

why is NMFS against SCS fisherman 

landing the SCS quota as appears to be 

the case in preferred alternative A4? 

Response: In the DEIS, the preferred 

alternative A4, would have set the nonblacknose quota at 56.9 mt dw and the 

blacknose shark species-specific quota 

at 14.9 mt dw. Recent data, and the 

analysis of that data, has led NMFS to 

change the preferred alternative from A4 

in the DEIS to A6 in the FEIS. With 

alternative A6, the preferred alternative 


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in the FEIS, selected, the non-blacknose 

SCS quota will be set at 221.6 mt dw, 

which is the average landings of nonblacknose SCS from 2004 through 2008. 

The blacknose shark species-specific 

quota will be set at 19.9 mt dw. These 

regulations are being implemented 

because the status of the blacknose 

shark stock has been determined to be 

overfished, with overfishing occurring. 

Also, any underharvest of the nonblacknose SCS quota could be added to 

the following year’s fishing quota, since 

the stock status of finetooth, Atlantic 

sharpnose, and bonnethead sharks have 

all been determined to be healthy. Also, 

under alternative A6, both the blacknose 

and the non-blacknose fisheries would 

close when either the quota was reached 

or the catch was projected to reach 80 

percent of the quota. This offers an 

incentive to avoid blacknose sharks and 

target non-blacknose SCS to ensure that 

the non-blacknose SCS fishery does not 

close with quota still available. These 

measures maximize the opportunity to 

harvest the healthy non-blacknose SCS 

while rebuilding and preventing 

overfishing on the blacknose shark 

stock. This comment did not target any 

specific section or issue analyzed in the 

DEIS and a specific change in the FEIS 

was not made. As mentioned, however, 

the preferred alternative for nonblacknose SCS quota in the DEIS has 

been adjusted in the preferred 

alternative in the FEIS to address this 

general concern. Conforming changes 

were made in this final rule. These 

changes are discussed below. 

Comment 20: NMFS should save the 

SCS fishery. NMFS took the 4,000 lb 

LCS trip limit away and are now taking 

away blacknose sharks. Are there any 

proposals for buyouts for SCS 

fishermen? 

Response: Currently, there are no 

proposals to buyout SCS fishermen. 

Buyouts can occur via one of the three 

mechanisms, including: Through an 

industry fee, via appropriations from the 

United States Congress, and/or through 

funds provided from any State or other 

public sources or private or non-profit 

organizations. A buyout plan is not 

proposed in this amendment because 

the Agency is unable to implement a 

buyout as a management option. 

Buyouts must be initiated via one of the 

aforementioned mechanisms. 

Comment 21: We believe the 

reductions in the commercial quota and 

the elimination of the gillnet gear will 

have significant, positive effects. Based 

on estimates taken before 2007, your 

analyses determined that this fishery 

was responsible for 45 percent of the 

mortality on blacknose sharks. The Gulf 

of Mexico shrimp effort was reduced by 

74 percent from the average effort of 

2001–2003. Because of this action, the 

historic 46 percent take by the trawl 

fishery would have already been 

reduced to about 12 percent of the total 

take. This reduction should, in 

combination with reductions from quota 

and gear alternatives, drive the 

estimates of total reductions in take by 

numbers of blacknose shark to 

something in excess of 80 percent, a 

value well above the target of 78 

percent. 

Response: NMFS is working with the 

GMFMC, and agrees that blacknose 

shark mortalities in the shrimp trawl 

fishery have dropped significantly due 

to decreased effort in the shrimp trawl 

fishery in the Gulf of Mexico. Based on 

2005–2008 Shark Gillnet Observer Data, 

NMFS believes that gillnet fishermen 

may be able to effectively target other 

SCS species while minimizing the 

mortality of blacknose sharks and 

protected species. Because of this 

analysis, NMFS has changed their 

preferred alternative from B3 in the 

DEIS, which would have eliminated 

gillnet gear from South Carolina south, 

to B1 in the FEIS, the No Action 

alternative, which would retain gillnets 

as an authorized commercial gear type 

for sharks. Based on this same data, and 

because of reductions in blacknose 

shark mortalities in the shrimp trawl 

fishery, NMFS has also changed the 

preferred quota alternative from A4 in 

the DEIS to A6 in the FEIS, which 

would create a non-blacknose SCS quota 

of 221.6 mt dw and a blacknose shark 

quota of 19.9 mt dw. Thus, due to 

updated data, analyses, and public 

comment, NMFS modified the FEIS 

quota and gear alternatives and made 

conforming changes to the final 

Amendment 3 and this final rule. The 

changes are discussed below. 

Comment 22: In the Gulf of Mexico, 

it might be possible to reduce juvenile 

mortality of blacknose sharks by 

adopting for shark bottom longlines, on 

a seasonal basis, the existing reef fish 

longline boundary (20 fathoms east of 

Cape San Blas, Florida, 50 fathoms west 

of Cape San Blas). If this eliminates too 

much of the traditional shark fishing 

grounds to be acceptable, than perhaps 

the ‘‘stressed area’’ boundary, which 

varies from 10 to 30 fathoms, could be 

considered. 

Response: NMFS considered closing 

waters inshore of 20 fathoms in the Gulf 

of Mexico to shark bottom longline gear 

as a way to reduce fishing pressure on 

neonate and juvenile blacknose sharks. 

The majority of the recorded 

interactions with neonate and juvenile 

blacknose sharks occur in waters 

inshore of 20 fathoms. Therefore, by 

closing waters inshore of 20 fathoms, 

NMFS would relieve fishing pressure on 

neonate and juvenile blacknose sharks. 

However, closing waters inshore of 20 

fathoms could have a large, negative 

socioeconomic impact on the shark BLL 

fishery in the Gulf of Mexico, as the 

majority of BLL sharks sets observed 

from 1994–2007 occurred inshore of 20 

fathoms. Given these potentially large, 

social and economic negative impacts, 

and the ability to rebuild blacknose 

sharks through other alternatives, NMFS 

did not further analyze this alternative 

in the FEIS. Similarly, NMFS 

considered closing the waters inshore of 

50 fathoms in the Gulf of Mexico to 

shark BLL fishing, however, because 

this closure would cover more area and 

have larger socioeconomic impacts than 

a 20 fathom line closure, this alternative 

was not further analyzed in the FEIS. 

B. Commercial Gear Restrictions 

Comment 1: NMFS received 

numerous comments supporting the 

proposed alternative to ban gillnets in 

the shark fishery from South Carolina 

south (alternative B3). The SAFMC and 

MAFMC both expressed support for the 

proposal to ban shark gillnet gear. The 

State of Georgia supports banning 

gillnet and states that removal of shark 

gillnet gear is long overdue to reduce 

incidental take of sea turtles and marine 

mammals. Other commenters stated that 

banning gillnet gear would protect 

blacknose sharks, and reduce bycatch 

and protected resource interactions. 

Response: NMFS would like to thank 

the SAFMC, MAFMC, and the State of 

Georgia for submitting comments in 

support of alternative B3. Based on the 

2005–2008 Shark Gillnet Observer 

Program data, and comments from 

fishermen, NMFS believes that gillnet 

fishermen may be able to target other 

SCS species and minimize the mortality 

of blacknose sharks. For this reason, 

NMFS believes that banning gillnets as 

an authorized gear type is unwarranted 

at this time. NMFS would prefer to 

allow gillnet fishermen the opportunity 

to prove that they can target specific 

species, and avoid others. Therefore, 

NMFS changed its preferred alternative 

from B3 in the DEIS, which would have 

banned gillnets from South Carolina 

south, to B1 in the FEIS, the No Action 

alternative, which would retain all 

currently authorized gears in the shark 

fishery. The current regulations for 

gillnet fishermen, which include twohour net checks and keeping nets 

attached to the boat, should continue to 

help reduce the incidental bycatch of 

other species. The bycatch and discards 

of blacknose sharks would be reduced 

by the implementation of a smaller nonVerDate Mar<15>2010 15:46 May 28, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\01JNR2.SGM 01JNR2

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blacknose SCS and blacknose shark 

quota. The gillnet fishery in the 

southeast Atlantic Ocean is monitored 

by vessel monitoring systems (VMS) and 

has sufficient observer coverage. The 

VMS and observer coverage has helped 

protect endangered species like sea 

turtles and right whales. NMFS believes 

that allowing gillnet gear as an 

authorized gear for sharks is consistent 

with the 2008 Biological Opinion (BiOp) 

for the Atlantic Shark fishery. The 2008 

BiOp was completed for Amendment 2 

to the Consolidated HMS FMP which 

did not prohibit the use of gillnet gear. 

Therefore the BiOp was based on the 

continued use of gillnet gear in the 

Atlantic Shark fishery and concluded 

that the Atlantic shark fishery is not 

likely to jeopardize the continued 

existence of endangered green, 

leatherback, and Kemp’s ridley sea 

turtles; the endangered smalltooth 

sawfish; or the threatened loggerhead 

sea turtle. Furthermore, the BiOp 

concluded that Amendment 2 was not 

likely to adversely affect any listed 

species of marine mammals, 

invertebrates (i.e., listed species of 

coral) or other listed species of fishes 

(i.e., Gulf sturgeon and Atlantic salmon) 

in the action area. NMFS believes that 

the significant social and economic 

impacts on the SCS commercial shark 

participants from prohibiting gillnet 

gear are disproportionate to the 

ecological benefits especially since the 

No Action alternative in combination 

with alternative A6 reduces blacknose 

shark mortality to levels consistent with 

the rebuilding plan for this species. 

Comment 2: The gear restriction on 

the shark gillnets from South Carolina to 

the Gulf of Mexico and the severe quota 

reduction of SCS will be detrimental to 

the critical scientific data that is needed 

to properly manage this fishery. 

Response: NMFS agrees that 

prohibiting shark gillnet gear would 

affect the scientific data that is used to 

manage the SCS fishery. Based on this 

and other public comments, as well as 

additional data analysis using updated 

blacknose shark weight data, NMFS 

changed its preferred alternative from 

B3 in the DEIS, which would have 

banned gillnets from South Carolina 

south, to B1 in the FEIS, the No Action 

alternative, which retains the current 

authorized gear types. NMFS feels that 

the scientific data collected from 

programs like the Shark Gillnet 

Observer Program provide an invaluable 

source of fishery dependent information 

that can augment fisheries independent 

data collected by NMFS scientists and 

help to inform fishery management 

decisions. 

Comment 3: Contrary to popular 

beliefs, gillnet gear is the most selective 

way of fishing. Gillnet fishermen catch 

on average a 14.4 lb dw sexually mature 

blacknose shark that have spawned at 

least once. The 2008 BiOp stated that 

shark gillnet fishermen do not catch as 

many protected species as bottom 

longline fishermen. The Federal 

observer data has shown that 97.3 

percent of our catch consists of sharks 

and 98.1 percent of the sharks caught 

were the targeted species. This gear is 

not having as big an impact on the stock 

because they are not catching juveniles. 

NMFS should consider a gillnet 

endorsement, not a preferred alternative 

that would close the fishery. In 

addition, the State of South Carolina 

commented that, although the retention 

of sharks taken by gillnets is already 

prohibited in their State waters, NMFS 

should be aware that South Carolina has 

licensed and permitted commercial 

fisherman who have historically fished 

for sharks with gillnets in Federal 

waters. These fishermen will certainly 

be impacted and possibly displaced 

from this fishery through adoption of 

this proposed action. 

Response: In response to this and 

similar comments NMFS made the 

following changes between the DEIS 

and FEIS. In the DEIS, NMFS preferred 

alternative B3, which would have 

prohibited gillnets from South Carolina 

south, but due to recent data and new 

data analysis and public input, NMFS 

changed its preferred alternative in the 

FEIS to B1, the No Action alternative, 

which would retain gillnets as an 

authorized gear in the shark fishery. 

Based on recent data from the SEFSC, 

NMFS changed the average weight for 

blacknose sharks caught in gillnets from 

14.4 lbs to 18.7 lbs in the FEIS. Also, 

NMFS re-analyzed the data from the 

2005–2008 gillnet observer data. Those 

analyses showed that gillnet fishermen 

may be able to target other SCS species, 

and minimize the mortality of blacknose 

sharks. NMFS used this information to 

re-analyze the SCS quota alternatives in 

the FEIS. This resulted in NMFS 

changing the preferred alternative from 

B3 in the DEIS, which would have 

eliminated gillnet as an authorized gear 

in the shark fishery from South Carolina 

south, to B1 in the FEIS, the No Action 

alternative, which will retain all 

currently authorized gears for SCS, 

including gillnets. In addition, NMFS is 

still working with the GMFMC to 

determine the impacts that TEDs have 

on excluding blacknose sharks from the 

shrimp trawl nets. NMFS believes that 

the new preferred alternatives would 

not displace the South Carolina gillnet 

fishermen in Federal waters. 

Comment 4: There are large areas and 

times when gillnet fishermen are not 

allowed to fish. There is already a large 

gillnet closure area due to State water 

closures and the ALWTRP regulations. 

NMFS should work with the few shark 

gillnet fishermen left to address issues 

in the few areas where gillnets are being 

used now. There are not many shark 

gillnet fishermen left in the industry, 

and everyone is a seasoned fishermen 

with over 20 years of experience. 

Response: NMFS agrees that gillnet 

gear is prohibited in many places, such 

as the State waters of Florida and 

Georgia and Southeast Right Whale 

Calving Area. Also, NMFS agrees that 

there are not many gillnet fishermen 

who target sharks. There are still gillnet 

fishermen that catch sharks while 

targeting other species and some of 

those fishermen could target sharks. 

NMFS has gathered all of the comments 

from gillnet fishermen and re-evaluated 

the data on the average size of blacknose 

sharks caught in the gillnet fishery in 

the FEIS. Based on this analysis, NMFS 

changed the average weight for 

blacknose sharks caught in gillnets from 

14.4 lbs in the DEIS to 18.7 lbs in the 

FEIS. Also, the data from the 2005–2008 

Shark Gillnet Observer Program seems 

to indicate that gillnet fishermen may be 

able to target other SCS species, and 

minimize the mortality of blacknose 

sharks. NMFS used this information to 

re-analyze the alternatives regarding 

quotas in the FEIS. The new preferred 

alternative in the FEIS, A6, sets a nonblacknose SCS quota of 221.6 mt dw 

and a blacknose shark quota of 19.9 mt 

dw. In addition, NMFS changed their 

preferred alternative from B3 in the 

DEIS, which would have prohibited 

gillnets from South Carolina south, to 

alternative B1, the No Action alternative 

in the FEIS, which would retain gillnets 

as an authorized gear in the shark 

fishery. 

Comment 5: If a prohibition on gillnet 

gear is implemented, what is going to 

stop NMFS from removing all gillnet 

gear in other fisheries, such as the 

mackerel fishery, in the future? 

Response: In the DEIS, NMFS 

preferred alternative B3, which would 

have prohibited gillnets from South 

Carolina south, but due to recent data 

and new data analysis and public input, 

NMFS changed its preferred alternative 

in the FEIS to B1, the No Action 

alternative, which would retain gillnets 

as an authorized gear in the shark 

fishery. In addition, this amendment 

only deals with management measures 

in the Atlantic shark fishery and any 

measures specific to the mackerel 


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fishery would be implemented through 

the Regional Fishery Management 

Council that has authority for this 

species. This comment does not call for 

change to any specific section of the 

DEIS. Therefore, no specific change was 

made in the FEIS or this final rule in 

response to this comment. 

Comment 6: NMFS received several 

comments on the use of VMS in the 

gillnet fishery. One commenter asked if 

gillnet fishermen would be 

compensated for VMS if gillnet gear is 

banned. Another commenter noted that 

gillnet boats should not have to carry 

VMS since it is an invasion of privacy 

and a waste of money to the fisherman 

and NMFS. Additionally, gillnet 

fishermen already have sufficient 

observer coverage. Another commenter 

noted that NMFS must place significant 

weight on protecting critically 

endangered right whales from 

entanglement and should therefore 

maintain the VMS requirement for all 

shark gillnet vessels. 

Response: As described in the 

comments above, NMFS has identified 

in the FEIS alternative B1, the No 

Action Alternative, as the preferred 

alternative, which would retain gillnets 

as an authorized gear type for the 

Atlantic shark fisheries. The 

requirements for VMS restrictions 

would continue under the current 

regulations. VMS is vital to fisheries 

management, enforcement, and safety. 

VMS is an important tool used to 

monitor fishing activities in time/area 

closures and during the North Atlantic 

right whale calving season to protect 

this endangered species. NMFS has 

several other VMS requirements in 

place for HMS vessels including BLL 

vessels in the vicinity of the midAtlantic shark closed area and all 

vessels with PLL gear on board yearround. Removing VMS requirements is 

beyond the scope of the proposed action 

and does not further the stated purpose 

and need. NMFS, therefore, did not 

include any change in VMS 

requirements from current regulations 

in the FEIS or this final rule. 

Comment 7: The State of South 

Carolina agrees with the proposed 

boundary for the prohibition for shark 

gillnet gear. In 2008, commercial 

fisherman in South Carolina landed 

20,000 lbs ww of smooth dogfish 

primarily from bottom long lines while 

7,384 lbs ww of blacknose sharks were 

landed, with only 372 lbs ww of these 

reported from gillnets. Most catches of 

smooth dogfish in South Carolina occur 

in the winter when interactions with 

whales should be less likely. 

Response: NMFS would like to thank 

the State of South Carolina for 

submitting information on the 

commercial fishing landings in their 

State waters. After reviewing the data 

from the 2005–2008 Shark Gillnet 

Observer Program, which seems to 

indicate that gillnet fishermen may be 

able to target certain species and avoid 

others, NMFS has decided to change the 

preferred alternative from B3 in the 

DEIS, which would have banned 

gillnets from South Carolina south, to 

the No Action alternative, B1 in the 

FEIS, which would continue to allow all 

of the current authorized commercial 

fishing gears for sharks, including 

gillnets. Smooth dogfish would be 

allowed to be landed with all current 

authorized gear types. The FEIS carries 

forward as a reasonable alternative 

available for selection by the decision 

maker, the ban on gillnet as an 

authorized gear in alternative B3. 

Neither the FEIS or this final rule 

changed as a result of this comment. 

However, as noted above, NMFS 

changed the selected alternative in the 

FEIS and made conforming changes in 

Amendment 3 and this final rule as a 

result of other comments on this issue. 

Comment 8: NMFS received several 

comments regarding the overlap of the 

SCS gillnet fishery with other gillnet 

fisheries in the southeast region. 

Comments included: The NMFS 

proposal will force effort into other 

gillnet fisheries (e.g., kingfish fishery); 

NMFS needs to know the number of 

blacknose shark catches in the mackerel 

fishery and how that relates to the 22 

percent mortality of blacknose shark by 

gillnets; if NMFS is taking the bulk of 

gillnet effort away, why not let mackerel 

fishermen keep blacknose sharks; NMFS 

should eliminate blacknose shark 

landings and allow mackerel fishermen 

to land other SCS; and, NMFS should 

collect data on discards in the mackerel 

fishery. 

Response: NMFS recognizes that 

fishermen may adapt in different ways 

to new regulations placed on a fishery, 

which may include increasing their 

effort in other fisheries. NMFS 

continues to collect fishery-dependent 

and fishery-independent data from all 

Federally managed fisheries including 

data on landings, discards, and bycatch. 

While the measures implemented in this 

amendment only pertain to the Atlantic 

shark fisheries, NMFS considers 

cumulative impacts on other fisheries 

and fishery participants when choosing 

preferred alternatives. Based on the 

most recent data, which indicates that 

gillnet fishermen may be able to target 

certain species with gillnet and avoid 

others, NMFS changed the preferred 

alternative from B3 in the DEIS, which 

would have eliminated gillnet gear as an 

authorized gear, to alternative B1 in the 

FEIS, the No Action alternative, which 

retains gillnet gear as an authorized gear 

in the Atlantic shark fishery. Also, 

under the new preferred alternative in 

the FEIS, A6, incidental catches of 

blacknose sharks will continue to be 

allowed. NMFS made changes in the 

preferred alternative from the DEIS to 

the FEIS based on this and similar 

comments and made conforming 

changes in the Final Amendment 3 and 

this final rule. 

C. Commercial Pelagic Shark Effort 

Controls 

Comment 1: NMFS should prefer the 

No Action alternative C1. Shortfin mako 

sharks are underutilized and NMFS 

should not propose any measures. 

Response: Based upon the 2008 

ICCAT stock assessment for shortfin 

mako sharks, NMFS has determined that 

the North Atlantic population is 

experiencing overfishing. Under the 

Magnuson-Stevens Act, if NMFS 

determines that a fishery is overfished 

or approaching an overfished condition 

due to excessive international fishing 

pressure and there are no management 

measures to end such overfishing in an 

international agreement to which the 

United States is a party, it must take 

action at the international level to end 

overfishing (16 U.S.C. §§ 1854, 1854 

note). The ICCAT stock assessment did 

not provide a recommended TAC or 

mortality reductions to prevent 

overfishing of shortfin mako sharks, 

making it difficult to set a quota or other 

limit to prevent overfishing. Because 

there are currently no ICCAT measures 

to end overfishing of shortfin mako 

sharks and U.S. shortfin mako shark 

landings have comprised approximately 

nine percent of international landings 

from 1997 through 2008, domestic 

reductions of shortfin mako shark 

mortality alone would not end 

overfishing of the entire North Atlantic 

stock. Therefore, NMFS believes that 

ending overfishing and preventing an 

overfished status would be better 

accomplished through international 

efforts. 

Comment 2: NMFS received many 

comments regarding the minimum size 

alternatives for shortfin mako sharks 

(alternative C4). These comments 

included: In order to reduce the risk of 

overfishing of the shortfin mako, the 

Environmental Protection Agency (EPA) 

recommends including a measurable 

alternative, such as alternative C4a, 

along with preferred alternatives C5 and 

C6; there should be a minimum size 

limit restriction of 73 inch fork length 

(FL) (185.4 cm FL) for the commercial 

harvest of shortfin mako with a 


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retention limit of 3 fish per trip; the size 

limits for shortfin mako shark should be 

changed to 108 inches FL (274.3 cm FL) 

in the commercial fishery; there should 

be a 72 inch FL (182.9 cm FL) min size 

for recreational and commercial 

fisheries; since it is indicated that the 

commercial fishery lands so few 

shortfin mako sharks below the 

recreational minimum size, 

implementing that minimum size 

should have minor economic impact on 

commercial fishermen, yet would have 

a positive ecological impact on the 

shortfin mako stock; and NMFS should 

not establish a commercial minimum 

size for shortfin mako sharks as that 

management measure would present 

safety at sea issues. 

Response: NMFS analyzed applying 

commercial size limits in the shortfin 

mako fishery according to the size at 

which 50 percent of males reach sexual 

maturity (22 in IDL; equivalent to 73 in 

FL) and the size at which 50 percent of 

females reach sexual maturity (32 IDL; 

equivalent to 108 in FL). Using data 

from pelagic longline (PLL) fishery 

observers and PLL logbook data, NMFS 

estimated the average number of 

additional shortfin mako sharks that 

would be released alive according to the 

proposed 22 in IDL and 32 in IDL size 

limits to be 89 and 5 shortfin mako 

sharks, respectively. Despite the 

potentially minimal economic impacts 

of imposing a commercial size limit for 

shortfin mako sharks, NMFS concluded 

that neither of the size limits would 

dramatically reduce shortfin mako shark 

mortality in the U.S. commercial fishery 

and that any mortality reductions would 

not be enough to end overfishing of this 

species. NMFS has decided to take 

action at the international level through 

international fishery management 

organizations to establish management 

measures to end overfishing of shortfin 

mako sharks. Based on the results of 

future ICCAT stock assessments of 

shortfin mako sharks, NMFS may 

consider and propose additional 

management measures for shortfin mako 

sharks as necessary. 

Comment 3: NMFS received 

numerous comments in support of, and 

in opposition to, the preferred 

alternative to work at the international 

level to end overfishing of shortfin mako 

(alternative C5). 

Response: The United States 

commercial harvest of Atlantic shortfin 

mako sharks has historically been 

incidental in the PLL fishery. NMFS 

determined that the U.S. contribution to 

North Atlantic shortfin mako shark 

fishing mortality is relatively low in 

comparison to the total fishing mortality 

on the North Atlantic stock. According 

to ICCAT shortfin mako landings 

estimates, the United States contributed 

less than 9 percent (3262 mt ww/36,397 

mt ww = 8.6 percent) of the total North 

Atlantic shortfin mako shark fishing 

landings. As such, NMFS believes that 

the status of the stock is due to 

excessive international fishing pressure, 

and domestic reductions of shortfin 

mako shark mortality alone would not 

end overfishing of the entire North 

Atlantic stock. Therefore, NMFS has 

decided to take action at the 

international level through international 

fishery management organizations, 

consistent with section 304(i) of the 

Magnuson-Stevens Act, where countries 

that have large catches of shortfin mako 

sharks could participate in the 

establishment of management measures 

to end overfishing of shortfin mako 

sharks. 

Comment 4: NMFS should take action 

domestically, such as removing shortfin 

mako sharks from the pelagic shark 

species complex and placing it on the 

prohibited shark species list (alternative 

C3). 

Response: The U.S. commercial PLL 

fishery does not specifically target 

shortfin mako sharks and their harvest 

represents a small percentage of the 

overall fishing mortality for the North 

Atlantic shortfin mako shark stock. 

Moving shortfin mako sharks to the 

prohibited shark species list would 

increase the number of dead discards 

from the U.S. PLL fleet, as retention of 

shortfin mako sharks that come to the 

vessel dead would be prohibited. 

Additionally, reducing U.S. shortfin 

mako shark mortality alone would likely 

not be enough to end overfishing for this 

stock. For these reasons NMFS selected 

the preferred alternatives in the FEIS to 

work internationally to end overfishing 

of shortfin mako sharks, and to promote 

the live release of shortfin mako sharks 

domestically. 

Comment 5: NMFS received 

comments stating that commenters are 

troubled by NMFS’ apparent belief that 

it need not implement strong measures 

to end domestic overfishing of shortfin 

mako because the bulk of the catch 

occurs at the international level. Section 

304 of the Magnuson-Stevens Act does 

not prevent NMFS from taking 

immediate action at the domestic level 

to prevent overfishing by U.S. vessels. 

Moreover, the Magnuson-Stevens Act 

section 303 specifies that all fishery 

management plans, including those 

applicable to species that are managed 

under international agreements, have 

effective ACLs and AMs by 2010 or 

2011 unless the agreement specifies a 

different deadline. Nothing in the 

Magnuson-Stevens Act requires NMFS 

to avoid taking action on the domestic 

front simply because applying the 

required measure will not 

instantaneously or singlehandedly end 

overfishing. The United States must take 

a leadership role in ensuring the 

sustainable, scientific management of 

international fisheries, both by 

promoting these measures 

internationally and implementing them 

at home. 

Response: There are several strict 

measures (e.g., landings quota, fins 

attached provision) that shortfin mako 

sharks are managed under domestically, 

and the United States is considered a 

leader in shark fishery management. 

Amendment 3 also includes 

mechanisms for specifying ACLs and 

establishing AMs for Atlantic sharks. 

NMFS believes that taking action at the 

international level through international 

fishery management organizations to 

establish management measures to end 

overfishing of shortfin mako sharks is 

the most effective way to end 

overfishing of shortfin mako sharks in 

the long term without causing 

significant economic impacts to 

domestic fishermen in the short term. 

Sections 102 and 304(i) of the 

Magnuson-Stevens Act encourage this 

approach, particularly for species 

approaching an overfished condition 

due to excessive international fishing 

pressure when there are no management 

measures to end overfishing under an 

international agreement to which the 

United States is a party. The shortfin 

mako shark is part of the pelagic species 

complex, which currently has defined 

criteria for MSY, OY, and status 

determination. NMFS has implemented 

measures that limit commercial harvest 

through quotas and trip limits for 

incidental permit holders that act as 

measures equivalent to ACLs and AMs, 

respectively. The 2008 ICCAT SCRS 

stock assessment did not recommend a 

TAC or necessary mortality reductions 

for shortfin mako sharks. Therefore, it is 

difficult to determine appropriate catch 

levels that would help to stop 

overfishing or be overly restrictive to 

U.S. fishermen, putting them at a 

disadvantage compared to international 

fishermen. NMFS feels that 

international cooperation is essential at 

this time in order to determine the level 

of catch that would stop overfishing on 

the entire Atlantic stock. 

Comment 6: NMFS received several 

comments regarding the proposed 

alternative to promote the live release of 

shortfin mako sharks (alternative C6). 

One commenter stated that about 90 

percent of the shortfin mako sharks that 

are caught on longlines come to the 

vessel alive and asked how NMFS 


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would promote the release of shortfin 

mako sharks. Another commenter 

questioned the effectiveness of this 

alternative and questioned the 

practicability of advising fisheries to 

release saleable sharks even though they 

may not be the target of the fisheries 

that are largely targeting swordfish and 

tuna. Another commenter stated they 

did not support alternative C6 because 

there is no evidence that the alternative 

will be successful especially given that 

NMFS recognizes that discards of 

shortfin mako sharks are rare because 

their meat is highly valuable. The State 

of Georgia commented that it is unclear 

how alternative C6 would impact the 

meat quality of the shortfin mako kept. 

Some commenters noted their support 

for alternative C6. One commenter 

stated that NMFS should promote the 

live release of shortfin mako sharks, but 

should not make it a requirement, and 

that it is common for the distant water 

fleet to release live sharks. 

Response: According to the PLL 

observer program reports from 1992– 

2006, 68.9 percent of shortfin mako 

sharks are brought to the vessel alive 

and 30.1 percent come to the vessel 

dead. Live release of shortfin mako 

sharks would be voluntary under this 

action and could be promoted using 

current HMS outreach mediums (e.g., 

Web site, e-mail listserv, mailings) along 

with others that have yet to be 

determined. This would allow NMFS to 

communicate the current status 

(overfishing occurring) of the North 

Atlantic shortfin mako shark stock in 

the hopes that fishermen will 

voluntarily reduce commercial fishing 

mortality to avoid a future change in 

stock status (overfished) that could lead 

to more restrictive measures. Because 

additional outreach efforts would likely 

be developed over time, NMFS is unable 

to predict how they will impact shortfin 

mako shark mortality in the commercial 

fishery. NMFS is unaware of any price 

differential between shortfin mako 

sharks that arrive at the vessel alive or 

dead, and this action is not expected to 

impact shortfin mako meat quality or 

ex-vessel prices. 

Comment 7: NMFS received multiple 

comments regarding the shortfin mako 

stock assessment. Some commenters 

stated that the United States needs to 

perform a stock assessment domestically 

for shortfin mako sharks, separate from 

the ICCAT assessment. Other 

commenters asked who conducted the 

stock assessment and if it was done the 

same way as other shark stock 

assessments. One commenter stated that 

he is concerned with the doubling of the 

age of maturity and the length of life of 

the female shortfin mako, while the 

male shortfin mako did not seem to 

change in demographics much at all. 

Another commenter felt that the data 

used in the stock assessment is outdated 

and has been flawed for years now. 

NMFS does not use real time data such 

as the 2009 season. The shortfin mako 

shark population has not changed 

drastically in the past 8 years. 

Response: The North Atlantic shortfin 

mako shark stock assessment is 

conducted by ICCAT’s SCRS on an 

international level because of the highly 

migratory nature of the stock between 

international jurisdictions. The ICCAT 

stock assessment uses shortfin mako 

data from all reporting countries. 

Therefore, some of the data and 

assessment approaches used in the 

ICCAT SCRS shortfin mako shark 

assessment may differ from the data and 

approaches used in domestic shark 

assessments, which are conducted 

through the Southeast Data, Assessment, 

and Review (SEDAR) process. In either 

case, NMFS believes that the data and 

approaches used in these shark stock 

assessments represent the best available 

science. Any changes in shortfin mako 

size at maturity estimates occurred due 

to new scientific information, which is 

considered the best available science at 

this time. 

D. Recreational Measures for SCS 

Comment 1: NMFS should implement 

alternative D2 to modify the minimum 

size limit for recreationally caught 

blacknose sharks. 

Response: Alternative D2 would 

modify the minimum recreational size 

for blacknose sharks based on their 

biology from 54 inches FL to 36 inches 

FL. The new restriction would lower the 

current minimum size for blacknose 

sharks and could lead to increased 

landings of blacknose sharks. In order to 

achieve the TAC recommended by the 

2007 blacknose shark stock assessment, 

NMFS would need to reduce overall 

blacknose mortality. Since decreasing 

the minimum size for blacknose sharks 

could result in increased landings of 

blacknose sharks, NMFS did not select 

this alternative at this time. NMFS 

carried this alternative forward for full 

consideration in the FEIS but did not 

identify it as the preferred alternative or 

select it as an element of Final 

Amendment 3. 

Comment 2: The State of South 

Carolina and others support the change 

in the recreational bag limit for Atlantic 

sharpnose sharks from one per person 

per day to two per person per day, 

particularly within the South Atlantic 

region (alternative D3). The Atlantic 

sharpnose was listed as not overfished 

with no overfishing occurring and the 

SCS quota has also been consistently 

under harvested in the South Atlantic 

region. Increasing retention limits for 

Atlantic sharpnose could mitigate the 

economic impacts of SCS quota 

reductions. NMFS has listed the 

Atlantic sharpnose as a readily 

identifiable species, and increasing their 

recreational bag limit should have no 

negative impact on sandbar, dusky, or 

blacknose sharks. 

Response: NMFS thanks the State of 

South Carolina for submitting a 

comment and recreational catch data. 

Alternative D3 would increase the 

retention limit for Atlantic sharpnose 

sharks based on current catches and 

stock status. Based on the 2007 stock 

assessment for Atlantic sharpnose, the 

biomass for Atlantic sharpnose sharks is 

falling towards the maximum 

sustainable yield threshold. While the 

stock is not currently overfished or 

experiencing overfishing, the latest 

stock assessment suggests that 

increasing fishing effort, such as 

increasing the retention limit of Atlantic 

sharpnose sharks, could result in an 

overfished status and/or cause 

overfishing to occur. Thus, since 

increasing the retention limit for 

Atlantic sharpnose could result in 

increased fishing effort and result in 

negative ecological impacts for the 

stock, NMFS did not implement this 

alternative. While NMFS carried 

Alternative D3 forward for full 

consideration as a reasonable alternative 

in the FEIS, it did not select it as part 

of Final Amendment 3. 

Comment 3: NMFS received 

numerous comments regarding the 

proposed alternative to prohibit the 

recreational retention of blacknose 

sharks (alternative D4). Commenters 

stated that few recreational fishermen 

target blacknose and since they rarely 

reach the 54-inch minimum size, 

Alternative D4 would likely have no 

impact. Some commenters were 

concerned that prohibiting the retention 

of blacknose sharks in the recreational 

fishery, while allowing retention in the 

commercial fishery, equates to an 

allocation decision giving 100 percent of 

the quota to one sector. Other 

commenters stated that there was no 

reason recreational anglers should be 

allowed to retain a species that is 

overfished. The State of South Carolina 

commented that NMFS should 

implement alternative D4 because this 

action will provide additional 

protection for blacknose sharks in 

Federal and State waters and help 

educate the public and fishermen as to 

the precarious status of the overall 

blacknose shark population. The State 

of Georgia does not support alternative 


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D4 since the current size limits in place 

under the FMP already afford adequate 

protection for blacknose sharks. Georgia 

commented that NMFS should look at 

the recently enacted management of the 

coastal States relative to shark species 

and determine where the problems with 

recreational retention of blacknose 

sharks are occurring. Georgia supports 

alternative D1, which would be 

consistent with the State regulations to 

the maximum extent practicable. The 

State of Florida commented that NMFS 

should not prohibit the retention of 

blacknose sharks in the recreational 

fishery, and should, instead, work on 

other regulations to end overfishing of 

blacknose sharks. The State’s current 

shark regulations provide conservation 

and management measures that permit a 

reasonable and sustainable annual 

harvest, while additional Federal 

restrictions are not warranted for State 

waters. 

Response: NMFS agrees that few 

recreational fishermen target blacknose 

sharks. Based on public comments and 

the fact that current recreational size 

limits afford adequate protection for 

blacknose sharks, NMFS changed the 

preferred alternative from alternative D4 

in the DEIS, which would have 

prohibited blacknose sharks, to D1 in 

the FEIS, the No Action alternative, 

which maintains the current 

recreational size and bag limits. NMFS 

will maintain the existing recreational 

retention limits for SCS. Recreational 

anglers are currently allowed one 

authorized shark per vessel per trip 

(including SCS). Also, they are allowed 

1 bonnethead shark and 1 Atlantic 

sharpnose shark per person per trip. In 

addition, there is a recreational 

minimum size of 54 inches (4.5 ft) FL, 

which does not apply to Atlantic 

sharpnose or bonnethead sharks 

allowed per person per trip. Most 

blacknose sharks do not reach the 

current Federal minimum size of 54 

inches FL, therefore, it is presumed that 

most recreational blacknose shark 

landings currently occur in State waters, 

where size and retention limits for 

blacknose sharks may be less restrictive 

than Federal regulations. In the Atlantic 

Ocean, under the ASMFC Interstate 

Coastal Shark FMP there is currently no 

minimum size limit for blacknose 

sharks. Because the Federal minimum 

size limit of 54 inches FL, acts as a de 

facto retention prohibition, and after 

evaluating public comments on the 

DEIS, NMFS decided to change the 

preferred alternative in the FEIS to 

alternative D1. However, NMFS asks 

each State to implement measures 

consistent with the current Federal 54 

inch FL size limit to help reduce 

recreational mortality in State waters 

and meet rebuilding targets for 

blacknose sharks. Depending on the 

results of the upcoming blacknose shark 

stock assessment, NMFS may consider 

prohibiting recreational retention of 

blacknose sharks in future actions. 

Thus, at this time, NMFS believes that 

these current regulations will continue 

to provide adequate protection for 

blacknose sharks in the recreational 

fishery. However, it may be necessary to 

increase outreach to recreational 

fishermen on the identification of 

blacknose sharks so those that are 

caught can be released in a manner that 

maximizes survival of this species. It 

may also be necessary to work with 

States to ensure consistent regulations 

and enforcement. 

Comment 4: If NMFS prohibits the 

retention of blacknose sharks in the 

recreational fishery, how will this 

impact ASMFC member States? 

Response: If NMFS adds a particular 

species to the prohibited species list, 

according to the ASMFC Interstate 

Coastal Shark FMP, the member States 

would need to implement management 

measures that would provide a 

conservation equivalency for blacknose 

sharks or States could decide to mirror 

NMFS regulations. However, in the 

DEIS, NMFS was not proposing to add 

blacknose sharks to the prohibited 

species list. Rather, in the DEIS, NMFS 

proposed not authorizing recreational 

possession of blacknose sharks. Thus, 

under the proposed management 

measure in the DEIS, ASMFC 

regulations would not be affected unless 

ASMFC took action to be consistent 

with Federal regulations. 

Comment 5: Recreational fishermen 

cannot reliably identify blacknose 

sharks. If the retention of blacknose 

sharks is prohibited in the recreational 

fishery, NMFS will need to implement 

an outreach program to educate 

recreational anglers. 

Response: Based on public comments 

and the fact that current recreational 

size limits afford adequate protection for 

blacknose sharks, NMFS changed the 

preferred alternative from alternative D4 

in the DEIS, which would have 

prohibited blacknose sharks, to D1 in 

the FEIS, the No Action alternative 

which maintains the current 

recreational size and bag limits. 

Currently, NMFS has recreational shark 

identification placards that categorize 

the differences between the recreational 

sharks. The placards can be attained on 

the HMS Web site (http:// 

www.nmfs.noaa.gov/sfa/hms/sharks/) or 

by contacting the HMS division at 301– 

713–2347. In the future, NMFS could 

cooperate with States to increase 

identification of this species in State 

waters as a larger portion of the 

recreational catch of blacknose sharks 

occurs in State waters. 

E. Recreational Measures for Pelagic 

Sharks 

Comment 1: NMFS received 

comments in support of the No Action 

alternative (alternative E1). 

Response: Based on the 2008 ICCAT 

SCRS stock assessment for shortfin 

mako sharks, NMFS has determined that 

the North Atlantic population is 

experiencing overfishing. Under the 

Magnuson-Stevens Act, if NMFS 

determines that a fishery is overfished 

or is approaching an overfished 

condition due to excessive international 

fishing pressure and there are no 

management measures to end such 

overfishing in an international 

agreement to which the United States is 

a party, it must take action at the 

international level to end overfishing 

(16 U.S.C. 1854, 1854 note). The ICCAT 

stock assessment did not recommend a 

TAC or mortality reductions to prevent 

overfishing of shortfin mako sharks, 

making it difficult to set a quota or other 

limits to prevent overfishing. Because 

there are currently no ICCAT measures 

to end overfishing of shortfin mako 

sharks, and U.S. shortfin mako shark 

landings have comprised approximately 

nine percent of international landings 

from 1997 through 2007, NMFS believes 

that taking action on an international 

level to end overfishing of shortfin mako 

sharks is necessary at this time. 

The No Action alternative would 

allow the recreational harvest of one 

shortfin mako shark greater than 54 

inches FL per vessel per trip. The 

decision to work on an international 

level to end overfishing and promote the 

live release of shortfin mako sharks will 

not change the current recreational 

shortfin mako shark size or bag limits. 

Comment 2: NMFS received several 

comments regarding the minimum size 

for recreational shortfin mako fishing 

(alternative E2). Comments included: 

Recreational limits for shortfin mako 

should be one fish per trip of any size; 

we are requesting a bag limit of two 

mako sharks and a minimum size of 72 

inches FL (182.9 cm FL)—this minimum 

size should apply to all fishermen, 

recreational and commercial; NMFS 

should implement a realistic minimum 

size like the minimum length 

requirement of 66 inches (167.6 cm) in 

the Annual Mako Mania Tournament; 

and NMFS should adopt alternative 

E2b, which increases the minimum size 

for recreational fishers from 54 to 73 

inches FL—this coupled with the 


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preferred alternatives for shortfin mako 

management, represent an integrated 

strategy that will immediately reduce 

shortfin mako harvest while aspiring to 

make long-term, systemic changes in 

both international management of and 

domestic attitudes toward the shortfin 

mako fishery. 

Response: Two size limits were 

analyzed for the recreational shortfin 

mako shark fishery based on the 

estimated size of sexual maturity of 

females (108 inches FL) and the 

estimated size of sexual maturity of 

males (73 inches FL). Large Pelagic 

Survey (LPS) data from 2004 to 2008 

was used to estimate the impact of the 

proposed size limits on recreational 

shortfin mako shark landings from 

tournament and non-fishing tournament 

activities. This analysis found that 99.5 

percent of all recreational landings fell 

under the proposed 108 inch FL size 

limit, and 60.3 percent of all 

recreational landings fell under the 

proposed 73 inch FL size limit. The 73 

inch FL size limit would have a greater 

impact on non-tournament landings, as 

81 percent of the non-tournament 

landings fell under the 73 inch size 

limit compared to 51.7 percent of the 

tournament landings. Implementing 

either of these size limits would reduce 

a large percentage of shortfin mako 

shark landings from a fishery that 

contributes a small percentage of the 

overall North Atlantic shortfin mako 

shark landings, would likely not end 

overfishing on the stock, and could have 

negative social and economic impacts. 

Therefore, NMFS believes that ending 

overfishing and preventing an 

overfished status would best be 

accomplished through development of 

management measures at the 

international level to be adopted and 

implemented by the United States and 

other nations. 

Comment 3: NMFS received several 

comments, including from the State of 

South Carolina, in support of the 

proposed alternatives E3 and E4. 

Commenters felt that those measures 

should assist in overall shortfin mako 

recovery while not becoming overly 

burdensome to the U.S. sector of the 

fishery that is not chiefly responsible for 

the current stock status. However, 

NMFS also received several comments 

that did not support the proposed 

alternative. These commenters noted 

that with recreational fishing 

tournaments actively targeting shortfin 

mako sharks, offering large prizes for 

their capture, and placing a high value 

on retaining them as trophies, it is 

difficult to see how promoting a 

voluntary live release measure will have 

any effect on the species’ mortality. 

These commenters also note that 

shortfin mako sharks are highly valued, 

both as one of the few sharks generally 

deemed ‘‘edible’’ and as a recognized 

‘‘trophy’’ to be weighed and displayed 

upon capture. Operators of for-hire 

vessels are unlikely to release a legalsized mako over the objections of their 

fares. While a significant proportion of 

the recreational shark fishery is 

comprised of anglers who say they 

practice catch-and-release, exceptions to 

that general practice are often made 

when a shortfin mako is brought to 

boatside. 

Response: NMFS agrees that working 

on an international level to reduce 

overfishing and promoting the live 

release of shortfin mako sharks is the 

best course of action to take at this time. 

Because the United States contributes 

very little to shortfin mako shark 

mortality in the North Atlantic, ending 

overfishing and preventing an 

overfished status may be better 

accomplished through international 

efforts with other countries that have 

large takes of shortfin mako sharks. 

NMFS believes that this action is 

appropriate at this time rather than 

implementing restrictive management 

measures unilaterally, which could 

unilaterally disadvantage U.S. 

fishermen. Promoting the release of 

shortfin mako sharks that are brought to 

the vessel alive, and the NMFS Code of 

Angling Ethics (64 FR 8067), could 

result in the reduction of fishing 

mortality of shortfin mako sharks and 

thus, have positive ecological impacts 

for this species. In promoting the live 

release of shortfin mako sharks, 

recreational fishermen will have the 

opportunity to reduce shortfin mako 

shark mortality with the intent to 

maintain the stock and avoid an 

overfished determination, which could 

lead to new restrictions on the U.S. 

recreational fishery. Outreach efforts 

will be developed over time, therefore, 

NMFS is unable to predict how they 

will impact shortfin mako shark 

mortality in the recreational fishery. 

Comment 4: NMFS should implement 

alternative E5, prohibit landing shortfin 

mako sharks in recreational fisheries, or 

at least prohibit landings in fishing 

tournaments. NMFS acknowledges that 

shortfin mako sharks could meet two of 

the most important of the four criteria 

that lead to being listed as a prohibited 

species (i.e., there is sufficient biological 

information to indicate the stock 

warrants protection and the fact it 

resembles other prohibited species). 

NMFS has rejected this alternative 

simply because it would have a 

significant negative effect on 

commercial fishery revenue (over a 

quarter of a million dollars annually) 

and it would inhibit expansion of the 

pelagic longline fleet. Further, NMFS 

speculates that prohibiting retention 

could result in increased dead discards. 

This rationale is inadequate. 

Response: Placing shortfin mako 

sharks on the prohibited species list 

would result in a recreational catch and 

release fishery for this species. NMFS 

decided not to prohibit landing of 

shortfin mako sharks in the recreational 

fishery because, given the small 

numbers of shortfin mako sharks landed 

in the recreational fishery in 

comparison to international landings, 

prohibiting the possession of U.S. 

caught shortfin mako sharks is unlikely 

to end overfishing on the stock, and 

because of the importance of shortfin 

mako sharks in recreational fishing 

tournaments. If shortfin mako are 

prohibited in the commercial fishery, 

increases in dead discards mainly apply 

to the commercial PLL fleet, where over 

30 percent of shortfin mako caught are 

dead at haulback. In the recreational 

fishery, post-release mortality rates for 

shortfin mako sharks are generally 

believed to be low when injuries from 

hooking and releasing the shark are 

minimized, therefore, NMFS would not 

anticipate a significant increase in dead 

discards with a recreational shortfin 

mako shark retention prohibition. 

NMFS believes that the preferred 

alternatives, to work internationally to 

end overfishing of shortfin mako sharks 

and to promote the live release of 

shortfin mako sharks domestically, are 

adequate at this time. 

Comment 5: The EPA notes that the 

DEIS is unclear regarding the impact of 

shortfin mako shark landings attributed 

to the recreational fishery in comparison 

to landings from the commercial fishery. 

Alternatives E2a and/or E2b, which are 

similar to the commercial size limit 

alternatives, should be preferred, since 

an increase in size limits could have 

significantly positive ecological impact 

upon this species and would lead to a 

large majority of the recreationallycaught shortfin mako sharks being 

released alive. 

Response: In the DEIS, NMFS 

calculated average annual recreational 

shortfin mako shark landings from 

ICCAT estimates from 1981 to 2007. 

Because there were no ICCAT landings 

estimates available for the commercial 

shortfin mako shark fishery from 1981 

to 1991, the impact of the recreational 

fishery on shortfin mako shark mortality 

may have been inflated. In the FEIS, 

NMFS compares recreational and 

commercial ICCAT estimates of shortfin 

mako shark landings over years where 

data for both fisheries are available 


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(1992–2008). This analysis shows that 

shortfin mako shark landings from the 

U.S. commercial (109,611 sharks 

landed) and recreational (110,256 sharks 

landed) fisheries are similar over that 

time period. Implementing the size 

limits proposed in Alternatives E2a or 

E2b will reduce a large percentage of 

shortfin mako shark landings from a 

fishery that contributes a small 

percentage of the overall North Atlantic 

shortfin mako shark landings. Therefore, 

implementing size limits would 

unnecessarily disadvantage U.S. 

fishermen in relation to those from other 

countries who also contribute to 

shortfin mako shark mortality. NMFS 

believes that ending overfishing and 

preventing an overfished status would 

best be accomplished through 

development of management measures 

at the international level to be adopted 

and implemented by the United States 

and other nations. 

Comment 6: NMFS received a 

comment that asked about the postrelease survival for shortfin mako 

sharks. 

Response: Scientific studies have not 

been conducted regarding the postrelease survival of North Atlantic 

shortfin mako sharks caught in U.S. 

commercial or recreational fisheries, 

therefore, it is currently unknown for 

these fisheries. A study by Hight et al. 

2007, estimated the post-release survival 

of shortfin mako sharks caught on PLL 

gear at approximately 80 percent. This 

research was conducted in the Pacific 

Ocean off of California using different 

gear (J hooks) and shorter soak times 

(∼3 hours) than in the U.S. Atlantic PLL 

fishery. Therefore, it may not be 

representative of the post-release 

survival of North Atlantic shortfin mako 

sharks caught in the U.S. Atlantic PLL 

fishery. In the recreational fishery it is 

believed that post-release survival is 

very high, especially when injuries from 

hooking and releasing the shark are 

minimized and fishermen release sharks 

in a way that maximizes their survival. 

Comment 7: NMFS says that the U.S. 

catch proportion is less than 10 percent. 

Last year, the data was extrapolated and 

the range was between 4–5 percent. If 

that is correct, NMFS is overstating the 

relevancy of the U.S. catch to the entire 

Atlantic-wide mortality. The United 

States is not a big player in the shortfin 

mako shark fishery. Canada and Spain 

will determine the fate of shortfin mako 

sharks at ICCAT. 

Response: The proportion of U.S. 

shortfin mako shark catch referred to in 

the DEIS was calculated from estimated 

commercial shortfin mako shark 

landings and discards reported to 

ICCAT from 1997 to 2008, which is 

approximately 9 percent of the Atlanticwide shortfin mako shark landings over 

that time period (3431 mt ww/39,769 mt 

ww = 8.6 percent). This indicates that 

the United States contributes a small 

proportion to the overall fishing 

mortality on the North Atlantic shortfin 

mako shark stock. 

Comment 8: Several commenters felt 

that the proposed alternatives would 

close the shortfin mako recreational 

fishery. 

Response: NMFS considered five 

alternatives for pelagic sharks in the 

recreational fishery, and only one, 

adding shortfin mako sharks to the 

prohibited species list, would prohibit 

recreational landings of shortfin mako 

sharks. The preferred alternatives in the 

FEIS, working on an international level 

to end overfishing and promoting the 

live release of shortfin mako sharks, will 

not prohibit landings of shortfin mako 

sharks or close the recreational fishery. 

F. Smooth Dogfish 

Comment 1: NMFS received several 

comments in support of the No Action 

alternative (alternative F1) and 

mirroring ASMFC smooth dogfish 

regulations (alternative F3). For 

example, the State of North Carolina 

opposed the preferred alternative F2, 

and supported alternative F1 under the 

smooth dogfish management measure. 

The State of Virginia and other 

commenters support Alternative F1 as 

their preferred option, but could also 

support Alternative F3. The State of 

Virginia believes Addendum I to the 

ASMFC Coastal Shark FMP is a 

compromise between the ease of species 

identification for Law Enforcement and 

the need by the commercial fishery to 

completely process smooth dogfish at 

sea due to their rapid spoilage. The 

State feels that the current ASMFC 

management regime for smooth dogfish 

should allow NMFS to take no action at 

this time (alternative F1) or to add 

smooth dogfish under NMFS 

management and mirror the provisions 

of the ASMFC Interstate Shark FMP 

(alternative F3). Similarly, the MAFMC 

supports the No Action alternative 

(alternative F1) since the fishery is not 

a growth fishery and landings have been 

stable. The MAFMC also commented 

that if no action (alternative F1) is 

selected, the Council would support 

requesting ASMFC to adopt mandatory 

dealer reporting requirements and 

establish a quota consistent with 

alternative F2a3. The MAFMC also 

noted that if NMFS determines that it 

will implement Federal management, 

then as a secondary choice the MAFMC 

supports alternative F3 for smooth 

dogfish. 

Response: Because smooth dogfish is 

not currently a Federally managed 

species and fishery data reporting is not 

required, catch, effort, and participant 

data are sparse. These smooth dogfish 

data limitations have led to an unknown 

stock status and an unknown condition 

of the fishery. One way to rectify these 

shortcomings and provide needed 

conservation and management of 

smooth dogfish is to bring the species 

under Federal management. The 

Magnuson-Stevens Act requires 

preventing overfishing while achieving 

optimum yield on a continuing basis. 

Collection of smooth dogfish fishery 

data will facilitate stock assessments 

and effort estimates and addressing 

overfishing and other mandates under 

the Magnuson-Stevens Act. NMFS did 

not prefer the No Action alternative 

(Alternative F1) because maintaining 

the status quo would perpetuate the 

unknown condition of the fishery. 

Furthermore, because the resource is 

available along most of the eastern U.S. 

coast and there is a market for the 

product, smooth dogfish effort could 

increase as other fisheries become more 

constrained. 

NMFS chose not to prefer Alternative 

F3, mirroring the ASMFC smooth 

dogfish measures, because the ASMFC 

plan contains some provisions that 

NMFS cannot implement and does not 

include others that NMFS must 

implement. On May 6, 2009, the 

ASMFC approved a smooth dogfish 

Addendum to the Atlantic Coastal 

Sharks FMP for public comment. 

Included within this Addendum is an 

exception for smooth dogfish to allow 

at-sea processing (i.e., removal of shark 

fins while still onboard a fishing vessel), 

removal of recreational retention limits 

for smooth dogfish, and removal of the 

two hour net-check requirement for 

shark gillnets. The at-sea processing 

would require a five-percent fin to 

carcass ratio, but would allow for the 

removal of fins at sea. The allowance for 

the removal of shark fins while still 

onboard a fishing vessel and the 

removal of the two hour net-check 

requirement differs from current Federal 

regulations for other shark species. 

NMFS considers the requirements for 

gillnet checks and maintaining shark 

fins naturally attached through 

offloading to be important to minimize 

impacts on protected resources and to 

prevent shark finning, respectively. 

NMFS recently implemented the fins 

attached regulation for all Atlantic 

sharks for enforcement and species 

identification reasons and does not 

favor creating a potential loophole that 

could hinder enforcement. In addition, 


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ASMFC has not established a quota or 

a permitting requirement for the smooth 

dogfish fishery. As noted above, NMFS 

is required to establish ACLs and AMs 

under the Magnuson-Stevens Act and 

believes that permitting is the first step 

to gaining information about the fishery. 

Thus, NMFS has decided not to mirror 

the ASMFC regulations at this time. 

Nonetheless, under alternative F2, 

NMFS will delay implementation of the 

management measures until the 

beginning of the smooth dogfish season 

in 2012 and, in the interim, continue to 

work with ASMFC and the MAFMC to 

ensure Federal and State regulations are 

consistent to the extent practicable. 

Requiring that fins remain naturally 

attached to the smooth dogfish carcass 

is important to NMFS for several 

reasons: To facilitate species 

identification; to maintain consistency 

with other shark regulations that require 

that the fins remain attached while 

keeping the carcass essentially whole; 

and to maintain consistency with the 

United States’ international shark 

conservation and management 

positions. Identifying all sharks to the 

correct species is a vital step in vessel 

and dealer reporting. These reports are 

used to monitor catch levels in relation 

to quotas and to advise stock 

assessments. When ASMFC 

implemented their regulations allowing 

the removal of smooth dogfish fins 

during certain seasons, they only 

considered the potential overlap in 

species distribution between sandbar 

and smooth dogfish. They did not 

consider the potential overlap with 

many other species of sharks that NMFS 

manages including SCS and spiny 

dogfish and the potential for 

misidentification with these species. 

NMFS heard during the proposed rule 

comment period that participants in the 

smooth dogfish fishery fully process the 

fish into ‘‘logs’’ or fillets of meat at sea. 

Identifying the species of fullyprocessed carcasses from cuts of meat is 

very difficult. For this reason, for a 

number of years before first requiring 

that fins be attached in 2008, NMFS had 

prohibited the filleting of sharks at sea 

and required all sharks be landed as 

logs. In the 2006 Consolidated HMS 

FMP, NMFS took a further step of 

requiring that the second dorsal and 

anal fin be maintained on the dressed 

carcass. Furthermore, the ability to 

identify both carcasses and fins to the 

species level is critical for enforcing the 

prohibition on shark finning for all 

Federally managed Atlantic shark 

species. The most effective way for 

fishermen, dealers, and enforcement to 

properly identify both fins and carcasses 

is to require that fins remain naturally 

attached through offloading. Detached 

smooth dogfish fins can be difficult for 

most people to differentiate from other 

shark fins. Differentiating numerous 

detached smooth dogfish fins from other 

shark fins can be inefficient and 

impractical from an enforcement 

perspective, particularly in a high 

volume fishery. 

All sharks currently managed by the 

Secretary of Commerce (Secretary) (large 

coastal sharks, small coastal sharks, and 

pelagic sharks) must be landed with fins 

naturally attached. Deviating from this 

measure in the smooth dogfish fishery 

would introduce management 

inconsistencies and potential 

enforcement loopholes. The fins 

naturally-attached regulation is also 

consistent with the U.S. international 

position on shark conservation and 

management. Globally, shark finning is 

a serious threat to many shark species. 

The United States has co-sponsored 

fins-attached proposals and supported 

an international ban on the practice of 

shark finning and has recently proposed 

adding several species to the CITES 

Appendix II listing to aid in monitoring 

shark fin trade. An effective method to 

enhance the enforceability of a finning 

ban is to require that fins remain 

naturally attached to the shark carcass 

through offloading. In addition to this 

requirement, the United States also 

encourages maintaining the five percent 

fin-to-carcass ratio. The five percent finto-carcass ratio is a critical tool for 

dockside enforcement when 

enforcement officers are unable to 

monitor an entire offload, and enhances 

shark conservation efforts by allowing 

NOAA to utilize dealer landing records 

to detect potential shark finning 

violations post-landing for subsequent 

follow-up investigation. If domestic 

exemptions to the fins naturally 

attached regulation were implemented, 

it could undermine the United States’ 

international position on the fins 

naturally attached policy and other 

shark conservation and management 

measures. 

Comment 2: Several commenters 

asked what would happen if NMFS 

decided not to implement management 

actions (alternative F1). They asked if it 

would that mean that the ASMFC would 

be the sole managers of smooth dogfish. 

Response: Whether NMFS decided to 

implement management measures or 

not, ASMFC regulations would not 

apply in Federal waters. The 

jurisdiction of ASMFC management 

plans only includes State waters, and 

the absence of a Federal management 

plan would not extend ASMFC’s 

jurisdiction. While smooth dogfish are 

not currently managed at the Federal 

level, there are Federal regulations in 

place that apply to smooth dogfish 

fishing in the EEZ, including the Shark 

Finning Prohibition Act. This Act 

prohibits landing shark fins without the 

corresponding carcass and in excess of 

5 percent of the carcass weight. If NMFS 

decides not to implement management 

measures, these Federal regulations will 

still apply. This comment did not 

require any revision in the FEIS. 

Comment 3: NMFS received 

comments supporting the proposed 

alternative (alternative F2), which 

would implement management 

measures in the smooth dogfish fishery. 

Several commenters noted that this 

alternative would also require issuance 

of Federal permits, which are essential 

in remedying the serious deficiencies in 

data and would lead to better stock 

assessments. The preferred alternative 

of Federal management has the added 

benefit of obtaining dealer reports and 

providing for Federal fishery observers 

aboard vessels targeting dogfish. The 

State of Georgia supported the proposed 

alternative and noted that as ASMFC 

has recognized the importance of 

smooth dogfish, it is only fitting that 

NMFS should also consider responsible 

management of this species in Federal 

waters. 

Response: NMFS believes that 

implementing Federal management 

measures, should the species be brought 

under NMFS management, would be an 

important first step in meeting its 

Magnuson-Stevens Act mandate to 

prevent overfishing while achieving, on 

a continuing basis, optimum yield. 

Achieving this mandate would require 

the collection of smooth dogfish fishery 

data to perform stock assessments and 

effort estimates. Federal permits, dealer 

reporting, and on board observers would 

provide valuable participant 

information and better characterize the 

nature of the fishery. The ASMFC’s 

action to include smooth dogfish in the 

coastal shark management plan is 

further indication of emerging 

awareness that the species is in need of 

conservation and management 

measures. Due to the highly migratory 

nature of smooth dogfish and its large 

range, it would provide a positive 

ecological benefit across their range 

regardless of political boundaries. The 

DEIS identified alternative F2 as the 

preferred alternative and no change was 

made in the FEIS or this final rule 

except that the implementation of the 

measures under the preferred alternative 

would be delayed until the beginning of 

the smooth dogfish fishing season in 

2012 to allow time for fishery 


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participants to adjust to the new 

requirements. 

Comment 4: NMFS received many 

comments specific to the 5 percent fin 

to carcass ratio for smooth dogfish, 

including that the 5 percent ratio is too 

low and that the ratio should be closer 

to 10–12 percent. The MAFMC 

commented smooth dogfish are unique 

in their fin to carcass ratio. They have 

two dorsal fins that are large enough to 

retain and sell. The carcasses are 

typically sold with the napes removed, 

rather than split, which significantly 

reduces the weight basis of the carcass 

and increases the fin to carcass ratio. 

The fins are removed with a straight cut, 

rather than the crescent cut required for 

other shark fins, thereby increasing its 

weight and the fin to carcass ratio. As 

a result, the fin to carcass ratio for 

smooth dogfish is typically 9 to 10 

percent if the two pectoral fins and two 

dorsal fins are retained. The tails are not 

typically retained due to their low 

value, but if they are retained, the total 

fin weight increases to 13 to 14 percent. 

Response: On December 21, 2000, the 

Shark Finning Prohibition Act (Pub. L. 

105–557) (Act) was signed into law. The 

Act established a rebuttable 

presumption that any shark fins landed 

from a fishing vessel or found on board 

a fishing vessel were taken, held, or 

landed in violation of the Act if the total 

weight of shark fins landed or found on 

board exceeded five percent of the total 

weight of shark carcasses landed or 

found on board. It was implemented by 

NMFS through a final rule released in 

February 11, 2002 (67 FR 6124). Thus, 

any changes to the five percent ratio 

would have to be modified by 

Congressional action. NMFS does not 

have discretion to selectively implement 

the five percent fin to carcass ratio in 

certain shark fisheries. Furthermore, 

difficulty in abiding by the five percent 

fin to carcass ratio further supports 

NMFS’ requirement that all smooth 

dogfish fins remain naturally attached to 

the carcass through offloading. Keeping 

the fins naturally attached to the carcass 

through offloading makes it easier for 

fishermen to comply with the Shark 

Finning Prohibition Act. In order to 

help fishermen document that sharks 

were landed with their fins attached 

NMFS modified the dealer reporting 

forms so that it can be clearly 

documented that the sharks were landed 

with fins attached. NMFS did not add 

an additional alternative to the FEIS or 

this final rule in response to this 

comment. 

Comment 5: The MAFMC encourages 

NMFS to address Section 307(1)(P) of 

the Magnuson-Stevens Act as it relates 

to the smooth dogfish fishery, and 

suggests exploring a Letter of 

Authorization for the fishery addressing 

the rebuttable presumption clause. The 

smooth dogfish fishery fully utilizes the 

carcasses, so there is no conservation 

purpose served for this species by the 

five percent limit fin to carcass ratio. 

Response: Section 307(1)(P) of the 

Magnuson-Stevens Act states that ‘‘[i]t is 

unlawful (1) for any persons to * * * 

(P)(i) remove any of the fins of a shark 

(including the tail) and discard the 

carcass of the shark at sea; (ii) to have 

custody, control, or possession of any 

such fin aboard a fishing vessel without 

the corresponding carcass; or (iii) to 

land any such fin without the 

corresponding carcass.’’ The section 

continues that ‘‘[f]or the purposes of 

subparagraph (P) there is a rebuttable 

presumption that any shark fins landed 

from a fishing vessel or found on board 

a fishing vessel were taken, held, or 

landed in violation of subparagraph (P) 

if the total weight of shark fins landed 

or found on board exceeds 5 percent of 

the total weight of shark carcasses 

landed or found on board.’’ 

As noted in the previous response, 

NMFS has no discretion to selectively 

implement the five percent fin to 

carcass ratio in certain shark fisheries, 

therefore, NMFS cannot issue Letters of 

Authorizations to exempt fishermen 

from complying with the MagnusonStevens Act and statutory requirements 

of the five percent fin to carcass ratio. 

Comment 6: NMFS received 

comments specific to the proposed 

requirement that smooth dogfish fins 

remain naturally attached to the carcass 

(alternative F2) including the 

requirement that smooth dogfish be 

landed with their fins naturally attached 

since allowing an exemption for smooth 

dogfish will undermine the overall 

management and protection of sharks. 

NMFS also received comments opposed 

to the actions including: The fins 

attached requirement will end the 

commercial smooth dogfish fishery and 

would have no conservation value for 

smooth dogfish; requiring fins remain 

naturally attached to the carcass in the 

summer will reduce the meat quality 

because fishermen will have to remove 

the fins in 95 degree heat while on the 

dock; requiring fins remain naturally 

attached to the carcass will cause the 

meat to spoil faster; NMFS stated that 

their intention was not to change the 

fishery, but all the proposed 

requirements, particularly requiring fins 

remain naturally attached, will change 

the fishery; NMFS should adopt a rule 

that mirrors the provisions approved by 

the ASMFC, which requires that the 

smooth dogfish fins need not be landed 

attached, except for the dorsal fin 

during the months of July through 

February; and, the fishery is a 98- 

percent directed fishery, with little or 

no by-catch of other shark species. The 

State of South Carolina recommended 

that NMFS consider allowing permitted 

commercial shark fisherman to process 

and remove fins from smooth dogfish at 

sea, with the exception of the 1st and 

2nd dorsal fins. This would allow these 

landed sharks to be differentiated from 

other species, including sandbar sharks. 

The MAFMC commented that smooth 

dogfish flesh is uniquely soft and 

translucent, and is singular among shark 

species in its tendency to discolor if the 

fish is not promptly bled, thoroughly 

rinsed to remove any remaining blood, 

and iced. This unique attribute of the 

fish requires at-sea processing. The fins 

and tails have always been removed 

and, in some cases, the backs and fins 

are sold to different customers. 

Requiring the fins and tails to remain 

attached would substantially impede 

the bleeding and cleaning process that 

is essential to preventing discoloration 

and preserving the quality of the fish. 

Response: The FEIS acknowledges 

and considers the concerns raised in 

this comment with respect to potential 

difficulties resulting from the inability 

to completely process smooth dogfish at 

sea. However, requiring that fins remain 

naturally attached to the carcass 

facilitates species identification and 

prevents exceptions to the Federal 

prohibition on shark finning. The 

requirement also maintains consistency 

across all Secretary of Commercemanaged shark species in the Atlantic 

Ocean, Gulf of Mexico, and Caribbean 

Sea and reflects the U.S. international 

position regarding shark conservation. 

While the fins naturally attached 

requirement will apply to Federal 

smooth dogfish fishing permit holders 

regardless of fishing location, the intent 

of the measure would not be to obviate 

the ASMFC measures, as suggested in 

one of the comments. The ASMFC and 

NMFS operate under different 

mandates, jurisdictions, and contexts 

(domestic and international). These 

differences sometimes result in, and can 

necessitate, different management 

measures. 

NMFS’ intention, when implementing 

smooth dogfish management measures, 

is to minimize alterations to the fishery. 

As such, NMFS is delaying the effective 

date of the management measures under 

the preferred alternative in the FEIS 

until the beginning of the fishing season 

in 2012 to allow fishermen and dealers 

time to adjust to the new requirements. 

Smooth dogfish management measures 

will not be implemented until the 2012 

fishing season, and NMFS believes that 


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the methods and techniques employed 

in other shark fisheries can be adopted 

in the interim. However, the practices 

currently employed in the fishery are 

sometimes in conflict with NMFS’ shark 

conservation and management position 

and Congressional mandates such as the 

Shark Finning Prohibition Act. As noted 

in several of the comments above, 

requiring smooth dogfish fins to remain 

naturally attached to the carcass differs 

from the current practice in the fishery. 

As described in the response to a 

comment above, NMFS deemed that 

maintaining a fins-attached requirement 

would be critical for several reasons: 

(1) To facilitate species identification, 

(2) to maintain consistency across all 

Federally managed shark species, and 

(3) to maintain consistency with the 

U.S. and NMFS international position 

with regard to shark conservation and 

management. A potential NMFS 

requirement to land smooth dogfish 

with fins naturally attached would not 

prohibit at-sea processing methods 

currently in place in most other Atlantic 

shark fisheries that maximize meat 

quality, freshness, and processing 

efficiencies. It would remain legal to 

remove the shark’s head and viscera for 

proper bleeding. To reduce dock-side 

processing needs, all fins could be 

partially cut at the base and only left 

attached via a small flap of skin. NMFS 

did not add an additional alternative to 

the FEIS or this final rule in response to 

this comment. 

Comment 7: NMFS received 

comments regarding the proposed quota 

for smooth dogfish (alternative F2a3). 

Numerous commenters stated that the 

proposed quota was too high for a 

species lacking a stock assessment and 

that has been categorized as near 

threatened by the International Union 

for the Conservation of Nature (IUCN). 

NMFS also received numerous 

comments stating that the proposed 

quota is too low such as: In the early 

1990s, Virginia alone caught over a 

million pounds and North Carolina or 

New Jersey could easily take the 

proposed quota themselves in the next 

year or two without increasing effort. 

The amount of take in the fishery 

depends on whether the fish are 

available when the fishermen go out. 

The quota needs room for growth since 

there are a lot of fishermen targeting 

smooth dogfish. Several commenters 

stated that the data used to determine 

the quota were flawed since a lot of 

people are not reporting on the vessel 

trip reports (VTRs) and that NMFS 

needs to look at all sources and 

geographic regions (including the Gulf 

of Mexico) of mortality including trawl 

gear. NMFS also received a comment 

that NMFS should not set a smooth 

dogfish quota the first year and should 

set quota the second year based on 

landings data. The State of Virginia 

commented that the absence of a 

statistically sound time series of 

landings or any type of analytical stock 

assessment for smooth dogfish makes 

this quota alternative impractical. 

Quota-based management requires some 

current information on the status 

(biological) of the stock. The State of 

Virginia also noted that there are 

approximately twelve commercial 

fishermen that land in excess of 500 

pounds of smooth dogfish during any 

one year from 2004 through 2008 in 

Virginia. For the five year period of 

2004 through 2008, Virginia’s smooth 

dogfish harvest totaled 2,316,648 

pounds. A total of 1,140,809 pounds 

were harvested from State waters (49.2 

percent) and 1,175,839 pounds from 

Federal waters (50.8 percent). The State 

of South Carolina supports Federal 

management of smooth dogfish and the 

proposed method of determining the 

annual commercial and recreational 

landings, plus the addition of 6 mt ww 

of smooth dogfish to the present 60 mt 

ww quota for all sharks collected in 

exempted fishing programs. The State of 

Georgia supports the quota limit for the 

smooth dogfish fishery, since the logic 

used to calculate the quota appears 

sound at this time. The MAFMC states 

that NMFS commercial landings data 

shows zero smooth dogfish landings 

from Virginia for 1996, while greater 

than 500,000 lbs are known to have 

been purchased by a single Virginia 

dealer in that year. The MAFMC 

recommended that the collection of 

fishery data through mandatory logbook 

reporting be initiated as soon as 

possible. The data collection will help 

develop a stock assessment. 

Response: The Magnuson-Stevens 

Fishery Conservation and Management 

Reauthorization Act (Pub. L. 109–479) 

added Section 303(a)(15) to the 

Magnuson-Stevens Act which requires 

all FMPs for Federally managed 

fisheries to establish a mechanism for 

specifying ACLs and to include AMs to 

ensure that ACL are not exceeded. The 

mechanism by which this requirement 

is applied to shark fisheries is detailed 

in Chapter 1 of the FEIS for Amendment 

3, including the necessity to establish an 

annual commercial quota. Despite 

sparse smooth dogfish landings reports 

and the lack of a stock assessment, 

establishing an ACL to prevent 

overfishing would be a condition of 

bringing the species into the HMS FMP 

and under Federal management under 

the Magnuson-Stevens Act. 

Inline with the intention to minimize 

changes to the fishery, NMFS proposed 

to establish a quota that would allow 

current exploitation levels of smooth 

dogfish to continue. Although some 

changes to the fishery would be 

necessary, as noted above (e.g., fins 

naturally attached), the primary goal of 

the smooth dogfish portion of this 

amendment is to characterize and 

collect data on the fishery. This goal 

necessitates a quota near actual 

exploitation levels. Due to the lack of 

reporting requirements in the fishery, 

NMFS relied on available data to 

estimate current landing levels. Despite 

the lack of management, many 

fishermen in the mid-Atlantic region 

have been reporting their landings. 

Some of these fishermen have Federal 

permits for other species and are 

required to report all landings, 

including smooth dogfish, due to the 

regulations in those other fisheries. 

Other fishermen do not have Federal 

permits and report smooth dogfish 

landings voluntarily. These landings, 

and the number of vessels reporting 

these landings, have remained fairly 

constant since the late 1990s. Existing 

sources, particularly the Atlantic 

Coastal Cooperative Statistics Program 

(ACCSP) for commercial catches across 

all gear types, offer insight into the 

current State of the fishery. NMFS used 

ACCSP data to estimate current landing 

levels and then used this estimate to 

establish an annual quota. In the DEIS, 

NMFS proposed a quota equal to the 

maximum annual landings between 

1998 and 2007 plus one standard 

deviation in the ACCSP data. Setting the 

quota higher than maximum reported 

landings was intended to account for 

what NMFS believes to be significant 

underreporting due to the lack of 

smooth dogfish reporting requirements. 

During the public comment period, 

however, NMFS received numerous 

comments, as described above, that the 

proposed quota does not adequately 

account for underreporting. Several 

States provided State data that also 

indicated the sources NMFS used may 

be underreporting actual landings. 

Based on these comments and Southeast 

Fishery Science Center (SEFSC) advice, 

NMFS decided to deviate from the 

preferred alternative in the DEIS and to 

identify alternative F2a4, the quota 

equal to the annual maximum landings 

plus two standard deviations, or 715.5 

mt dw (1,577,319 lbs dw), as the 

preferred alternative in the FEIS. NMFS 

believes that setting the quota at a level 

that accounts for current landings does 


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not threaten smooth dogfish stocks. A 

review of the reported landings does not 

indicate any immediate declining trend, 

and as noted by one of the commenters, 

the average size of landed smooth 

dogfish is increasing. Based upon these 

limited data and observations, there are 

few indications that the smooth dogfish 

stock is overfished and in need of an 

immediate reduction in mortality. In 

fact, based on the limited data available, 

smooth dogfish landings appear to have 

been stable since the mid-1990s. The 

IUCN status appears to be based upon 

the fact that smooth dogfish have an 

unknown stock status. The IUCN 

description of smooth dogfish notes that 

there is no stock assessment for the 

species. Regardless, NMFS does not rely 

on IUCN statuses when developing 

management measures, but rather uses 

peer-reviewed stock assessments and 

primary literature. Once more data is 

gathered on this species, NMFS could 

complete a stock assessment. NMFS 

would reassess the quota at that time 

and make any necessary changes. 

Comment 8: NMFS received several 

comments relating to the set-aside quota 

for research on smooth dogfish. One 

commenter noted that Alternative F2b1 

provides for a ‘‘set-aside’’ quota for an 

exempted fishing program. It is 

appropriate for NMFS to establish this 

set-aside, though clearly this set aside 

should be subtracted from the total 

quota and not provided as an additional 

quota. The State of South Carolina 

believes the quota for smooth dogfish 

landed in exempted fishing programs is 

adequate, and notes that they have 

several public aquaria and three to four 

researchers in the State who have 

permits to collect sharks. None of those 

permit holders have expressed concerns 

to the State about the proposed quota. 

The State of Georgia noted that the set 

aside amount for the exempted fishing 

program is reasonable. 

Response: NMFS identified the 

establishment of a separate smooth 

dogfish set-aside quota for the exempted 

fishing program of 6 mt ww as the 

preferred alternative in the FEIS. The 

set-aside quota for the exempted fishing 

permit (EFP) program is an important 

part of any fishery management plan. 

The EFP program facilitates research 

that can be used to inform management 

measures and provide data for stock 

assessment. Creating a separate and 

distinct set-aside quota from the 

principle quota ensures that research 

activities do not impede the commercial 

or recreational fisheries through quota 

limitations. As noted in the previous 

response, NMFS’ intention when 

establishing the commercial quota was 

to set it at a level that would account for 

all annual commercial landings. For this 

reason, it is not prudent to subtract the 

set-aside quota from the overall 

commercial quota. Doing so would 

result in a smaller commercial quota 

that might not fully account for the 

current annual commercial landings. In 

the future, after performing a stock 

assessment and characterizing the 

fishery, adjustments could be made to 

the set-aside quota as well as the 

commercial quota. 

Comment 9: Any differences between 

the NMFS and ASMFC plans will 

complicate smooth dogfish fishing since 

fishermen will have a difficult time 

following the regulations. There must be 

coordination between ASMFC and 

NMFS. 

Response: On January 1, 2010, the 

ASMFC Coastal Sharks FMP, which 

includes smooth dogfish measures in 

Addendum I, was implemented across 

most of the Atlantic coast States. The 

ASMFC plan contains several measures 

that differ from NMFS’, as detailed in 

the response to Comment 1 of this 

section, resulting in a few 

inconsistencies between the two plans. 

NMFS recognizes the importance of 

consistent regulations between State 

and Federal waters for both stock health 

and ease of compliance. While 

complimentary ASMFC and NMFS 

plans are not possible at this time, 

NMFS will continue to work closely 

with the ASMFC toward similar 

management measures and will 

consider any future changes to the 

ASMFC plan to ensure measures are as 

consistent as possible between State and 

Federal waters. As additional data from 

the fishery becomes available and the 

fishery becomes more fully 

characterized, NMFS will have better 

information to inform collaboration and 

future management measures. NMFS is 

aware of and disclosed the potential 

inconsistencies between the ASMFC 

Coastal Shark FMP and Federal 

management of smooth dogfish under 

the Magnuson-Stevens Act in the FEIS. 

Comment 10: The State of Virginia 

noted that having fins attached would 

significantly change how the fishery is 

conducted and smooth dogfish 

fishermen would shift all their effort 

into State waters. By shifting effort from 

Federal to State waters, Alternative F2 

provokes an unintended consequence of 

increasing the likelihood of interaction 

between smooth dogfish gear and 

several stocks of bottlenose dolphin that 

spend the majority of the year within 

State waters. 

Response: NMFS recognizes that 

differences in Federal and State smooth 

dogfish regulations could redistribute 

effort resulting in a fishery that is no 

longer equally divided between State 

and Federal waters. However, regardless 

of where fishing activities occur, 

protected resource interactions are a 

concern, and care must be taken to 

avoid or minimize impacts on marine 

mammals and sea turtles. In Federal 

waters, smooth dogfish fishermen will 

be required to abide by both the gillnet 

and other requirements in 50 CFR part 

635 and with the regulations 

implemented under various Take 

Reduction Plans (TRPs) in 50 CFR part 

229 to minimize adverse impacts on 

protected resources. Although NMFS 

does not have jurisdiction over the 

smooth dogfish fishery in State waters, 

Section 118 of the Marine Mammal 

Protection Act (MMPA) tasks NMFS in 

the development and implementation of 

TRPs to reduce serious injuries and 

mortalities of marine mammal 

populations incidental to commercial 

fishing activities. These TRPs have 

numerous requirements to minimize 

impacts on marine mammal populations 

and are applicable in both State and 

Federal waters. The permitting 

requirement in the preferred alternative 

should enhance the ability of smooth 

dogfish fishermen to participate in these 

TRPs. Numerous TRPs exist, including 

the Bottlenose Dolphin Take Reduction 

Plan (BDTRP), which smooth dogfish 

fishermen will have to abide by if 

fishing in Virginia State waters. Specific 

regulations pertinent to the BDTRP can 

be found at 50 CFR 229.35. Any 

redistributed effort into Virginia’s State 

waters affecting bottlenose dolphins 

will be addressed under the BDTRP or 

other applicable TRP. 

In addition, NMFS is currently 

engaged in formal Section 7 

consultation in accordance with the 

ESA, paragraph 7(a)(2), to determine the 

potential level of incremental effect that 

may arise as a result of the preferred 

management measures for smooth 

dogfish in the FEIS. NMFS has not yet 

issued a final BiOp for the smooth 

dogfish fishery. NMFS will review that 

BiOp once it is issued and supplement 

the analysis in this FEIS if the 

consultation reveals any new or 

significant effects with respect to the 

interaction between gillnet fishing for 

smooth dogfish and protected species 

that were not considered in the 2008 

BiOp for Amendment 2 to the 2006 

Consolidated HMS FMP. The FEIS 

incorporated by reference the 2008 BiOp 

for Amendment 2 to the 2006 

Consolidated HMS FMP. A detailed 

discussion of the effects of such 

management relevant to the shark 

fishery is included in that document. 

NMFS does not anticipate any 


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substantial change in impact to 

protected species since the measures 

proposed for smooth dogfish 

management are largely administrative, 

and thus unlikely to affect the manner 

and extent of fishing for smooth dogfish 

or redistribution of effort into other 

fisheries. NMFS assumes there is a 

correlation between fishing effort and 

protected species interactions. Since 

smooth dogfish management measures 

would establish a quota and permit 

requirement, fishing effort for smooth 

dogfish would be capped or slightly 

reduced with a corresponding 

diminishment in the possibility of 

increased protected resource 

interactions. In addition, increased 

observer data in the smooth dogfish 

fishery as a result of a Federal permit 

requirement would better characterize 

protected resources interactions with 

the smooth dogfish fishery. 

Comment 11: Florida fishermen catch 

smooth dogfish in the Tortugas and use 

them as bait because smooth dogfish are 

worthless. Gulf of Mexico fishermen 

catch them while grouper fishing. If you 

catch 5,000 lbs of grouper, you might 

have about 50 lbs of smooth dogfish. 

The common length is 12–24′′ and they 

are caught at the top of the continental 

shelf. NMFS should not include rules 

made for the mid-Atlantic in the Gulf of 

Mexico. If smooth dogfish are causing 

problems in the mid-Atlantic, NMFS 

should establish separate regulations on 

them. Fishermen in the Gulf of Mexico 

cannot fish for anything without 

catching a few smooth dogfish. There 

are no smooth dogfish fisheries in the 

Gulf of Mexico. 

Response: Smooth dogfish is a widely 

distributed species, ranging from 

Massachusetts to South America 

including the Gulf of Mexico and 

Caribbean Sea (see Chapter 11 in the 

FEIS). Despite this wide distribution, 

the current fishery is concentrated in 

the Mid-Atlantic region, and no reports 

of commercial landings in the Gulf of 

Mexico could be found. Although there 

are no reported landings of smooth 

dogfish in the Gulf of Mexico, research 

trawls by the SEFSC have shown that 

they are present in the region including 

in Louisiana waters. Fishermen in the 

Gulf of Mexico that incidentally catch 

smooth dogfish, but do not retain the 

fish or parts of the fish, will not be 

required to abide by Federal smooth 

dogfish regulations or need to obtain a 

smooth dogfish permit. 

Under current Atlantic HMS 

regulations, it is illegal to catch sharks 

and use them as bait. If smooth dogfish 

were under Federal management, this 

requirement would apply to smooth 

dogfish as well. The known distribution 

of smooth dogfish, validated by 

comments such as this one, necessitates 

a central, unified management authority 

of the species. The fact that a market 

exists for smooth dogfish, and that they 

are regularly encountered in places 

other than the Mid-Atlantic, make 

management measures and data 

collection in the fishery important. Even 

though fishermen do not currently land 

smooth dogfish in the Gulf of Mexico, 

the presence of both the resource and a 

market means a fishery could develop in 

that region, particularly if other more 

profitable fisheries are reduced or 

limited. NMFS did not add an 

alternative in the FEIS or this final rule 

to separate the smooth dogfish into 

separate management units or fisheries 

in response to this comment. 

Comment 12: Why will recreational 

fishermen be required to have a smooth 

dogfish permit? Would the recreational 

permit for smooth dogfish be the same 

as the current HMS recreational permit? 

Most of the smooth dogfish are caught 

incidentally. No one targets smooth 

dogfish recreationally. The State of 

South Carolina notes that few smooth 

dogfish are landed in their recreational 

fishery as that species primarily occurs 

off our coast in the winter months when 

angler effort is decreased. 

Response: Efforts to characterize the 

smooth dogfish fishery must include 

both commercial and recreational 

fishermen to adequately estimate effort 

and catch. As when recreationally 

fishing for other Atlantic sharks, smooth 

dogfish recreational fishermen would 

need to obtain an HMS Angling permit 

and charter/headboats that take smooth 

dogfish would need to obtain an HMS 

Charter/Headboat permit. Those who 

already hold this permit will not need 

an additional permit to fish for smooth 

dogfish recreationally. 

Comment 13: The State of South 

Carolina commented that unless future 

stock assessments indicate that smooth 

dogfish are overfished the current 

commercial and recreational size and 

retention limits seem appropriate. 

Response: NMFS agrees that at this 

time there is no justification for 

imposing a size or retention limit for 

smooth dogfish in the recreational or 

commercial fishery. This is inline with 

the intent to minimize changes to the 

fishery while collecting data to 

characterize it. Currently, the fishery 

does not operate under any type of size 

or retention limit restrictions. After a 

stock assessment is completed on the 

species, changes could be necessary. 

Comment 14: A few commenters 

noted that the EFH for smooth dogfish 

proposed by NMFS looks appropriate. 

The State of South Carolina agrees that 

the occurrence data presented is where 

dogfish are captured within U.S. waters. 

However, the State notes that there is a 

discontinuity between the Gulf of 

Mexico and the Atlantic coast groups (as 

presented in Figure 11.1 in the FEIS) 

that may indicate further investigation 

of species characteristics and 

distribution is warranted. 

Response: Identifying and describing 

EFH for Federally managed species is a 

statutory requirement mandated by the 

Magnuson-Stevens Act. As detailed in 

Chapter 11 of the FEIS, NMFS used a 

variety of research survey datasets to 

identify and describe the EFH around 

positive smooth dogfish observations. 

Although NMFS relied on 

geographically limited datasets, the 

resulting EFH designation closely 

matches literature descriptions of 

smooth dogfish distribution, boosting 

confidence in the determination. The 

Northeast Fisheries Science Center 

(NEFSC) offered suggestions on 

available research survey datasets. Once 

incorporated in the analyses used in the 

FEIS, these datasets contributed to a 

more robust smooth dogfish designation 

than that proposed in the DEIS of 

Amendment 3. The discontinuity in 

EFH off the Georgia and eastern Florida 

coasts will require further analysis due 

to the lack of smooth dogfish data in the 

area. However, literature on smooth 

dogfish distribution also note an 

absence of the species in that area. As 

noted, NMFS incorporated changes to 

its identification and description of EFH 

in the FEIS based on this and similar 

comments. 

Comment 15: NMFS stated in 

Amendment 3 that there is not sufficient 

information for smooth dogfish EFH. If 

that is the case, why did NMFS propose 

EFH? 

Response: As noted in the previous 

response, identifying and describing 

EFH for Federally managed species is a 

statutory requirement mandated by the 

Magnuson-Stevens Act. NMFS is 

confident that the designated smooth 

dogfish EFH is accurate, particularly 

after incorporating the datasets 

suggested by the NEFSC. NMFS will 

continue to work to ensure that EFH for 

all HMS species utilizes the best 

available information. No changes were 

made in the FEIS based on this 

comment. 

Comment 16: NMFS received several 

comments questioning whether smooth 

dogfish is an HMS and should be 

managed by NMFS or a Regional 

Fishery Management Council, such as 

the MAFMC. Commenters stated that 

the Magnuson-Stevens Act defines HMS 

as an ‘‘oceanic shark’’ and asked if 

smooth dogfish are oceanic sharks. 


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Commenters also asked why spiny 

dogfish are managed by the MAFMC 

and NEFMC. One commenter stated that 

NMFS should manage smooth dogfish 

fisheries since it is the only Atlantic 

shark species which is subjected to a 

targeted fishery that has no Federal 

management measures. That commenter 

also felt a Federal management 

component would likely enhance new 

management efforts by the ASMFC. 

Response: The Magnuson-Stevens Act 

is the primary statute that authorizes 

Federal management of fisheries in the 

U.S. Exclusive Economic Zone. Regional 

fishery management councils have 

authority to manage species and stocks 

within their geographic jurisdiction as 

established by the Act. However, the 

Magnuson-Stevens Act gives the 

authority to the Secretary to manage 

stocks or species of highly migratory 

species that move across more than one 

of the five Atlantic councils’ 

jurisdictions. Provisions of the Act 

relevant to Secretarial management of 

HMS include: 

Section 3(21): The term ‘‘highly migratory 

species’’ means tuna species, marlin 

(Tetrapturus spp. and Makaira spp.), oceanic 

sharks, sailfishes (Istiophorus spp.), and 

swordfish (Xiphias gladius). Section 302(3): 

The Secretary shall have authority over any 

highly migratory species fishery that is 

within the geographical area of authority of 

more than one of the following Councils: 

New England Council, Mid-Atlantic Council, 

South Atlantic Council, Gulf Council, and 

Caribbean Council. 

Section 301(3) (National Standard 3): To 

the extent practicable, an individual stock of 

fish should be managed as a unit throughout 

its range, and interrelated stocks of fish shall 

be managed as a unit or in close 

coordination. 

Magnuson-Stevens Act Section 3(21) 

defines HMS. Unlike some other HMS, 

sharks mentioned in the definition are 

not defined by family or species. Rather, 

the term ‘‘oceanic shark’’ is used. The 

statute does not further expound upon 

or define this term. NMFS, therefore, 

considered two major factors in making 

its determination with respect to smooth 

dogfish. First, it considered the life 

history, habitat, migratory patterns, 

occurrence and distribution of the 

species. Second, NMFS considered its 

interpretation in the context of the 

various provisions of the MagnusonStevens Act applicable to HMS to 

ensure that its interpretation was logical 

and consistent with those provisions. 

Given the broad application of the term 

in conjunction with the habitat, 

migratory patterns and geographic 

distribution of the species, smooth 

dogfish is fairly characterized as an 

oceanic shark consistent with the 

structure and application of the 

Magnuson-Stevens Act. A more detailed 

rationale follows. 

NMFS examined section 302(3) and 

section 301(3) (National Standard 3). 

Both of these sections relate to 

management authority based on the 

distribution of the species. As noted in 

Chapter 11 of the FEIS, smooth dogfish 

inhabit the geographical area of all five 

Atlantic Regional Fishery Management 

Councils, and across international 

boundaries to South America and 

Mexico. Further, smooth dogfish tend to 

be found inshore during the warmer 

months. However, thermally stable, 

deep offshore waters are preferred in the 

colder months (up to 200m) and 

Caribbean populations occupy waters 

deeper than 200m. Data from research 

surveys show that smooth dogfish are 

found along the eastern seaboard, in the 

Gulf of Mexico, and in the Caribbean 

Sea. Based on these factors, NMFS 

reasonably concluded that the smooth 

dogfish is an oceanic shark and, given 

its range across multiple Atlantic 

Regional Fishery Management Council 

Jurisdictions, highly migratory. 

Moreover, management of smooth 

dogfish under a single FMP is consistent 

with the Magnuson-Stevens Act’s 

mandates for the Secretary to manage 

highly migratory species to the extent 

practicable as a single management unit. 

Smooth dogfish is a separate species 

from spiny dogfish and has separate 

management concerns. NMFS is making 

a determination to manage and conserve 

smooth dogfish on its own merits. 

Comment 17: Multiple commenters 

asked who requested Federal smooth 

dogfish management. 

Response: NMFS received smooth 

dogfish management requests from 

environmental conservation 

organizations. Furthermore, around the 

time of scoping for Amendment 3, both 

the ASMFC and the MAFMC identified 

that smooth dogfish were in need of 

conservation and management and 

began the process of creating 

management measures. These efforts by 

the ASMFC and the MAFMC reinforce 

the emerging realization that the fishery 

is in need of both State and Federal 

management. 

Comment 18: NMFS should work 

with the small group of fishermen that 

fish for smooth dogfish to gather info on 

the fishery rather than proposing new 

requirements. 

Response: Although a specialized 

fishery with perhaps a smaller number 

of fishermen than other fisheries, the 

smooth dogfish fishery still includes a 

large number of participants. Within the 

Vessel Trip Report (VTR) and Costal 

Fisheries Logbook databases, an average 

of 213 vessels per year reported landing 

smooth dogfish between 2004 and 2007. 

This large number of participants makes 

collaboration with each of the smooth 

dogfish participants impracticable. 

However, under the smooth dogfish 

preferred alternative, alternative F2, 

implementation of management 

measures will be delayed until the 

beginning of the smooth dogfish fishing 

season in 2012. This delay will allow 

NMFS to continue outreach and have 

discussions with smooth dogfish 

participants regarding the fins attached 

regulation and will allow fishery 

participants time to modify their 

operation to comply with the 

regulations that will be implemented in 

2012. A discussion of the smooth 

dogfish fishery is included in the FEIS. 

Comment 19: NMFS should ensure 

that smooth dogfish will be available 

year round. The January 1 opening for 

smooth dogfish could be good for North 

Carolina, since it is a winter fishery. It 

would affect North Carolina fall catch 

rates if the fishery became quotalimited. 

Response: Inline with the intention to 

minimize changes to the fishery, NMFS 

decided to establish a quota that would 

allow current exploitation levels of 

smooth dogfish to continue. NMFS 

believes that the established quota is at 

a sufficient level to prevent quota 

limitations if the fishery maintains 

current landing levels. Because there are 

no regional or seasonal restrictions 

included in the preferred alternative, 

the quota should be available yearround, and no specific region or State 

will disproportionately benefit from the 

quota. NMFS plans to open the fishery 

each year with a Federal Register notice 

that would likely publish near the 

beginning of each year. 

Comment 20: One commenter noted 

that smooth dogfish fishermen fish 

several nets at once, with short soak 

times. It would change the fishery if 

NMFS required the nets to remain 

attached to the vessel. The State of 

South Carolina commented that the 

smooth dogfish gillnet fishery has been 

practiced for some time in North 

Carolina and the Mid-Atlantic States. If 

during this time there have been no or 

few problems associated with 

interactions with endangered or 

protected species, the State sees no 

reason to increase restrictions or change 

the way the fishery has historically been 

conducted. One commenter noted that 

the two hour net checks probably would 

not hurt smooth dogfish fishermen since 

the soak time is short. However, 

fishermen cannot do net checks with a 

flashlight looking down into the water 

because the nets are set deep. Also, net 

checks will be difficult to enforce. 


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Another commenter stated that NMFS 

should extend existing gillnet gear 

tending requirements to smooth dogfish 

fishermen, such as requiring that 

gillnets be checked at least every two 

hours and that protected and prohibited 

species are released. Gillnets frequently 

catch non-target species, including 

prohibited shark species, marine 

mammals, and sea turtles. The nature of 

the gear makes some level of bycatch 

nearly unavoidable. 

Response: NMFS agrees that the 

requirement to keep gillnets attached to 

the vessel and to perform net checks 

could alter how the smooth dogfish 

fishery operates. Smooth dogfish 

fishermen are already required to and 

will continue to be required to abide by 

Federal Take Reduction Plans specific 

to the gear type and region of fishing 

activity. These plans include the 

Atlantic Large Whale Take Reduction 

Plan, the Bottlenose Dolphin Take 

Reduction Plan, and the Mid-Atlantic 

Harbor Porpoise Take Reduction Plan 

that include requirements minimize 

interactions with protected resources 

and to ensure those that are incidentally 

caught are released in a manner that 

maximizes survival. 

NMFS is currently engaged in formal 

Section 7 consultation in accordance 

with the ESA, paragraph 7(a)(2), to 

determine the potential level of 

incremental effect that may arise as a 

result of the preferred management 

measures for smooth dogfish in the 

FEIS. NMFS has not yet issued a final 

BiOp for the smooth dogfish fishery. 

NMFS will review that BiOp once it is 

issued and supplement the analysis in 

this FEIS if the consultation reveals any 

new or significant effects with respect to 

the interaction between gillnet fishing 

for smooth dogfish and protected 

species that were not considered in the 

2008 BiOp for Amendment 2 to the 2006 

Consolidated HMS FMP. The FEIS 

incorporates by reference the 2008 BiOp 

for Amendment 2 to the 2006 

Consolidated HMS FMP. A detailed 

discussion of the effects of such 

management relevant to the shark 

fishery is included in that document. 

NMFS does not anticipate any 

substantial change in impact to 

protected species since the measures 

proposed for smooth dogfish 

management are largely administrative, 

and thus unlikely to affect the manner 

and extent of fishing for smooth dogfish 

or redistribution of effort into other 

fisheries. NMFS assumes there is a 

correlation between fishing effort and 

protected species interactions. Since 

smooth dogfish management measures 

would establish a quota and permit 

requirement, fishing effort for smooth 

dogfish would be capped or slightly 

reduced with a corresponding 

diminishment of the possibility of 

increased protected resource 

interactions. In addition, increased 

observer coverage in the smooth dogfish 

fishery as a result of a Federal permit 

requirement would better characterize 

protected resources interactions with 

the smooth dogfish fishery. 

Under the alternative (F2), identified 

as the preferred alternative in the FEIS 

and selected by NMFS as part of 

Amendment 3 in the Record of 

Decision, the implementation of the 

management measures would be 

delayed until the beginning of the 

smooth dogfish fishing season in 2012 

to allow time to consider and evaluate 

the information and requirements 

included in the final smooth dogfish 

BiOp. If the assessment of effects in the 

BiOp provides new and meaningful 

information not considered in this FEIS, 

NMFS will supplement the FEIS, as 

appropriate, before implementing any 

management measures proposed in 

alternative F2. In the interim, NMFS 

will not impose any management 

authority or related conservation and 

management measures on the smooth 

dogfish fishery, and thus will not cause 

any effect on protected species related 

to such management. In other words, 

the selection of preferred alternative F2 

maintains the status quo with respect to 

the smooth dogfish fishery as it relates 

to protected species prior to receiving a 

final BiOp. While NMFS would finalize 

the rulemaking with measures for 

blacknose shark and shortfin mako 

sharks becoming effective 30 days after 

publication of the final rule in the 

Federal Register, the measures, if any, 

selected for management of smooth 

dogfish would be deferred to allow 

NMFS to develop reasonable and 

prudent alternatives (RPAs) that could 

be implemented while avoiding adverse 

impacts to listed species, as necessary. 

Comment 21: Trawl fishermen skin 

smooth dogfish at sea and sell them as 

steaks. 

Response: Under Federal 

management, trawl fishermen will likely 

not be able to continue skinning smooth 

dogfish at sea, and will not be able to 

continue processing the fish into steaks 

at sea. Smooth dogfish, like all other 

Federally managed Atlantic shark 

species, would be required to be landed 

with fins naturally attached to the 

carcass under alternative F2, the 

alternative identified as the preferred 

alternative in the FEIS and selected by 

NMFS as part of Amendment 3 in the 

ROD. Trawl fishermen could continue 

to skin the shark if they can leave the 

fins naturally attached to the carcass, 

but they will be unable to process the 

smooth dogfish into steaks at sea. NMFS 

did not add an alternative in the FEIS 

or this final rule in response to this 

comment. 

Comment 22: NMFS might cause an 

influx of new fishermen into the fishery 

with the new open access permits. 

Response: NMFS acknowledges that 

there may be some fishermen who will 

obtain a permit and try to establish a 

catch history in case the fishery is 

changed to limited access at some point 

in the future. There may also be some 

fishermen in areas that do not currently 

have a smooth dogfish fishery, such as 

in the Gulf of Mexico, who may obtain 

a permit in the hopes of creating a 

similar fishery in that region. However, 

NMFS does not believe that the creation 

of a smooth dogfish open access permit 

will attract large numbers of new 

fishermen to the fishery or cause a large 

increase in fishing effort. The fishery is 

currently unmanaged in Federal waters 

and operates with few restrictions. 

Although NMFS has tried to minimize 

changes to the fishery, Federal 

management does introduce new 

restrictions, including a requirement to 

keep fins naturally attached to the 

carcass. If fishermen did not choose to 

enter the fishery when it was 

unmanaged, it is unlikely that Federal 

management would entice them to enter 

the fishery now. A discussion of the 

socio-economic impacts of bringing the 

smooth dogfish fishery under Federal 

management is included in the FEIS. 

Comment 23: NMFS should proceed 

with a stock assessment for smooth 

dogfish throughout their range. The 

State of Virginia suggested that pooling 

resources between ASMFC, NMFS, and 

MAFMC may expedite the process. 

Response: A stock assessment is 

important for any fishery management 

plan. Knowing the current biomass and 

how it relates to Bmsy or to virgin stock 

biomass informs quota levels and size 

and retention limits. NMFS believes that 

the first step in working toward a stock 

assessment is collecting data and 

characterizing the fishery. Once NMFS 

has sufficient data from the fishery a 

stock assessment could be done in the 

future to determine the stock status of 

this species. These are the goals of the 

smooth dogfish measures in the 

preferred alternative for Amendment 3 

as explained in the FEIS. NMFS would 

like to work closely with ASMFC, 

MAFMC and other interested parties in 

conducting a stock assessment. 

G. General Comments 

Comment 1: Is there a mechanism in 

place for ASMFC to request that the 


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Secretary implement complementary 

management measures in the EEZ? 

Response: The ASMFC can always 

offer management recommendations to 

NMFS regarding Federally managed 

species. Furthermore, NMFS included 

an alternative in the FEIS to implement 

smooth dogfish management measures 

that mirror ASMFC measures. However, 

after analyzing the smooth dogfish 

measures in place in the 2009 Interstate 

Coastal Sharks FMP and Smooth 

Dogfish Addendum I, NMFS determined 

that it would likely be unable to 

implement many of the management 

measures due to Magnuson-Stevens Act 

and Shark Fining Prohibition Act 

requirements. 

Comment 2: NMFS needs to add 

deepwater sharks to the list of 

prohibited shark species. Deepwater 

sharks are particularly slow growing, 

which makes them vulnerable to 

overfishing. Related populations have 

been severely and rapidly depleted from 

fisheries in other parts of the world. 

Response: Implementing Federal 

management of deepwater sharks by 

placing them on the prohibited list 

would not likely have significant 

ecological benefits since deepwater 

sharks are not currently targeted in any 

fishery and are only caught as bycatch. 

Placing this group on the prohibited list 

would not prevent bycatch of these 

species. Additionally, prohibiting the 

landing of deepwater sharks would limit 

data gained from incidental catches. If 

prohibited, these rarely encountered 

species would have to be released and 

could not be landed and submitted for 

subsequent analysis. Establishing 

management measures for deep water 

sharks is beyond the scope of 

Amendment 3 and does not meet the 

purpose and need described in the DEIS 

and FEIS. Alternatives for such 

measures were therefore not considered 

in the FEIS. 

Comment 3: Deepwater sharks are not 

commercially important in the United 

States for food. NMFS needs to truly 

understand the fisheries that interact 

with deepwater sharks and be able to 

assess the deepwater shark stocks 

accurately, especially if there is a 

bycatch that is or could become a 

secondary market landing and sale. 

Response: As noted in the previous 

response, deepwater sharks are rarely 

encountered and only caught as 

bycatch. NMFS encourages anyone who 

catches a deepwater shark to submit the 

shark to scientists for research. 

Comment 4: We are concerned about 

the accuracy of some of the statistics 

presented on recreational fishery 

‘‘harvest.’’ For example, NMFS states 

that the number of porbeagle sharks that 

were ‘‘harvested’’ by recreational 

fishermen across all reporting years was 

zero. Tournaments regularly target this 

species and award prizes for landing 

them. Additionally, NMFS shows that 

annual harvest of sand tiger sharks was 

zero for the reporting years except for 

2001 when 604 were taken and 2006 

when 1,040 were killed. It is hard for us 

to see how the recreational fishery took 

over 1,000 sand tiger sharks in a single 

year, more than a decade after they were 

listed as a prohibited species. As such, 

we are concerned about the reliability of 

the data used by NMFS as a basis for 

determining impacts on species. 

Response: Collection of recreational 

fishery catch and effort data relies on 

survey methods. Data are collected 

through a combination of dockside 

intercepts and telephone surveys. Since 

it is not possible to sample all of the 

millions of fishing trips taken, 

recreational surveys require sampling a 

representative portion of fishing trips, 

and then expanding the results. 

Recreational harvest estimates for 

species that are rarely landed, as is the 

case with many shark species, are 

typically very imprecise using survey 

methods designed for more commonly 

caught species. MRFSS estimates of 

sharks harvested may also be inaccurate 

due to the fact that the MRFSS does not 

sample at tournament locations. The 

NOAA Fisheries Large Pelagics Survey 

(LPS), which is conducted from Maine 

through Virginia, typically produces 

more reliable recreational catch 

estimates for rare event species such as 

sharks, tunas, and billfish. However, 

landings of species such as porbeagle 

and sand tiger sharks are still rare 

events even for the LPS, and variances 

can be quite large for these species even 

with a specialized survey. Efforts are 

underway to improve the accuracy and 

precision of recreational fisheries data, 

including estimated catches of rare 

event species, through a new data 

collection initiative called the Marine 

Recreational Information Program 

(MRIP). NMFS believes the data on 

recreational harvest, particularly for 

purposes of SCS species addressed 

under Amendment 3, reflects the best 

scientific information available at this 

time. Therefore, recreation harvest data 

was not changed in the FEIS in response 

to this comment. 

Comment 5: Sharks need to be 

available all year and low quotas lead to 

regulatory discards. Fishermen do not 

need a directed shark permit to sell 

sharks caught in NC waters. 

Response: In Amendment 2 to the 

2006 Consolidated HMS FMP, NMFS 

implemented a trip limit of 33 nonsandbar LCS with the expectation that 

directed shark permit holders would no 

longer target non-sandbar LCS and that 

this reduced trip limit would allow the 

non-sandbar LCS quota to last yearround. However, the 2009 non-sandbar 

fishery opened on January 23rd and 

closed on July 1st in the Atlantic and 

June 6th in the Gulf of Mexico. Because 

the non-sandbar LCS seasons only 

lasted half of the year, NMFS is 

currently looking at data and analyzing 

management measures that would allow 

the fishery to remain open for longer 

periods during the fishing year. 

Adjusting seasons and quotas for nonSCS species is beyond the scope of 

Amendment 3 and the FEIS, therefore, 

NMFS did not propose management 

alternatives in response to this 

comment. 

Many States do not have speciesspecific commercial fishing permits, 

and instead rely on a general 

commercial fishing permit. Fishermen 

who fish in State waters must comply 

with their State’s fishing regulations. 

Fishermen that have a directed or 

incidental Federal shark commercial 

permit must abide by Federal 

regulations and must sell to a Federally 

permitted dealer when fishing in 

Federal or State waters. 

Comment 6: The frequency of shark 

dealer reporting has always needed to 

be more frequent than every two weeks. 

It appears that the NMFS personnel 

have a hard time monitoring the various 

shark landings as a result of waiting too 

long. 

Response: Frequency of shark dealer 

reporting requires a balance of data 

needs and reporting burdens. More 

frequent reporting could result in a 

reduction in data lags; however, it 

would significantly increase the burden 

of shark dealers. To account for 

uncertainties such as data lags, the 

Magnuson-Stevens Act requires AMs in 

each fishery to ensure that ACLs are not 

exceeded. In the shark fisheries, NMFS 

employs an AM whereby the fishery is 

closed when landings reach, or are 

expected to reach, 80 percent. This 

measure has been effective in ensuring 

that data lags do not result in grossly 

exceeding the quota. NMFS provides 

shark landings reports, by complex or 

species, on a monthly basis to ensure 

that participants are aware of catches in 

the shark fishery. NMFS is examining 

changes to the data management 

structure and may move toward more 

real time electronic reporting in the 

future. However, these types of data 

management actions are beyond the 

scope of Amendment 3 and alternatives 

were therefore not proposed in the FEIS 

in response to this comment. 


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Comment 7: A Count, Cap and 

Control system for shark management 

includes the following: Obtaining 

sufficient landings and observer data to 

accurately and precisely monitor catch 

(landings + discards) in the fishery; 

conducting species-specific stock and 

fishery assessments; setting annual 

catch limits to limit all sources of 

fishing mortality; and implementing 

accountability measures to ensure the 

ACLs are respected. Real-time 

management of quotas, time-area 

management measures and bycatch caps 

should be fully explored in this FMP 

amendment. If the agency decides not to 

use in-season AMs, it must fully support 

this decision with a well-defended 

rationale as to why in-season AMs are 

truly impossible, rather than impractical 

or incrementally more difficult to 

administer. The agency should take a 

precautionary approach towards 

administering the remaining quota 

designations for the oceanic whitetip 

and common thresher sharks within the 

pelagic shark species group. There are 

currently no stock assessments for either 

the oceanic whitetip or the common 

thresher sharks. In the past 10 years, the 

North Atlantic population of oceanic 

whitetip sharks has declined by an 

estimated 70 percent. NMFS should 

reassess their management of pelagic 

shark species. It is vital that each 

pelagic shark species caught by U.S. 

fishermen have a species-specific stock 

assessment and a species-specific quota. 

Response: This amendment specifies 

how NMFS plans to implement 

Magnuson-Stevens Act 303(a)(15) 

requirements for ACLs and AMs. 

Chapter 1 of the FEIS details the 

methodology, where the quota is equal 

to the landings component of the 

commercial sector ACL. Additionally, 

AMs already in place in the commercial 

shark fishery will be maintained. These 

AMs include restrictions on how to 

carry over under- and overharvests and 

closing the fishery when landings reach, 

or are expected to reach, 80 percent. 

Changes to how NMFS monitors the 

landings, introducing time/area 

closures, or altering bycatch 

management are not addressed in this 

amendment as they do not support the 

purpose and need of this rulemaking. 

Therefore, management alternatives 

suggested by this comment were not 

included in the FEIS. 

NMFS has not conducted a stock 

assessment for oceanic whitetips. Data 

may be a limiting factor, as there are 

limited landings data for oceanic 

whitetip sharks. NMFS will continue to 

work with international partners and 

ICCAT towards more species-specific 

assessments for pelagic sharks. To date, 

ICCAT has completed assessments for 

blue and shortfin mako sharks. There is 

scant data available on oceanic whitetip 

landings. Again, management of the 

pelagic shark complex other than 

shortfin mako is beyond the scope of 

Amendment 3 and would not meet the 

purpose and need set forth in the FEIS. 

Therefore, additional pelagic shark 

management measures (other than for 

shortfin mako) were not included in the 

FEIS in response to this comment. 

Comment 8: NMFS received several 

comments regarding other shark species 

that require management. Specifically, 

commenters felt that NMFS should 

focus on hammerhead and tiger sharks. 

Response: This amendment, among 

other things, focuses on NMFS’ 

requirement under the MagnusonStevens Act to implement a rebuilding 

plan and ACLs and AMs in the 

blacknose shark fishery since this 

species is overfished and overfishing is 

occurring based on the 2007 SCS stock 

assessment results. NMFS continually 

monitors stocks of all species under its 

jurisdiction and promptly begins the 

rulemaking process should one of these 

stocks be determined to be overfished or 

have overfishing occurring based on the 

results of a stock assessment. The LCS 

complex was assessed in 2006 through 

the SEDAR process, and this assessment 

determined that there was not enough 

information for a tiger shark-specific 

assessment. For this reason, tiger sharks 

have an unknown stock status. NMFS is 

aware of a hammerhead assessment 

published in a peer reviewed journal 

and is reviewing that paper to determine 

its appropriateness for use in making 

stock status determinations and 

implementing management measures. 

Management of hammerhead and tiger 

sharks is beyond the scope of 

Amendment 3 and would not meet the 

purpose and need set forth in the FEIS. 

Therefore, additional management 

measures for these species were not 

included in the FEIS in response to this 

comment. 

Comment 9: If NMFS is conducting a 

stock assessment on sandbar in 2010, 

NMFS should consider the stock north 

of Virginia that usually is not included 

because there is no fishery there. When 

you shut down the commercial sandbar 

shark fishery, you said it was because 

they were overfished but there are 

places you are not assessing. 

Response: NMFS uses the best 

available science and a rigorous SEDAR 

assessment process for all sharks 

species. NMFS held a public data 

workshop for the 2005/2006 LCS stock 

assessment and requested that 

participants submit any relevant data or 

analysis. NMFS included all the 

available data that were presented at the 

data workshop for the LCS stock 

assessment, including fisherydependent and fishery-independent 

data from all regions in the Atlantic, 

Gulf of Mexico and the Caribbean Sea. 

Data inputs for the stock assessment are 

not solely fishery-dependent, therefore, 

geographical limitations of the fishery 

do not skew the stock assessment 

results. Management of sandbar sharks 

is beyond the scope of Amendment 3 

and would not meet the purpose and 

need set forth in the FEIS. Therefore, 

additional management measures for 

these species were not included in the 

FEIS in response to this comment. 

Comment 10: Requiring fins be 

naturally attached does not work for 

SCS. Some dealers are not renewing 

their permits because they are afraid of 

getting in trouble with the requirement. 

Other dealers do not have room to 

process fish on the dock. 

Response: NMFS does not believe that 

the requirement to land sharks with fins 

attached is overly burdensome for the 

following reasons. First, the requirement 

to land sharks with fins attached would 

allow fishermen to leave the fins 

attached by just a small piece of skin so 

that the shark could be packed 

efficiently on ice while at sea. Shark fins 

could then be quickly removed at the 

dock or at the dealer without having to 

thaw the shark. Second, sharks may be 

eviscerated, bled, and the head removed 

from the carcass at sea. These measures 

should prevent excessive amounts of 

waste at the dock, since dressing (except 

removing the fins) the shark may be 

performed while at sea. Third, while 

this requirement would result in some 

change to the way in which fishermen 

process sharks at sea, because the fins 

can be removed quickly once the shark 

has been landed, NMFS expects that the 

dealers will not require significantly 

more room for post-landing processing. 

Fourth, dealers have the option to 

accept or decline certain species, and 

Federal regulations would not eliminate 

that option. For these reasons NMFS did 

not propose an alternative for 

consideration in the FEIS or this final 

rule as a result of this comment. 

Comment 11: What is happening 

regarding the legislation in place to 

allow flexibility in the MagnusonStevens Act and how does that impact 

Amendment 3? 

Response: NMFS is aware of the 

Flexibility in Rebuilding American 

Fisheries Act of 2009 (HR 1584) 

sponsored by Rep. Pallone (NJ). The Act 

would amend the Magnuson-Stevens 

Act and alter the rebuilding deadlines 

currently in place for overfished stocks. 

This legislation, however, has not 


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passed either house of Congress, and 

NMFS is unable to speculate on whether 

or not it will ultimately pass. At this 

time, the Magnuson-Stevens Act, as it 

exists after the 2007 reauthorization, is 

NMFS’ guiding legislation for this 

amendment. 

Comment 12: Is there a possibility of 

changing the SCS fishery start date to 

July 1? 

Response: The SCS fishing year runs 

from January to December. The actual 

fishing season starts when NMFS 

publishes a notice in the Federal 

Register. NMFS could delay the opening 

of the SCS fishing season if data 

indicate that it is appropriate to do so. 

In the proposed 2010 Shark Season Rule 

(October 28, 2009, 74 FR 55526), NMFS 

proposed to delay the opening of the 

2010 SCS shark season until after the 

publication of Amendment 3 to the 2006 

Consolidated HMS FMP. Without a 

delay in the start date, the 2010 SCS 

fishery would open under the current 

quota of 454 metric tons (mt) dressed 

weight (dw) on the effective date of the 

final rule for the 2010 Atlantic shark 

specifications. Amendment 3 proposed, 

among other things, measures to 

significantly reduce the non-blacknose 

SCS and blacknose shark quotas in 

order to rebuild and end overfishing of 

blacknose sharks and also established a 

mechanism for implementing ACLs and 

AMs. A delay would also allow time for 

the establishment of ACLs before the 

start of the 2010 fishing season in 

addition to ensuring the SCS fishery 

opens under the measures that may be 

established in Amendment 3. 

Additional measures to delay the shark 

season opening are not proposed or 

considered in the FEIS as they are 

beyond the scope of Amendment 3 and 

otherwise provided for under existing 

regulation. 

Comment 13: Is NMFS considering 

catch shares for the shark fishery? 

Response: A catch share is the 

allocation of the available fishery quota 

among participants within the fishery. 

Limited access privilege programs 

(LAPPs) are one type of catch share 

program. These programs may be 

implemented to address numerous 

issues, including but not limited to: 

Ending the race for fish, reducing 

overcapitalization, and improving 

efficiency and safety, while still 

addressing the biological needs of a 

stock. These programs can be designed 

to meet the specific needs of a fishery, 

provided they meet the requirements 

outlined in the Magnuson-Stevens Act. 

Catch shares were not considered for the 

shark fishery in Amendment 3 and this 

final rule because of the ramifications 

this type of program would have for the 

existing permit structure and the time 

required for implementing these 

programs. 

To properly design a catch share 

program that appropriately considers 

the views and interests of all 

stakeholders and then implement such 

a system would have taken NMFS 

several years, and therefore, catch 

shares were not considered a reasonable 

alternative for this action given the 

mandate in subsection 304(e) of the 

Magnuson-Stevens Act to rebuild the 

blacknose stock in the shortest time 

possible and the additional requirement 

of paragraph 303(a)(15), as implemented 

by the National Standard 1 Guidelines, 

to have a mechanism for specifying 

ACLs and AMs in place for stocks 

experiencing overfishing by 2010. 

However, NMFS is considering 

revisions to the existing permit structure 

within HMS fisheries. This could 

include a catch share program for sharks 

as well as other HMS as was discussed 

during the September/October 2008 

HMS Advisory Panel. NMFS published 

an ANPR on June 1, 2009 (74 FR 26174), 

to initiate broad public participation in 

considering catch shares for HMS 

fisheries. NMFS is also planning to 

discuss the future of the shark fishery, 

including the possibility of catch shares, 

at the May 2010 HMS Advisory Panel 

meeting in Silver Spring, MD (75 FR 

19369, April 14, 2010). Establishing a 

catch share program is beyond the scope 

of Amendment 3 and this final rule and 

does not meet the purpose and need set 

forth in the FEIS. Catch share options, 

therefore, were not included or 

considered in the FEIS or this final rule. 

Comment 14: Blacknose sharks eat 

newly hatched sea turtles. Your 

proposal to rebuild blacknose sharks 

will impact sea turtle populations. 

Response: NMFS is bound by the 

Magnuson-Stevens Act requirements to 

stop overfishing of blacknose sharks, 

and to rebuild stocks to a nonoverfished status. The Office of 

Sustainable Fisheries works closely 

with the Office of Protected Resources 

to ensure actions in the fishery do not 

jeopardize the continued existence of 

protected resources. 

Comment 15: Commercial fishing for 

all shark species should be done using 

rod and reel only to reduce bycatch. 

Response: Although rod and reel often 

has reduced bycatch of non-target 

species, this gear is not commonly used 

in the commercial fishery to target 

sharks. Gears that are more commonly 

used in shark fisheries, such as gillnets 

and longlines, do have some risk of 

bycatch however there are bycatch 

mitigation measures in place in the 

Atlantic shark fishery that reduce 

interactions and increase post-release 

survival of protected resources. Chapter 

3 of the FEIS details the numerous 

measures in place to minimize bycatch 

in these fisheries. The proposal to 

restrict commercial shark gear to rod 

and reel was not included or evaluated 

in the FEIS or this final rule in response 

to this comment. 

H. Economic Comments 

Comment 1: Fishermen cannot sell 

sharks anymore. Most sharks used to go 

to the Midwest where there was a stable 

market. Those markets needed 6 to 8 

months of lead time, but that market is 

gone now. Dealers will buy some meat 

($0.20/lb) because they can resell it as 

bait. 

Response: Permitted commercial 

shark fishermen are currently allowed 

under the regulations to sell authorized 

shark species to permitted dealers. 

NMFS examined the commercial shark 

fishing revenues over the past eight 

years in Chapter 6 of the DEIS and FEIS. 

Total ex-vessel revenues from small 

coastal shark meat has fluctuated 

between approximately $535,000 and 

$823,000 annually over that period with 

no discernable pattern. 

NMFS provided median real ex-vessel 

prices for shark species groups from 

2004–2007 in the DEIS and FEIS. The 

median ex-vessel price for SCS meat 

from 2004–2007 was $0.66 per pound 

dressed weight. NMFS acknowledges 

there is significant seasonal and regional 

variation in dealer prices. The lowest 

average ex-vessel median average price 

was for smooth dogfish, $0.29 per 

pound dressed weight, which is similar 

to the price the commenter indicated 

dealers are paying. 

Comment 2: Did NMFS look at the 

monetary figures? If you spread the 

small SCS quota across all the permit 

holders, there is not enough quota for 

everyone. 

Response: NMFS examined the per 

vessel impacts of the SCS quotas across 

all permit holders in Chapter 8 of the 

DEIS and FEIS. Based on data from 2004 

to 2007 for directed and incidental 

shark permit holders that landed nonblacknose SCS, the average directed 

shark permit holder earned $9,427 in 

average annual gross revenues, and the 

average incidental shark permit holder 

earned $707 in average annual gross 

revenues from non-blacknose SCS 

landings. For those permit holders that 

actually landed blacknose shark during 

that same time period, the average 

directed shark permit holder earned 

$3,640 in average annual gross 

revenues, and the average incidental 

shark permit holder earned $1,722 in 


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average annual gross revenues from 

blacknose shark landings. 

NMFS acknowledges that the 

availability of SCS quota proposed in 

the DEIS would be limited if spread 

across all permit holders. As described 

in the responses above, NMFS made 

changes to the SCS quotas based, in 

part, on the comments received. The 

preferred alternative in the FEIS and 

this final rule for small coastal sharks is 

now 221.6 mt versus the 56.9 mt 

preferred under the DEIS. The preferred 

alternative for blacknose shark quota 

was raised from 14.9 mt under the DEIS 

to 19.9 mt in the FEIS and this final 

rule. 

Comment 3: Multispecies fishermen 

need every species they can catch. The 

economic impacts on these multispecies 

fishermen were not considered. 

Response: NMFS examined the 

cumulative economic impacts of the 

proposed rule in Chapter 4 of the DEIS 

and FEIS. 

Comment 4: The fins attached rule 

decreased effort on SCS because it is too 

much work processing the sharks twice 

in hot weather. Prices are lower for SCS 

because requiring fins remain attached 

to the carcass decreased the quality due 

to increased processing time. 

Response: NMFS acknowledges that 

requiring fins remain attached to the 

carcass could decrease the quality of the 

product due to increased processing 

time. However, as described above, 

NMFS does not believe the requirement 

is overly burdensome. Additionally, 

other factors, such as market demand 

and decreased supplies, might also 

affect prices. NMFS will examine the 

impacts that leaving fins on sharks is 

having on prices for SCS as information 

becomes available. 

Comment 5: Shortfin mako sharks are 

a significant secondary bycatch for the 

U.S. pelagic longline fishing fleets from 

Maine to Texas. Like most sharks this is 

a shared resource with other countries. 

NMFS is unilaterally proposing to hurt 

U.S. fishermen first with economic 

impacts. 

Response: NMFS acknowledges that 

shortfin mako shark is often a bycatch 

species in other fisheries in the United 

States. The alternatives selected for the 

commercial shortfin mako shark fishery 

will not change the current retention 

limits for U.S. fishermen at this time. 

NMFS will promote the live release of 

shortfin mako sharks, but will not make 

it mandatory for the fishery. NMFS has 

decided to take action at the 

international level to end overfishing of 

shortfin mako sharks through 

participation in international fisheries 

organizations such as ICCAT. While 

these approaches could impact U.S. 

fishermen economically before it 

impacts fishermen in other countries, 

neither of these measures are expected 

to have a significant economic impact 

on U.S. commercial fishermen. 

Comment 6: The preferred alternative 

that would eliminate the recreational 

fishery is, in fact, an allocation decision 

that gives 100 percent of the blacknose 

shark TAC to the commercial sector. 

There are no analyses of the economic 

benefits to the nation associated with 

this allocation. Such an economic 

analysis is required. 

Response: Blacknose sharks rarely 

reach a size greater than the current 

Federal minimum size; therefore, the 

current 54 inch FL size limit creates a 

de facto retention prohibition of 

blacknose sharks in Federal waters. As 

discussed in the DEIS and FEIS, NMFS 

determined that prohibiting the 

retention of blacknose sharks in the 

recreational fishery under alternative D4 

could have some negative social and 

economic impacts on recreational 

fishermen, including tournaments and 

charter/headboats, if the prohibition of 

blacknose sharks resulted in fewer 

charters. However, since blacknose 

sharks are not one of the primary 

species targeted by recreational anglers, 

in tournaments or on charters and they 

rarely reach a size greater than the 

current Federal minimum size, NMFS 

estimates limited negative social and 

economic impacts from alternative D4 

on recreational anglers, tournaments, or 

in the charter/headboat sector. 

In the FEIS, alternative D1 was the 

preferred alternative because the effect 

is the same as prohibiting the retention 

of blacknose sharks, thereby 

contributing to the rebuilding of the 

species. As described above, NMFS 

received comments from States 

describing their own management in 

State waters. Thus, NMFS chose to 

prefer and select this alternative rather 

than the previously preferred alterative, 

alternative D4. 

Comment 7: A few commenters, 

including the State of Virginia, noted 

that there is no indication that finning 

has been, is, or is likely to become a 

problem in the smooth dogfish fishery 

because of the economics of the fishery. 

The State of Virginia notes that the 

smooth dogfish fishery subsists as a 

high volume and labor intensive 

endeavor, as a typical whole round 

weight of 1,000 pounds contains 200 to 

250 individual dogfish. In a typical 

processed catch of smooth dogfish, the 

dockside value of the fins represents 20 

to 30 percent of the price paid to 

fishermen for their total catch, and 

fishermen return dockside with meat 

and fins in separate containers. Delaying 

the removal of fins and tail until landing 

would result in decreased marketability. 

Smooth dogfish are harder than other 

species to extract from the net, butcher 

and clean, with the result that labor 

costs represent a higher percentage of 

the total value of the product. Cutting 

fins at sea is important practically to the 

fishery in order to maintain proper 

product freshness. In the absence of 

processing, there would be a loss of 

profitability to the industry because of 

the increased labor with re-handling 

each carcass. 

Response: NMFS agrees that 

processing smooth dogfish is likely a 

labor intensive operation. While the 

delay in the removal of fins and tails 

until landing could reduce the quality 

and marketability of smooth dogfish, it 

is unclear whether any decreases in exvessel prices would exceed potential 

cost savings from reduced labor needs at 

sea associated with finning on the 

vessel. There would potentially be an 

increase in operating costs for dealers if 

they end up processing the fins from the 

smooth dogfish carcasses. 

Comment 8: If NMFS set the smooth 

dogfish quota at 1,423,728 lb dw, we 

may not reach it very often but there 

would be years when we do. The 

pricing is dependent on the 

international market (years when the 

price is high, the quota will go fast). 

Response: The proposed smooth 

dogfish quota was selected in order to 

accommodate average fishing levels. 

The 1,423,728 lb dw quota is equal to 

the maximum annual landings between 

1998–2007 plus one standard deviation. 

NMFS acknowledges that in rare years, 

this quota might constrain the fishery. 

In part to address this issue, NMFS 

added an additional alternative to the 

FEIS where the smooth dogfish quota 

would be set equal to the maximum 

annual landings from 1998–2007 plus 

two standard deviations (1,577,319 lb 

dw). This new preferred alternative, 

which was selected by NMFS, should 

accommodate the potential few years 

were the smooth dogfish quota may 

exceed 1,423,728 lb dw. 

NMFS is also aware that international 

markets may impact the pricing of 

domestic smooth dogfish. However, 

NMFS does not currently have sufficient 

data on the fishery to model the degree 

to which high international prices may 

increase domestic landings of smooth 

dogfish. 

Comment 9: There is little or no fin 

value for smooth dogfish. 

Response: The median ex-vessel price 

for smooth dogfish fins was estimated to 

be $2.02 per pound between 2004 and 

2007. Based on ACCSP data from 1998– 

2007, in the commercial fishery an 


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average of 1,321,695 lb ww of smooth 

dogfish were retained per year. Of this 

total, NMFS estimates 47,543 lb of fins 

would be available for sale per year. 

Using the median ex-vessel price of 

these products between 2004 and 2007 

($2.02 for smooth dogfish fins), the 

fishery averaged $96,037 in value per 

year. 

Changes From the Proposed Rule (74 

FR 36892, July 24, 2009) 

NMFS has made several 

administrative changes in the final rule. 

In addition, responding to comments 

from the public and others on the 

proposed rule, NMFS has made several 

substantive changes in the final rule 

consistent with changes made between 

the DEIS and Draft Amendment 3 and 

the final version of those documents. 

These changes are outlined below. 

1. Gillnet gear. In the proposed rule, 

NMFS proposed to remove the 

authorization to use gillnet gear south of 

North Carolina. Due, in part, to public 

comments, NMFS is maintaining the 

current authorizations for gillnet gear, in 

the final rule. As such, all references to 

removal of gillnet gear have been 

removed and the current requirements 

remain. Additionally, as was proposed, 

NMFS is removing § 635.5(a)(4), which 

required shark gillnet vessels to contact 

NOAA Fisheries if a whale is taken. 

While NMFS proposed to remove this 

paragraph partly due to the proposed 

removal of the authorization of gillnet 

gear, in this final rule NMFS removes 

this paragraph because it is redundant 

to a reporting requirement under section 

229 under the Marine Mammal 

Protection Act. NMFS is maintaining 

the requirement that shark gillnet 

vessels that take a whale must stop 

fishing immediately (previously 

§ 635.21(e)(3)(v)). 

2. Smoothhound sharks. For various 

reasons, as described in Amendment 3 

and above, NMFS is delaying the 

implementation of the final actions for 

smooth dogfish until the start of the 

2012 fishing season. As a result, many 

of the sections of the regulations were 

re-ordered and, in some cases, reworded to ensure that requirements for 

smooth dogfish were separate 

paragraphs at the end of each section. 

Additionally, to reduce confusion with 

the spiny dogfish regulations and to 

more accurately describe both smooth 

dogfish and Florida smoothhound 

sharks, the final regulations changes the 

name of the complex containing these 

two species, and any references to this 

complex, to ‘‘smoothhound sharks’’ from 

‘‘other sharks.’’ 

3. Trawl gear. Additional analyses 

since the DEIS show that fishermen 

using trawl gear interact with and land 

smooth dogfish incidental to other 

species. As such, NMFS intends to 

allow fishermen using trawl gear to land 

smoothhound sharks incidentally. 

However, NMFS is still considering the 

most appropriate way to allow for this 

activity and will finalize a decision on 

this issue in a separate action. 

4. § 635.22(c). Due, in part, to public 

comment, NMFS will no longer prohibit 

the retention of blacknose sharks by 

recreational fishermen. As a result, 

blacknose sharks continue to be on the 

list of species that may be retained by 

anglers. The current minimum size and 

bag limits will still apply. 

5. § 635.27(b)(1). As a result of public 

comment and additional analyses, 

NMFS modified the final quotas and 

retention limits for non-blacknose SCS, 

blacknose sharks, and smooth dogfish 

sharks. These modifications are 

reflected in this section. 

Commercial Fishing Season 

Notification 

Pursuant to the measures being 

implemented in this final rule, the 

blacknose shark baseline quota is 19.9 

mt dw and the non-blacknose SCS 

baseline quota is 221.6 mt dw. As of 

March 31, 2010, less than 0.1 mt dw of 

SCS have been reported to NMFS (105 

lb dw of blacknose and 56 lb dw of nonblacknose SCS). Given these low levels 

of landings, the baseline quotas for 2010 

have not been adjusted. Rather, these 

landings, along with any additional 

landings that occur before the opening 

of the fishing season, will be counted 

against the quota during the 2010 

fishing year. As such, the 2010 

blacknose shark quota is 19.9 mt dw and 

the 2010 non-blacknose SCS quota is 

221.6 mt dw. 

The 2010 Atlantic commercial shark 

fishing season for non-blacknose SCS 

and blacknose in the northwestern 

Atlantic Ocean, including the Gulf of 

Mexico and the Caribbean Sea, will 

open on June 1, 2010. 

The non-blacknose SCS and 

blacknose fisheries will remain open 

until December 31, 2010, unless NMFS 

determines that the fishing season 

landings of non-blacknose SCS or 

blacknose sharks has reached, or is 

projected to reach, 80 percent of the 

available quota. If that occurs, 

consistent with 50 CFR 635.28(b), 

NMFS will file for publication with the 

Office of the Federal Register a notice of 

closure for both non-blacknose SCS and 

blacknose sharks that will be effective 

no fewer than 5 days from date of filing. 

From the effective date and time of the 

closure until NMFS announces, via a 

notice in the Federal Register, that 

additional quota, if any, is available, the 

blacknose and non-blacknose SCS 

fisheries will remain closed, even across 

fishing years, consistent with 50 CFR 

635.28(b). 

Classification 

The Assistant Administrator for 

Fisheries determined that the 

Amendment 3 to the Consolidated HMS 

FMP is necessary for the conservation 

and management of the Atlantic HMS 

shark fishery and that it is consistent 

with the Magnuson-Stevens Fishery 

Conservation and Management Act and 

other applicable laws. 

NMFS prepared an FEIS for this FMP 

amendment. The FEIS was filed with 

the Environmental Protection Agency 

on March 12, 2010. A notice of 

availability was published on March 19, 

2010 (75 FR 13275). In approving the 

FMP amendment on May 18, 2010, 

NMFS issued a Record of Decision 

(ROD) identifying the selected 

alternatives. A copy of the ROD is 

available from NMFS (see ADDRESSES). 

This final rule has been determined to 

be not significant under EO 12866. 

Pursuant to 5 U.S.C. 553(d)(3), the 

Assistant Administrator waives the 30- 

day delayed effectiveness for this action 

as several measures in this final action 

relieve restrictions. The waiver of the 

30-day delay would only apply to the 

opening of the blacknose and nonblacknose SCS fisheries and the 

associated commercial quotas (sections 

635.27(b)(1)(i)–(v) and 635.28(b). All 

other measures in this final action 

would go into effect at least 30 days 

after publication of the final rule in the 

Federal Register. The smoothhound 

shark measures in this action will not be 

effective until the start of the fishing 

season in the 2012. 

The small coastal shark fishery closed 

on December 31, 2009, and, under 

normal circumstances, would have 

opened for the 2010 fishing year upon 

the effectiveness of the final rule for the 

2010 Atlantic shark season 

specifications (75 FR 250, January 5, 

2010). However, due to the anticipation 

of measures in this final rule, 

particularly those measures that change 

the SCS quotas and implement a 

rebuilding plan for blacknose sharks, 

NMFS made the decision in the 2010 

Atlantic shark season specifications to 

keep the 2010 SCS fishing season closed 

until the effective date of this final rule. 

The current closure of the SCS fisheries 

is occurring during the time period 

when SCS fishermen typically fish for 

SCS species, and therefore, fishermen 

are experiencing negative economic 

impacts that will continue until the 

fishery opens. This final action would 


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relieve a restriction by allowing SCS 

fishermen to fish for blacknose sharks 

and non-blacknose SCS under the new 

commercial quotas, providing economic 

benefits to fishermen, dealers and others 

that rely on SCS products. 

Paperwork Reduction Act 

This final rule will require 

commercial and recreational fishermen 

fishing for smooth dogfish to obtain a 

smoothhound permit authorizing 

landings of smooth dogfish. This 

requirement is considered a collectionof-information requirement and is 

subject to review and approval by OMB 

under the PRA. NMFS has not yet 

submitted an application for this 

collection-of-information to OMB for 

approval. The implementation of this 

requirement is delayed pending 

approval. Once the application is 

submitted, comments regarding the 

public burden estimates or any other 

aspect of this data collection, including 

suggestions for reducing the burden, 

should be sent to NMFS (see ADDRESSES) 

and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

Coastal Zone Management Act 

The Coastal Zone Management Act 

(CZMA) requires that Federal agency 

activities be consistent to the maximum 

extent practicable with the enforceable 

policies of Federally-approved State 

coastal management programs (CMPs). 

NMFS has determined that the final and 

selected alternatives in this final rule 

and Amendment 3 will be implemented 

in a manner consistent to the maximum 

extent practicable with the enforceable 

policies of the coastal States in the 

Atlantic, Gulf of Mexico, and Caribbean 

that have Federally approved CMPs. In 

July 2009, NMFS provided all coastal 

States along the eastern seaboard and 

the Gulf of Mexico (21 States), including 

Puerto Rico and the U.S. Virgin Islands 

with a copy of the proposed rule and 

draft EIS for Amendment 3 to the 

Consolidated HMS FMP. Under 15 CFR 

930.41, States and/or U.S. territories 

have 60 days to respond after the receipt 

of the consistency determination and 

supporting materials. States can request 

an extension of up to 15 days. If a 

response is not received within those 

time limits, NMFS can presume 

concurrence (15 CFR 930.41(a)). Seven 

States replied within the response time 

period that the proposed regulations 

were consistent, to the extent 

practicable, with the enforceable 

policies of their CMPs (Connecticut, 

New Jersey, Pennsylvania, Delaware, 

Virginia, Mississippi, and Puerto Rico). 

Another ten States (Maine, New 

Hampshire, Rhode Island, 

Massachusetts, New York, Maryland, 

South Carolina, Alabama, Louisiana, 

and the U.S. Virgin Islands) did not 

respond within the response time 

period, nor did they request an 

extension in the comment period; 

therefore, NMFS presumes their 

concurrence. The State of Florida, the 

State of Georgia, and the State of North 

Carolina replied that the proposed rule 

was not consistent with the enforceable 

policies of their respective State’s 

coastal zone management program. 

A. Response to the State of Florida 

The State of Florida in an October 9, 

2009, letter stated that the recreational 

SCS preferred alternative in the DEIS, 

Alternative D4, was not consistent with 

the State’s enforceable policies because 

the State already has in place adequate 

protection of blacknose sharks in State 

waters. As described above, based on 

public comment and because the No 

Action alternative is effectively the 

same as a prohibition of blacknose 

sharks due to the current 54 inch size 

limit in the recreational fishery, NMFS 

no longer prefers alternative D4 in the 

FEIS. The preferred alternative in the 

FEIS and this final rule is D1, the status 

quo alternative. The letter from the State 

of Florida noted that if NMFS changed 

the preferred alternative to D1, 

Amendment 3 would be consistent with 

the State’s CMP. Therefore, NMFS 

considers the actions in the FEIS to be 

consistent with the State of Florida’s 

CMP. 

B. Response to the State of Georgia 

In a September 10, 2009, letter, the 

State of Georgia stated that Georgia 

Department of Natural Resources 

(GDNR) had determined that the 

provisions in the draft Amendment 3 to 

the Consolidated HMS FMP 

(Amendment 3) are conditionally 

consistent with the Georgia Coastal 

Management Program (GCMP) to the 

maximum extent practicable. This 

determination is conditional upon the 

preferred alternatives included in the 

FEIS for Amendment 3. To be consistent 

with the GCMP, the letter maintains that 

the preferred alternatives must include: 

A4 and B3 (reduced blacknose shark 

quota and a prohibition on gillnets in 

the southern shark fishery); C5, C6, E3, 

and E4 (international shortfin mako 

shark management measures and 

encouraging the live release of shortfin 

mako sharks); D1 (the No Action 

alternative with respect to the 

recreational blacknose shark fishery); 

and F2 (bring smooth dogfish under 

Federal management). Thus, with the 

exception of alternatives A4 and B3, all 

of the final action in the FEIS of 

Amendment 3 and this final rule are 

supported by GDNR. 

As detailed in Chapters 2 and 4 of the 

FEIS for Amendment 3, NMFS altered 

the preferred alternative in the FEIS and 

this final rule to maintain the current 

blacknose shark recreational size and 

retention limits (D1) and to allow gillnet 

gear in all areas of the Atlantic shark 

fishery. Based upon public comment, 

revised SEFSC blacknose shark weight 

data, observer data, and additional 

gillnet selectivity analyses, NMFS 

changed the preferred alternatives in the 

FEIS to include A6 and B1 rather than 

A4 and B3. These two preferred 

alternatives will establish the blacknose 

shark quota at 19.9 mt dw, maintain a 

non-blacknose SCS quota at average 

current landings, and continue to 

authorize gillnet gear in the southern 

shark fishery. Due to the change of the 

commercial gear preferred alternative, 

the State of Georgia objects to the 

consistency determination because of 

the continuing operation of the shark 

gillnet fishery in Federal waters, which 

could potentially impact resources 

shared by adjacent State waters. 

Additionally, the State of Georgia has 

concerns regarding the impact of the 

shark gillnet fishery on threatened and 

endangered species. The data currently 

available for the shark gillnet fishery 

indicate low rates of bycatch and 

bycatch mortality of protected species 

and other finfish in this fishery 

compared to other HMS fisheries (see 

Chapter 3 the FEIS). 

While NMFS acknowledges the 

concern of protected resources 

interactions with gillnet gear, under the 

Magnuson-Stevens Fishery 

Conservation and Management Act’s (16 

U.S.C. 1801 et seq.) National Standards 

(NS), the Agency must, among other 

things, implement conservation and 

management measures to prevent 

overfishing while achieving, on a 

continuing basis, the optimum yield 

from each fishery; base its actions upon 

the best scientific information available; 

manage stocks throughout their range to 

the extent practicable; minimize adverse 

economic impacts on fishing 

communities to the extent practicable; 

and minimize bycatch and bycatch 

mortality to the extent practicable. 16 

U.S.C. 1851(a)(1), (2), (3), (8), and (9). In 

the preparation of the FEIS, NMFS 


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performed an analysis on the SCS 

gillnet fishery using updated average 

blacknose shark weights from the 

SEFSC and observer data. This analysis 

concluded that SCS gillnet fishermen 

were able to selectively target certain 

SCS species while avoiding blacknose 

sharks. Furthermore, when the shark 

gillnet fishery catches blacknose sharks, 

they are usually larger, more mature 

individuals than those caught in other 

gears. These two findings, in concert, 

make for less significant ecological 

benefits of prohibiting gillnets than 

previously believed. The significant 

adverse economic and social impacts 

resulting from a geographical ban on 

gillnets in the shark fishery outweigh 

the ecological benefits to blacknose 

sharks. Therefore, NMFS is not 

prohibiting the use of gillnet gear at this 

time. This finding is consistent with NS 

2 which requires that management 

measures be based on the best scientific 

information available including the 

BiOp. Based on this information and 

combined with the Magnuson-Stevens 

Act legal requirements noted in this 

paragraph, under the CZMA and NOAA 

regulations, NMFS is consistent to the 

maximum extent practicable with 

Georgia’s CMP enforceable policies. 

On May 5, 2008, NMFS’ Southeast 

Regional Office of Protected Resources 

Division completed a BiOp regarding 

the actions under Amendment 2 to the 

Consolidated HMS FMP. The BiOp, 

concluded that the continued 

authorization of the gillnet fishery was 

likely to adversely affect, but not likely 

to jeopardize the continued existence of, 

green, Kemp’s ridley, leatherback, and 

loggerhead sea turtles and smalltooth 

sawfish. The opinion also concluded 

that marine mammals, the Gulf of Maine 

Atlantic salmon Distinct Population 

Segment (DPS), shortnose sturgeon, Gulf 

sturgeon, and right whale critical habitat 

were not likely to be adversely affected 

by the action. The Atlantic shark fishery 

continues to be in compliance with the 

terms and conditions of the ITS in the 

2008 BiOp. The SCS measures in 

Amendment 3 are expected to reduce 

fishing effort and reduce the fishery’s 

impact on ESA-listed species in the 

action area. 

Currently, all shark gillnet vessels are 

required to carry a vessel monitoring 

system (VMS) and are subject to 

observer coverage during and outside of 

the right whale calving season. In 

addition, more stringent management 

measures were put in place under a 

final rule for the Atlantic Large Whale 

Take Reduction Plan (ALWTRP) (72 FR 

34632, June 25, 2007) that prohibits all 

gillnet fishing from November 15 

through April 15 of each year in Federal 

waters off Georgia. NMFS will continue 

to work with existing take reduction 

teams and relevant Fishery Management 

Councils to examine methods of 

reducing bycatch. Thus, NMFS finds 

that the final regulations implemented 

in this amendment are consistent with 

Georgia’s CMP to the maximum extent 

practicable. 

At this time, there is not sufficient 

information to support a closure of the 

shark gillnet fishery in Federal waters 

adjacent to Georgia, pursuant to the 

CZMA. This decision is consistent with 

NS 2 of the Magnuson-Stevens Act (16 

U.S.C. 1801 et seq.), which requires that 

management measures be based on the 

best scientific information available 

including the BiOp. NMFS has 

determined that the final actions in 

Amendment 3 and its implementing 

rule are consistent to the maximum 

extent practicable with the enforceable 

policies of the GCMP. 

C. Response to the State of North 

Carolina 

The State of North Carolina in a 

September 15, 2009, letter stated that 

the provisions in Amendment 3 will 

only be consistent with the State’s 

enforceable policies if NMFS selects 

alternatives A2 and F1 in the DEIS as 

the preferred alternatives in the FEIS. 

The State of North Carolina determined 

that any alternative other than A2 in the 

DEIS would disproportionately impact 

the State by removing fair and equitable 

distribution of SCS quota. As detailed in 

Chapter 2 of the FEIS, NMFS has 

changed the preferred alternative in the 

FEIS to allow for a restricted blacknose 

quota, but a higher non-blacknose SCS 

quota that is equal to the average annual 

landings of the non-blacknose SCS. The 

preferred alternative in this FEIS, 

alternative A6, includes a higher 

blacknose shark quota (19.9 mt dw) than 

that favored by the State of North 

Carolina (13.5 mt dw). The nonblacknose shark SCS quota in 

alternative A6 (221.6 mt dw) is not as 

high as that favored by the State of 

North Carolina (392.5 mt dw) but it is 

equal to the average annual landings 

and should not change the distribution 

of SCS quota. 

In the preparation of the FEIS for 

Amendment 3, NMFS performed an 

analysis on the SCS gillnet fishery using 

updated average blacknose shark 

weights from the SEFSC and observer 

data. This analysis concluded that SCS 

gillnet fishermen were able to 

selectively target certain SCS species 

while avoiding blacknose sharks. 

Furthermore, when the shark gillnet 

fishery catches blacknose sharks, they 

are usually larger, more mature 

individuals than those caught in other 

gears. These two findings, in concert, 

make for less significant ecological 

benefits of prohibiting gillnets than 

previously believed. The significant 

negative economic and social impacts 

resulting from a geographical ban on 

gillnets in the shark fishery outweigh 

the ecological benefits to blacknose 

sharks. For these reasons, NMFS is not 

prohibiting the use of gillnet gear at this 

time. This finding is consistent with NS 

2 which requires that management 

measures be based on the best scientific 

information available including the 

BiOp. Therefore, NMFS believes the 

preferred alternative in the FEIS is 

consistent with the State of North 

Carolina’s CMP policies based on the 

higher non-blacknose SCS quota. 

The State of North Carolina also 

determined that the smooth dogfish 

preferred alternative, Alternative F2, 

was inconsistent with the State’s 

enforceable policies. The State’s letter 

maintained that any alternative other 

than F1 would be inconsistent because 

the implementing measures would be 

contrary to the measures in State waters 

and ASMFC smooth dogfish measures, 

particularly in a fishery that primarily 

occurs in State waters. Based upon a 

July 6, 2009, memo to the ASMFC, data 

from North Carolina’s Trip Ticket 

program shows that the smooth dogfish 

fishery is almost equally divided 

between State and Federal waters off the 

North Carolina coast with 46 percent of 

the catch occurring in Federal waters. 

NMFS recognizes that some of the 

smooth dogfish measures included in 

the FEIS are inconsistent with the 

ASMFC plan. However, NMFS decided 

not to mirror the ASMFC smooth 

dogfish measures because the ASMFC 

plan contains some provisions that 

NMFS cannot implement and does not 

include others that NMFS must 

implement. 

On May 6, 2009, the ASMFC 

approved a smooth dogfish Addendum 

to the Atlantic Coastal Sharks FMP for 

public comment. Included within this 

Addendum is an exception for smooth 

dogfish to allow at-sea processing (i.e., 

removal of shark fins while still onboard 

a fishing vessel), removal of recreational 

retention limits for smooth dogfish, and 

removal of the two hour net-check 

requirement for shark gillnets. The atsea processing would require a fivepercent fin to carcass ratio but would 

allow for the removal of fins at sea. The 

allowance for the removal of shark fins 

while still on board a fishing vessel and 

the removal of the two hour net-check 

requirement is inconsistent with current 

Federal regulations. NMFS considers 

the requirement to maintain shark fins 


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naturally attached through offloading to 

be necessary for species identification 

and to prevent shark finning. NMFS 

recently implemented the fins naturally 

attached regulation for all Atlantic 

sharks for enforcement and species 

identification reasons and would not 

want to open a loophole that would 

hinder enforcement. ASMFC has not 

established a quota for the smooth 

dogfish fishery and, as noted above, 

NMFS is required to establish ACLs and 

AMs under the Magnuson-Stevens 

Fishery Conservation and Management 

Act. In addition, ASMFC has not 

established a permitting requirement. 

NMFS believes that permitting is the 

first step to gaining information about 

the fishery and quantifying the universe 

of participants. Nonetheless, NMFS will 

continue to work with ASMFC to ensure 

Federal and State regulations are 

consistent to the extent practicable. 

Based on NMFS’ existing legal 

requirements, NMFS is consistent with 

NC CMP enforceable policies to the 

maximum extent practicable. 

During the DEIS public comment 

period, the smooth dogfish fishery 

participants noted significant concern 

regarding the fins attached requirement. 

NMFS believes that requiring that fins 

remain attached to the carcass is an 

important component of shark 

management. However, in order to 

mitigate potential impacts to the smooth 

dogfish fishery participants, NMFS is 

delaying implementation of the 

management measures in the preferred 

alternative until the beginning of the 

fishing season in 2012. The delayed 

implementation will allow NMFS time 

to continue outreach efforts with fishery 

participants and work with ASMFC to 

ensure that Federal and State 

regulations are consistent to the extent 

practicable. 

For these reasons, NMFS finds the 

preferred alternatives in the FEIS, 

alternatives A6 and F2, to be consistent 

to the maximum extent practicable with 

the enforceable policies of the State of 

North Carolina’s CMP. 

Biological Opinion for Smooth Dogfish 

The NMFS Southeast Regional Office 

Protected Resources Division (SERO 

PRD) has initially determined that 

management of smooth dogfish may 

adversely affect ESA-listed species 

including but not limited to endangered 

marine mammals such as the blue 

whale, fin whale, humpback whale, 

northern right whale, sei whale, and 

sperm whale; endangered sea turtles 

such as Hawksbill, Kemp’s ridley, and 

leatherback; threatened sea turtles such 

as loggerhead and olive ridley; the 

endangered and threatened green sea 

turtle; and the endangered smalltooth 

sawfish. Based on this determination, 

NMFS initiated formal Section 7 

consultation in accordance with the 

ESA, paragraph 7(a)(2), and provided 

SERO PRD with the information 

required by 50 CFR 402.14(c). As such, 

NMFS is currently engaged in formal 

consultation under the ESA with SERO 

PRD to determine the potential level of 

incremental effect that may arise as a 

result of the preferred management 

measures for smooth dogfish in this 

final rule. SERO PRD has not yet issued 

a final BiOp for the smooth dogfish 

fishery. NMFS will review that BiOp 

once it is issued and supplement the 

analysis in the FEIS if the consultation 

reveals any new or significant effects 

with respect to the interaction between 

gillnet fishing for smooth dogfish and 

protected species that were not 

considered in the 2008 BiOp for 

Amendment 2 to the 2006 Consolidated 

HMS FMP. This final rule incorporates 

by reference the 2008 BiOp for 

Amendment 2 to the 2006 Consolidated 

HMS FMP. A detailed discussion of the 

effects of such management relevant to 

the shark fishery is included in that 

document. NMFS will not take any 

management action with respect to the 

smooth dogfish fishery prior to its 

receipt of a final BiOp. It will maintain 

the status quo for management of the 

species prior to completion of formal 

Section 7 consultation and receipt of a 

final BiOp. 

Summary of the Final Regulatory 

Flexibility Analysis 

A final regulatory flexibility analysis 

(FRFA) was prepared for this rule. The 

FRFA incorporates the Initial Regulatory 

Flexibility Analysis (IRFA), a summary 

of the significant issues raised by the 

public comments in response to the 

IRFA, and NMFS responses to those 

comments, and a summary of the 

analyses completed to support the 

action. The full FRFA is available from 

NMFS (see ADDRESSES). A summary is 

provided below. 

A. Statement of the Need for and 

Objectives of the Final Rule 

Section 604(a)(1) of the Regulatory 

Flexibility Act (RFA) requires a succinct 

statement of the need for and objectives 

of the rule. Chapter 1 of the FEIS fully 

describes the need for and objectives of 

this final rule. In brief, the management 

goals and objectives of the preferred 

management measures are to provide for 

the sustainable management of shark 

species under authority of the Secretary 

consistent with the requirements of the 

Magnuson-Stevens Act and other 

statutes which may apply to such 

management, including the ESA and 

MMPA. The primary mandate of the 

Magnuson-Stevens Act is for the 

Secretary to provide for the 

conservation and management of 

Atlantic HMS through development of 

an FMP for species identified for 

management and to implement the FMP 

with necessary regulations. In addition, 

the Magnuson-Stevens Act directs the 

Secretary, in managing HMS to prevent 

overfishing of species while providing 

for their OY on a continuing basis and 

to rebuild fish stocks that are considered 

overfished. The management objectives 

of the preferred management measures 

are to amend the 2006 Consolidated 

HMS FMP to ensure that overfishing of 

both the blacknose shark and shortfin 

mako is ended, the blacknose shark 

stock is rebuilt, and smooth dogfish is 

brought under the management 

jurisdiction of the Secretary. 

B. A Summary of Significant Issues 

Raised by the Public Comments in 

Response to the IRFA 

Section 604(a)(2) of the RFA requires 

a summary of the significant issues 

raised by the public comments in 

response to the IRFA, a summary of the 

assessment of the Agency of such issues, 

and a statement of any changes made in 

the rule as a result of such comments. 

NMFS received many comments on the 

proposed rule and draft Amendment 3 

during the public comment period. A 

summary of these comments and the 

Agency’s responses, including changes 

as a result of public comment, are 

included above. For general economic 

comments, see section H in ‘‘Responses 

to Comments.’’ NMFS did not receive 

comments specifically on the IRFA. 

C. A Description and an Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply 

Section 604(a)(3) of the RFA requires 

a description and estimate of the 

number of small entities to which the 

final rule would apply. NMFS considers 

all HMS permit holders to be small 

entities because they either had average 

annual receipts less than $4.0 million 

for fish-harvesting, average annual 

receipts less than $6.5 million for 

charter/party vessels, 100 or fewer 

employees for wholesale dealers, or 500 

or fewer employees for seafood 

processors. These are the Small 

Business Administration (SBA) size 

standards for defining a small versus 

large business entity in this industry. 

The preferred management measures 

would apply to the 502 commercial 

shark permit holders in the Atlantic 

shark fishery based on an analysis of 

permit holders on March 18, 2009. Of 


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these permit holders, 223 have directed 

shark permits and 279 hold incidental 

shark permits. Not all permit holders are 

active in the fishery in any given year. 

NMFS estimates that between 2004 and 

2007, approximately 85 vessels with 

directed shark permits and 31 vessels 

with incidental shark permits landed 

SCS. A further breakdown of these 

permit holders is provided in 

Amendment 3. 

The recreational measures proposed 

would also impact HMS Angling 

category and HMS Charter/Headboat 

category permit holders. In general, the 

HMS Charter/Headboat category permit 

holders can be regarded as small 

businesses, while HMS Angling 

category permits are typically obtained 

by individuals who are not considered 

small entities for purposes of the RFA. 

In 2008, 4,837 vessels obtained HMS 

Charter/Headboat category permits. 

Table 3.27 of Amendment 3 provides 

the geographic distribution of these 

permit holders by State and the overall 

historic trend in the number of permit 

holders since 2006. It is unknown what 

portion of these permit holders actively 

participate in shark fishing or market 

shark fishing services for recreational 

anglers. 

Finally, the final action to add smooth 

dogfish under NMFS management and 

develop management measures, such as 

a Federal permit requirement, would 

impact an additional group of small 

entities. The number of entities 

impacted by this final action cannot be 

precisely measured at this time, since 

there is currently no Federal permit 

requirement for smooth dogfish fishing. 

Utilizing VTR and Coastal Logbook data, 

an estimate of the number of 

participants in the commercial smooth 

dogfish fishery can be calculated. 

Within the VTR data, a primarily 

Northeast U.S. reporting system, an 

average of 213 vessels reported smooth 

dogfish landings per year between 2004 

and 2007. Within the Coastal Logbooks 

data, a primarily Southeast U.S. 

reporting system, an average of 10 

vessels reported smooth dogfish 

landings per year between 2004 and 

2007. From these data, an estimated 223 

commercial vessels would require a 

smooth dogfish permit. 

To estimate the number of 

recreational participants in the smooth 

dogfish fishery, NMFS examined 

MRFSS data. Based on MRFSS data 

from 2004 to 2007, an average of 58,161 

smooth dogfish were retained per year 

by private anglers and charter/headboats 

(CHBs) in the recreational fishery. This 

number is the upper limit of 

participants in the Federal recreational 

fishery of the species, and is likely 

much lower since multiple individual 

fish are expected to have been caught by 

one fisherman. Furthermore, based on 

the life history of the species and the 

fact the most recreational fisherman are 

shore-based, the vast majority of smooth 

dogfish caught recreationally are in 

coastal, State waters and would not 

require a Federal HMS angling permit. 

NMFS has determined that the final 

rule would not likely affect any small 

governmental jurisdictions. More 

information regarding the description of 

the fisheries affected, and the categories 

and number of permit holders can be 

found in Amendment 3. 

D. A Description of the Projected 

Reporting, Record-Keeping, and Other 

Compliance Requirements of the Final 

Rule 

Section 604(a)(4) of the RFA requires 

a description of the projected reporting, 

record-keeping, and other compliance 

requirements of the final rule, including 

an estimate of the classes of small 

entities which would be subject to the 

requirements of the report or record. 

The commercial and recreational 

measures for SCS and pelagic sharks 

would not introduce any new reporting 

and record-keeping requirements. 

However, alternative F2 would 

implement Federal management of 

smooth dogfish and establish a permit 

for commercial and recreational 

retention of smooth dogfish in Federal 

waters. The Federal permit requirement 

for smooth dogfish would allow NMFS 

to collect data regarding participants in 

the fishery and landings through 

Federal shark dealer reports. The 

Federal dogfish permit requirement 

would require a similar permit 

application to the other current HMS 

permits. The information collected on 

the application would include vessel 

information and owner identification 

and contact information. A modest fee 

to process the application and annual 

renewal would also likely be required. 

The cost would likely be similar to the 

current fee associated with the Atlantic 

Tunas General Category and Atlantic 

HMS Angling permits, which both cost 

$16 in 2009 to obtain. 

E. A Description of the Steps Taken To 

Minimize the Significant Economic 

Impact on Small Entities 

Section 604(a)(5) of the RFA requires 

a description of the steps the Agency 

has taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes, including a 

statement of the factual, policy, and 

legal reasons for selecting the alternative 

adopted in the final rule and the reason 

that each one of the other significant 

alternatives to the rule considered by 

the Agency which affect small entities 

was rejected. These impacts are 

discussed below and in the FEIS for 

Amendment 3. Additionally, the RFA 

lists four general categories of 

‘‘significant’’ alternatives that would 

assist an agency in the development of 

significant alternatives (5 U.S.C. 

603(c)(1)–(4)). These categories of 

alternatives are: establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; clarification, consolidation, or 

simplification of compliance and 

reporting requirements under the rule 

for such small entities; use of 

performance rather than design 

standards; and, exemptions from 

coverage of the rule for small entities. 

In order to meet the objectives of this 

final rule, consistent with the 

Magnuson-Stevens Act and ESA, NMFS 

cannot exempt small entities or change 

the reporting requirements only for 

small entities because all the entities 

affected are considered small entities. 

Thus, there are no alternatives 

discussed that fall under the first and 

fourth categories described above. 

NMFS does not know of any 

performance or design standards that 

would satisfy the aforementioned 

objectives of this rulemaking while, 

concurrently, complying with the 

Magnuson-Stevens Act. Thus, there are 

no alternatives considered under the 

third category. As described below, 

NMFS analyzed several different 

alternatives in this rulemaking and 

provides rationale for identifying the 

final actions to achieve the desired 

objective. 

The alternatives considered and 

analyzed have been grouped into three 

major categories. These categories 

include commercial measures, 

recreational measures, and smooth 

dogfish-related measures. Under 

commercial measures, alternatives for 

SCS commercial quotas, gear 

restrictions, and pelagic shark effort 

controls were considered and analyzed. 

The SCS commercial quota alternatives 

include: (A1) Maintain the existing SCS 

quota; (A2) establish a new SCS quota 

of 392.5 mt dw and a blacknose 

commercial quota of 13.5 mt dw; (A3) 

establish a new SCS quota of 42.7 mt dw 

and a blacknose commercial quota of 

16.6 mt dw; allow all current authorized 

gears for sharks; (A4) establish a new 

SCS quota of 56.9 mt dw and a 

blacknose commercial quota of 14.9 mt 

dw; remove shark gillnet gear as an 

authorized gear for sharks; (A5) close 

the SCS fishery; and (A6) establish a 


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new SCS quota of 221.6 mt dw and a 

blacknose commercial quota of 19.9 mt 

dw. The commercial gear restrictions 

alternatives include: (B1) Maintain 

current authorized gears for commercial 

shark fishing; (B2) close shark gillnet 

fishery; remove gillnet gear as an 

authorized gear type for commercial 

shark fishing; and (B3) close the gillnet 

fishery to commercial shark fishing from 

South Carolina south, including the 

Gulf of Mexico and the Caribbean Sea. 

The pelagic shark effort controls 

alternatives include: (C1) Keep shortfin 

mako sharks in the pelagic shark species 

complex and do not change the quota; 

(C2) remove shortfin mako sharks from 

pelagic shark species quota and 

establish a shortfin mako quota; (C3) 

remove shortfin mako sharks from 

pelagic shark species complex and place 

this species on the prohibited shark 

species list; (C4a) establish a minimum 

size limit for shortfin mako sharks that 

is based on the size at which 50 percent 

of female shortfin mako sharks reach the 

sexual maturity or 32 inches interdorsal 

length (IDL); (C4b) establish a minimum 

size limit for shortfin makos that is 

based on the size at which 50 percent 

of male shortfin mako sharks reach the 

sexual maturity or 22 inches IDL; (C5) 

take action at the international level to 

end overfishing of shortfin mako sharks; 

and (C6) promote the release of shortfin 

mako sharks brought to fishing vessels 

alive. 

Under recreational measures, NMFS 

considered alternatives for both SCS 

and pelagic sharks. The recreational 

measures considered for SCS include: 

(D1) Maintain the current recreational 

retention and size limit for SCS; (D2) 

modify the minimum recreational size 

for blacknose sharks based on their 

biology, (D3) increase the retention limit 

for Atlantic sharpnose sharks based on 

current catches; and (D4) prohibit 

retention of blacknose sharks in 

recreational fisheries. The recreational 

measures considered for pelagic sharks 

include: (E1) Maintain the current 

recreational measures for shortfin mako 

sharks; (E2a) establish a minimum size 

limit for shortfin makos that is based on 

the size at which 50 percent of female 

shortfin mako sharks reach sexual 

maturity or 108 in FL; (E2b) establish a 

minimum size limit for shortfin makos 

that is based on the size at which 50 

percent of male shortfin mako sharks 

reach sexual maturity or 73 inches FL; 

(E3) take action at the international level 

to end overfishing of shortfin mako 

sharks; (E4) promote the release of 

shortfin mako sharks brought to fishing 

vessels alive; and (E5) prohibit retention 

of shortfin mako sharks in recreational 

fisheries (catch and release only). 

Finally, NMFS also considered 

alternatives for managing smooth 

dogfish. These alternatives include: (F1) 

Do not add smooth dogfish under NMFS 

management, (F2) add smooth dogfish 

under NMFS management and establish 

a Federal permit requirement, and (F3) 

add smooth dogfish under NMFS 

management and mirror management 

measures implemented in the ASMFC 

Interstate Shark FMP. NMFS considered 

several alternatives for adding smooth 

dogfish under NMFS management. 

These alternatives include: (F2 a1) 

Establish a smooth dogfish quota that is 

equal to the average annual landings 

from 1998–2007 (950,859 lb dw); (F2 a2) 

establish a smooth dogfish quota equal 

to the maximum annual landing 

between 1998–2007 (1,270,137 lb dw); 

(F2 a3) establish a smooth dogfish quota 

equal to the maximum annual landing 

between 1998–2007 plus one standard 

deviation (1,423,727 lb dw); (F2 b1) 

establish a separate smooth dogfish setaside quota for the exempted fishing 

program of 6 mt ww; and (F2 b2) 

establish a smooth dogfish set-aside 

quota for the exempted fishing program 

and add it to the current 60 mt ww set 

aside quota for the exempted fishing 

program. 

The potential impacts these 

alternatives may have on small entities 

have been analyzed and are discussed in 

the following sections. The final actions 

include: A6, B1, C5, C6, D1, E3, E4, F2, 

and preferred sub-alternatives F2 a4 and 

F2 b1. The economic impacts that 

would occur under these actions were 

compared with the other alternatives to 

determine if economic impacts to small 

entities could be minimized while still 

accomplishing the stated objectives of 

this rule. 

Under the No Action alternative, A1, 

there would be no additional economic 

impacts to directed and incidental shark 

permit holders as the average annual 

gross revenues from SCS landings, 

including blacknose shark landings, 

would be the same as the status quo. 

The average annual gross revenues from 

2004 through 2007 from all SCS meat 

and fins was $830,918. Based on data 

from 2004 to 2007 for directed and 

incidental shark permit holders that 

landed non-blacknose SCS, the average 

directed shark permit holder earned 

$9,765 in average annual gross 

revenues, and the average incidental 

shark permit holder earned $687 in 

average annual gross revenues from 

non-blacknose SCS landings. For those 

permit holders that actually landed 

blacknose shark during that same time 

period, the average directed shark 

permit holder earned $3,638 in average 

annual gross revenues, and the average 

incidental shark permit holder earned 

$1,721 in average annual gross revenues 

from blacknose shark landings. These 

revenues are not expected to be 

impacted by alternative A1. However, 

since alternative A1 would not reduce 

blacknose shark mortality to the level 

needed to rebuild blacknose sharks, 

NMFS did not select this alternative at 

this time. 

Under the revised alternative A2, 

NMFS would remove blacknose sharks 

from the SCS quota and create a 

blacknose shark-specific quota of 12.1 

mt dw and a separate ‘‘non-blacknose 

SCS’’ quota, which would apply to 

finetooth, Atlantic sharpnose, and 

bonnethead sharks, of 221.6 mt dw. 

NMFS anticipates that non-blacknose 

SCS landings should not decrease as the 

non-blacknose SCS quota would only be 

reduced by the average blacknose shark 

landings. Therefore, the 68 directed and 

29 incidental shark permit holders that 

had non-blacknose SCS landings would 

not be affected by the new nonblacknose SCS quota. However, the 

blacknose shark quota would be a 78- 

percent reduction based on average 

landings from 2004–2007. Average 

annual gross revenues for the blacknose 

shark landings for the entire fishery 

would decrease from $172,110 under 

the No Action alternative down to 

$33,611 under alternative A2, which is 

an 80-percent reduction in average 

annual gross revenues for blacknose 

sharks. Thus, the 44 directed and 7 

incidental shark permit holders that had 

blacknose shark landings would be 

affected by the new blacknose shark 

quota. As directed permit holders 

landed the majority of blacknose shark 

under the No Action alternative, it is 

anticipated that directed permit holders 

would experience the largest impacts 

under alternative A2. The decrease in 

average annual gross revenues for 

directed and incidental permit holders 

would depend on the specific trip limit 

associated with the blacknose quota 

established under A2. However, because 

discards would continue as fishermen 

directed on non-blacknose SCS, 

regardless of the retention limits, overall 

mortality for blacknose sharks would 

still be above the commercial allowance 

of 7,094 blacknose sharks/year, even if 

the retention of blacknose sharks was 

prohibited. Therefore, NMFS did not 

select this alternative at this time. 

Under the revised alternative A3, 

NMFS would remove blacknose sharks 

from the SCS quota and create a 

blacknose shark-specific quota of 19.9 

mt dw and a separate ‘‘non-blacknose 

SCS’’ quota of 110.8 mt dw, which 


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would apply to finetooth, Atlantic 

sharpnose, and bonnethead sharks. 

NMFS determined that by reducing the 

overall SCS fishery, NMFS would 

reduce the level of blacknose shark 

discards such that the total blacknose 

shark mortality would stay below the 

commercial allowance. 

While trip limits would not change 

for non-blacknose SCS for directed and 

incidental permit holders (i.e., no trip 

limit for directed fishermen and a 16 

non-blacknose SCS/pelagic sharks 

combined trip limit for incidental 

fishermen), given the reduction in the 

non-blacknose SCS quota, NMFS 

anticipates that the 68 directed and 29 

incidental permit holders that had nonblacknose SCS landings would be 

affected by the new non-blacknose SCS 

quota. Average annual gross revenues 

for non-blacknose SCS landings for the 

entire fishery are anticipated to be 

$310,222. This is a 53-percent reduction 

in average annual gross revenues 

compared to average annual gross 

revenues expected under the No Action 

alternative, A1. Since directed permit 

holders land approximately 97 percent 

of the non-blacknose SCS landings as 

explained in alternative A1, NMFS 

anticipates that directed permit holders 

would lose more in average annual gross 

revenues from non-blacknose SCS 

landings compared to incidental permit 

holders under alternative A3. Average 

annual gross revenues for directed shark 

permit holders of non-blacknose SCS 

under alternative A3 would be 

$300,916, which is a loss of $343,200 in 

average annual gross revenues or a 53- 

percent reduction in average annual 

gross revenues from the average annual 

gross revenues expected under the No 

Action alternative, A1. Spread amongst 

the directed shark permit holders that 

land non-blacknose SCS, this is an 

anticipated loss of $5,047 in average 

annual gross revenues from nonblacknose SCS landings per permit 

holder. Incidental permit holders land 

approximately 3 percent of the nonblacknose SCS. Average annual gross 

revenues for incidental shark permit 

holders of non-blacknose SCS under 

alternative A3 would be $9,307, which 

is a loss of $10,614 in average annual 

gross revenues or also a 53 percent 

reduction in average annual gross 

revenues from the average annual gross 

revenues expected under the No Action 

alternative, A1. Spread amongst the 

incidental shark permit holders that 

land non-blacknose SCS, this is an 

anticipated loss of $366 in average 

annual gross revenues from nonblacknose SCS landings per permit 

holder. 

The blacknose shark quota would be 

reduced to 19.9 mt dw based on average 

landings from 2004–2008. In addition, 

in order to keep the total mortality of 

blacknose sharks below the commercial 

allowance for the HMS Atlantic shark 

fishery, incidental shark permit holders 

would not be allowed to retain 

blacknose sharks under alternative A3. 

Thus, the 44 directed and 7 incidental 

shark permit holders that had blacknose 

shark landings would be affected by the 

new blacknose shark quota. Since 

incidental permit holders would not be 

able to retain blacknose sharks, the total 

blacknose shark quota would be 

available only to directed shark permit 

holders. Average annual gross revenues 

for the blacknose shark landings for the 

directed fishery would decrease from 

$160,062 under the No Action 

alternative down to $51,409 under 

alternative A3, which is a loss of 

$108,653 or a 68-percent reduction in 

average annual gross revenues for 

blacknose sharks for directed shark 

fishermen. Spread amongst the directed 

shark permit holders that land 

blacknose sharks, there would be an 

anticipated loss of $2,469 in average 

annual gross revenues from blacknose 

landings per permit holder. However, 

since incidental shark permit holders 

would not be able to retain blacknose 

sharks, they would lose an estimated 

$8,179 in average annual gross revenues 

from blacknose shark landings. Spread 

amongst the incidental permit holders 

that land blacknose sharks, there would 

be an anticipated loss of $1,168 in 

average annual gross revenues from 

blacknose landings per permit holder. 

Given the large reduction in the nonblacknose SCS quota under alternative 

A3, which would affect more directed 

and incidental permit holders compared 

to the smaller reduction in the nonblacknose SCS quota under alternative 

A6, NMFS did not select alternative A3 

at this time. 

Under alternative A4, NMFS would 

remove blacknose sharks from the SCS 

quota and create a blacknose sharkspecific quota and a separate ‘‘nonblacknose SCS’’ quota equal to 55.4 mt 

dw, which would apply to finetooth, 

Atlantic sharpnose, and bonnethead 

sharks. NMFS determined that by 

reducing the overall SCS fishery, NMFS 

could reduce the level of blacknose 

shark discards such that the total 

blacknose shark mortality would stay 

below the commercial allowance. NMFS 

would establish a blacknose-specific 

quota of 15.9 mt dw, which is the 

amount of blacknose sharks that would 

be landed while the non-blacknose SCS 

quota is taken; however, incidental 

fishermen would not be allowed to 

retain any blacknose sharks under 

alternative A4. In addition, this 

alternative assumes that gillnet gear 

would not be used to harvest sharks as 

explained under alternatives B2 and B3. 

While trip limits would not change 

for non-blacknose SCS for directed and 

incidental permit holders (i.e., no trip 

limit for directed fishermen and a 16 

non-blacknose SCS/pelagic sharks 

combined trip limit for incidental 

fishermen), given the reduction in the 

non-blacknose SCS quota, NMFS 

anticipates that the 41 directed and 22 

incidental shark permit holders that did 

not use gillnet gear to land nonblacknose SCS would be affected by the 

new non-blacknose SCS quota. Average 

annual gross revenues for non-blacknose 

SCS landings for the entire fishery are 

anticipated to be $155,111. This is a 76- 

percent reduction in average annual 

gross revenues compared to the average 

annual gross revenues expected under 

the No Action alternative, A1. Since 

directed shark permit holders land 

approximately 97 percent of the nonblacknose SCS landings as explained in 

alternative A1, NMFS anticipates that 

directed shark permit holders would 

lose more in average annual gross 

revenues from non-blacknose SCS 

landings compared to incidental shark 

permit holders under alternative A4. 

Average annual gross revenues for 

directed shark permit holders of nonblacknose SCS under alternative A4 

would be $150,458, which is a loss of 

$493,658 in average annual gross 

revenues or a 77-percent reduction in 

average annual gross revenues from the 

average annual gross revenues expected 

under the No Action alternative, A1. 

Spread amongst the directed shark 

permit holders that did not use gillnet 

gear to land non-blacknose SCS, there 

could be an anticipated loss of $12,040 

in average annual gross revenues from 

non-blacknose SCS landings per permit 

holder. Incidental shark permit holders 

land approximately 3 percent of the 

non-blacknose SCS landings as 

explained in alternative A1. Average 

annual gross revenues for incidental 

shark permit holders of non-blacknose 

SCS under alternative A4 would be 

$4,653, which is a loss of $15,268 in 

average annual gross revenues or a 77- 

percent reduction in average annual 

gross revenues from the average annual 

gross revenues expected under the No 

Action alternative, A1. Spread amongst 

the incidental shark permit holders that 

did not use gillnet gear to land nonblacknose SCS, there could be an 

anticipated loss of $694 in average 

annual gross revenues from nonVerDate Mar<15>2010 15:46 May 28, 2010 Jkt 220001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\01JNR2.SGM 01JNR2

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blacknose SCS landings per permit 

holder. 

The blacknose shark quota would also 

be a 72-percent reduction based on 

average landings from 2004 though 

2008. In addition, in order to keep the 

total mortality of blacknose sharks 

below the commercial allowance for the 

HMS Atlantic shark fishery, incidental 

shark permit holders would not be 

allowed to retain blacknose sharks 

under alternative A4. Thus, the 15 

directed and 5 incidental shark permit 

holders that did not use gillnet gear to 

land blacknose sharks would be affected 

by the new blacknose shark quota. Since 

incidental shark permit holders would 

not be able to retain blacknose sharks, 

the total blacknose shark quota would 

be available only to directed shark 

permit holders. Average annual gross 

revenues for the blacknose shark 

landings for the directed fishery would 

decrease from $160,062 under the No 

Action alternative down to $41,075 

under alternative A4, which is a loss of 

$118,987 or a 74-percent reduction in 

average annual gross revenues from 

blacknose sharks for directed shark 

permit holders. Spread amongst the 

directed shark permit holders that did 

not use gillnet gear to land blacknose 

sharks, there could be an anticipated 

loss of $7,932 in average annual gross 

revenues from blacknose landings per 

vessel. Incidental shark permit holders 

would lose an estimated $12,048 in 

average annual gross revenues from 

blacknose shark landings. Spread 

amongst the incidental shark permit 

holders that did not use gillnet gear to 

land blacknose sharks, there could be an 

anticipated loss of $1,791 in average 

annual gross revenues from blacknose 

landings per permit holder. 

By reducing effort in the overall SCS 

fishery under Alternative A4, NMFS 

could reduce the level of blacknose 

shark discards such that the total 

blacknose shark mortality would stay 

below the commercial allowance 

needed to rebuild the stock. Gillnet 

fishermen would be affected the most by 

alternative A4 in combination with 

alternative B2 or B3, with estimated 

gross revenue losses between $377,928 

and $365,067 from lost non-blacknose 

SCS and blacknose landings. 

Alternative A5 would close the entire 

SCS commercial shark fishery, 

prohibiting the landing of any SCS, 

including blacknose sharks. Thus, this 

alternative would eliminate landings of 

all SCS, including finetooth, Atlantic 

sharpnose, bonnethead, and blacknose 

sharks. This would have negative 

economic impacts on the average 85 

directed shark permit holders, and the 

average 31 incidental shark permit 

holders that had SCS landings during 

2004–2007. This would result in a loss 

of average annual gross revenues of 

$664,037 for non-blacknose SCS and 

$172,110 from blacknose shark landings 

for a total loss of $830,918 in average 

annual gross revenues from SCS 

landings. Directed shark permit holders 

would lose $644,116 in average annual 

gross revenues from non-blacknose SCS 

landings and $160,062 in average 

annual gross revenues from blacknose 

shark landings for a total of $805,990 in 

average annual gross revenues. Spread 

among the 85 directed shark permit 

holders that landed SCS, this could 

result in a loss in average annual gross 

revenues of $9,482 per permit holder. 

Incidental shark permit holders 

would lose $19,921 in average annual 

gross revenues from non-blacknose SCS 

landings and $12,048 in average annual 

gross revenues from blacknose shark 

landings for a total of $31,969 in average 

annual gross revenues under alternative 

A5. Spread among the 31 incidental 

shark permit holders that landed SCS, 

this could result in a loss in average 

annual gross revenues of $1,031 per 

permit holder. 

In addition, as gillnet gear is the 

primary gear used to target SCS, it is 

assumed that directed shark gillnet 

fishing would end, except for fishermen 

that use gillnet gear to strikenet for 

blacktip sharks. Approximately 11 

directed shark permit holders use gillnet 

gear to land LCS. This would result in 

a decrease in LCS landings of 102,171 

lb dw and a decrease in average annual 

gross revenues of $107,280. Spread 

among the 11 directed shark permit 

holders that land LCS with gillnet gear, 

this alternative would result in a loss in 

average annual gross revenues of $9,753 

per permit holder. 

While this alternative could reduce 

blacknose mortality below the 

commercial allowance of 44,853.8 lb 

dw, it would also completely eliminate 

the fishery for all SCS. Of the 

alternatives analyzed, alternative A5 

would result in the most significant 

economic impacts to small entities. In 

addition, this alternative would severely 

curtail data collection on all SCS that 

could be used for future stock 

assessments. Thus, NMFS did not select 

this alternative at this time. 

Alternative A6, the final action, 

combines parts of alternatives A2 and 

A3 that would establish a blacknose 

species-specific quota of 19.9 mt dw and 

a non-blacknose SCS quota of 221.6 mt 

dw. NMFS designed this alternative to 

minimize economic impacts on shark 

fishermen and other participants in the 

fishery related to SCS quota reductions. 

Alternative A6 would set the nonblacknose SCS quota at a level equal to 

the average annual landings from 2004 

through 2008, and the blacknose quota 

at a level that is a 64 percent reduction 

of the average landings for that species 

over the same time period. This 

proposal comes in response to recently 

updated SEFSC data used for analysis, 

and in response to concerns raised by 

the commercial and scientific 

communities during the comment 

period for the DEIS. Under alternative 

A6 all currently authorized gears for 

shark fishing would be allowed in the 

fishery. 

Under the non-blacknose SCS quota 

proposed in alternative A6, those 

fishermen with the 68 directed shark 

permits and 29 incidental shark permits 

that had non-blacknose SCS landings 

would be expected to fish as they 

currently do under the No Action 

alternative, and shark dealers and other 

entities that deal with shark products 

would be expected to operate as they do 

under the No Action alternative. 

Average annual gross revenues for nonblacknose SCS landings for the entire 

fishery are anticipated to decline by 

approximately 6-percent compared to 

the No Action alternative, to $620,445, 

under alternative A6, representing a 

revenue loss of $43,593. Average annual 

gross revenue for blacknose shark 

landings for the entire fishery is 

expected to decline to $55,278, a loss of 

$116,832. 

Since directed shark permit holders 

accounted for 97 percent of the landings 

for non-blacknose SCS, the total revenue 

for these fishermen would decrease by 

6 percent to $601,832, a loss of $42,284 

from the No Action alternative nonblacknose directed shark permit revenue 

total of $644,116. Spread across the 68 

directed shark permit holders that 

reported non-blacknose landings, this 

would result in a per boat decrease of 

$622 ($42,284/68 directed vessels = 

$622). With incidental shark permit 

holders accounting for 3 percent of the 

annual revenue from non-blacknose 

landings based on alternative A6, there 

would be a decrease in total revenue of 

$1,308, or 7 percent, to $18,613 from the 

No Action Alternative of $19,921. This 

would result in a loss of revenue from 

non-blacknose SCS per incidental vessel 

of $45 ($1,308/29 incidental vessels = 

$45). Therefore, social and economic 

impacts of the non-blacknose SCS quota 

on fishermen with directed and 

incidental shark permit would be 

slightly negative under alternative A6. 

Under the blacknose shark quota 19.9 

mt dw, the 44 directed shark permit 

holders and 7 incidental shark permit 

holders that had blacknose shark 

landings would experience direct 


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negative social impacts, as they would 

most likely have to fish in other 

fisheries to make up for lost blacknose 

landings or leave the fishery altogether. 

Other entities that deal with blacknose 

shark products, such as shark dealers, 

would indirectly experience negative 

social impacts as they would also have 

to change their business practices to 

make up for lost blacknose shark 

product. In total, average annual gross 

revenues for the blacknose shark 

landings for the directed shark permit 

holders would decrease from $160,062 

under the No Action alternative down to 

$51,409 under alternative A6, which is 

a loss of $108,653 or a 68-percent 

reduction in average annual gross 

revenues for blacknose sharks for 

directed shark fishermen. Spread 

amongst the directed shark permit 

holders that land blacknose sharks, 

there could be an anticipated loss of 

$2,469 in average annual gross revenues 

from blacknose landings per permit 

holder ($108,653/44 directed vessels = 

$2,469 per vessel). For incidental shark 

permit holders the 68-percent reduction 

in blacknose shark landings would 

translate into an average annual gross 

revenue of $3,869, which would be a 

loss of income of $8,179 from the 

annual average of $12,048 under the No 

Action alternative. Spread amongst the 

7 incidental shark permit holders, this 

would result in an annual loss of $1,168 

per permit holder ($8,179/7 incidental 

vessels = $1,168). 

Under alternative A6, if either the 

non-blacknose SCS quota (221.6 mt dw) 

or blacknose shark quota (19.9 mt dw), 

reached 80 percent of the available 

landings, NMFS would close both 

fisheries for the rest of the season. If a 

future stock assessment determines that 

blacknose sharks are continuing to be 

overfished or that overfishing is still 

occurring NMFS could make regulatory 

changes as needed in future 

management actions. These changes 

may include, but are not limited to 

reducing the blacknose shark quota and/ 

or the non-blacknose SCS quota, and 

implementing daily blacknose catch 

limits. Alternative A6 would meet the 

rebuilding requirements of the 

Magnuson-Stevens Act by addressing 

the overfished status and overfishing of 

blacknose sharks by reducing the 

blacknose shark quota to 19.9 mt dw. 

While NMFS recognizes that there may 

be negative social and economic 

impacts on parts of the fishing 

community due to the reduced 

blacknose shark quota, in selecting the 

quota of 221.6 mt dw for the nonblacknose SCS fishery, NMFS is 

minimizing those negative 

socioeconomic impacts, especially since 

the bulk of the catch in the SCS fishery 

comes from shark species that have been 

determined to not be overfished or 

undergoing overfishing (i.e. finetooth, 

sharpnose, and bonnethead sharks). 

Therefore, NMFS is finalizing 

alternative A6 at this time. 

Alternative A6 would result in 

positive ecological impacts to blacknose 

sharks by reducing mortality of this 

species below the commercial 

allowance of 7,094 blacknose sharks per 

year that is necessary for this stock to 

rebuild with a 70 percent probability by 

2027 consistent with the rebuilding plan 

and the objectives of this amendment. 

Alternative A6 would also reduce effort 

and mortality in the non-blacknose SCS 

fishery, to a level that is equal to the 

average landings for these species for 

the years 2004 through 2008. 

Alternative A1 (No Action alternative) 

does not reduce effort or mortality in the 

commercial SCS fishery, so does not 

address the overfished status or 

overfishing of blacknose sharks. The 

scenarios under alternative A2 that 

eliminate gillnets as an authorized gear 

and those that eliminate retention of 

blacknose sharks altogether, fail to meet 

the goal of reducing blacknose shark 

mortality, due to the high number of 

discards of blacknose sharks from those 

gears that would continue to operate in 

the fishery. For those scenarios under 

alternative A2 that would continue to 

allow gillnets to be retained as an 

authorized gear, the necessary reduction 

in blacknose sharks is met, but the quota 

is exceeded. Under alternative A3 the 

goal of reducing the blacknose shark 

mortality to necessary levels is obtained, 

but due to the significant reduction of 

the non-blacknose SCS quota, there 

would be a 67 percent increase in 

discard mortality of non-blacknose SCS. 

Both alternatives A4 and A5 would 

achieve the necessary blacknose shark 

mortality reduction, but the social and 

economic impacts on the commercial 

shark permit holders from the reduced 

quotas would be significant. 

Compared to the other alternatives 

analyzed, alternative A6 would result in 

the least negative social and economic 

impacts on the participants of the SCS 

commercial fishery while still meeting 

the goal of reducing mortality and 

rebuilding blacknose sharks. Under 

alternative A6, the non-blacknose SCS 

quota of 221.6 mt dw would result in a 

loss of $43,592 in average annual 

revenues for all permit holders. The 

reduced blacknose quota of 19.9 mt dw 

would result in a loss of $116,833 for all 

permit holders. Under alternative A2, 

directed and incidental permit holders 

would lose $138,499 in average annual 

revenue, from the blacknose quota of 

12.1 mt dw. Under alternative A3 as in 

alternative A6, the blacknose quota of 

19.9 mt dw would result in an 

anticipated loss in average annual 

revenues for directed and incidental 

permit holders. The non-blacknose 

quota of 110.8 mt dw, under alternative 

A3, would result in a loss of average 

annual revenues to all permit holders of 

$275,103. Under alternative A4, the 

reduction in blacknose quota to 15.9 mt 

dw would result in an average annual 

loss of revenues for all permit holders 

of $124,853. With the prohibition on 

gillnets in alternative A4, all permit 

holders would lose approximately 

$287,524 from the reduced nonblacknose SCS quota and many would 

have to completely change the way they 

fished, or to leave the fishery entirely. 

Because alternative A5 would 

completely close the SCS fishery, those 

directed and incidental permit holders 

that land non-blacknose SCS and 

blacknose sharks would be forced to 

move into other fisheries and would 

likely create pressure on other 

commercial species. While alternative 

A1, the No Action alternative, would 

have the least negative social and 

economic impacts on the SCS 

commercial fishery participants, this 

alternative does not reduce mortality of 

blacknose sharks in order to meet the 

rebuilding goals of this amendment or 

stop overfishing of this stock. 

Under alternative B1, the final action, 

NMFS would maintain the current gear 

restrictions for rod and reel, gillnet, and 

BLL gear. Between the DEIS and the 

FEIS, NMFS switched to this alternative 

as the preferred alternative to minimize 

the economic impacts to fishermen and 

other participants in the fishery. The 

economic impacts of alternative B1 

would be the same as the status quo, 

and no negative economic impacts 

would be anticipated under alternative 

B1. On average from 2004–2007, the 

directed and incidental shark permit 

holders earned average annual gross 

revenues from SCS landings of 

$833,634, while the directed and 

incidental permit holders that landed 

LCS earned larger gross revenues of 

$3,328,663. The smooth dogfish fishery 

is smaller than the other fisheries and 

only has average annual gross revenues 

of $371,786 for State and Federally 

permitted fishermen reporting to the 

ACCSP. Based on this alternative, the 

average annual gross revenues of these 

fisheries would remain the same as the 

status quo. The average number of 

directed and incidental shark permit 

holders that reported SCS landings in 

the Coastal Fisheries logbook from 


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2004–2007 were 116 (85 directed and 31 

incidental shark permit holders), and 

the LCS fishery had an annual average 

of 162 permit holders (129 directed and 

33 incidental shark permit holders) 

reporting LCS landings in the Coastal 

Fisheries logbook from 2004–2007. The 

number of permit holders would not be 

impacted by the No Action alternative. 

NMFS selects this least cost SCS 

commercial gear restriction alternative. 

Under alternative B2, NMFS would 

remove gillnet gear as an authorized 

gear type for commercial shark fishing. 

This alternative would have significant 

negative economic impacts by 

potentially affecting 30 directed and 7 

incidental shark permit holders. On 

average, directed shark permit holders 

landed 289,546 lb dw of SCS with 

gillnet gear. This is equivalent to 

$365,955 in lost average annual gross 

revenues from SCS landings for directed 

shark permit holders. Based on average 

ex-vessel prices per pound from 2004– 

2007, directed shark permit holders 

made $807,792 in average annual gross 

revenues from SCS landings. On 

average, incidental shark permit holders 

landed 9,465 lb dw of SCS with gillnet 

gear. This is equivalent to $11,973 in 

lost average annual gross revenues from 

SCS landings for incidental shark 

fishermen due to the prohibition of 

gillnet gear. Based on average ex-vessel 

prices per pound from 2004–2007, 

incidental shark permit holders made 

$25,843 from SCS landings under the 

status quo. This represents a 45 percent 

reduction in SCS revenues for directed 

shark permit holders and a 46 percent 

reduction in SCS revenues for 

incidental shark permit holders 

compared to the No Action alternative, 

alternative B1. 

This alternative would have a 

minimal negative economic impact on 

the LCS fishery. Only 11 directed and 5 

incidental shark permit holders out of 

the 162 total shark permit holders 

would be affected. On average, directed 

shark permit holders landed 102,171 lb 

dw of LCS with gillnet gear. This is 

equivalent to $107,280 in lost average 

annual gross revenues from LCS 

landings (3 percent reduction). On 

average, incidental shark permit holders 

landed 1,961 lb dw of LCS with gillnet 

gear. This is equivalent to $2,059 in lost 

average annual gross revenues from LCS 

landings for incidental shark permit 

holders due to the prohibition of gillnet 

gear. In total ($109,339), this is 

approximately 3 percent of the gross 

revenues for the entire LCS fishery 

under the status quo (i.e., $3,328,663). 

Gillnets are also the primary gear type 

used to catch smooth dogfish. Within 

the VTR data, a primarily Northeast U.S. 

reporting system, an average of 213 

vessels reported smooth dogfish 

landings per year between 2004 and 

2007. Within the Coastal Fisheries 

Logbooks data, a primarily Southeast 

U.S. reporting system, an average of 10 

vessels reported smooth dogfish 

landings per year between 2004 and 

2007. From these data, an estimate of 

223 vessels would require a smooth 

dogfish permit; however, as fishermen 

are currently not required to have a 

permit to retain smooth dogfish, this 

could be an underestimate of the 

number of fishermen that would require 

a Federal commercial permit for smooth 

dogfish in the future. The average total 

annual landings from 1998–2007 was 

950,859 lb dw (by State and Federally 

permitted fishermen reporting to the 

ACCSP, however, since fishermen do 

not have to currently report smooth 

dogfish landings, this could be an 

underestimate of total landings, and 

thus, an underestimate of average 

annual gross revenues for this fishery). 

Based on average ex-vessel prices per 

pound from 2004–2007, average annual 

gross revenues for the entire smooth 

dogfish fishery totaled $371,786 from 

smooth dogfish landings. Based on the 

preferred alternative F2, which would 

require fishermen who fish for smooth 

dogfish in Federal waters to obtain a 

Federal smooth dogfish permit, then 

under alternative B2, those fishermen 

would not be able to use gillnet gear to 

land smooth dogfish. This would have 

a negative economic impact on 

fishermen who previously used gillnet 

gear in Federal waters to land smooth 

dogfish. However, as fishermen do not 

currently have to have a Federal permit 

to land smooth dogfish, NMFS is 

uncertain the universe of fishermen who 

might be affected by alternatives B2 and 

F2 at this time. However, given the 

potential large negative economic 

impacts of this alternative to the SCS, 

LCS, and smooth dogfish fisheries, 

NMFS did not select this alternative at 

this time. 

Under alternative B3, NMFS would 

close the commercial gillnet fishery 

from South Carolina south, including 

the Gulf of Mexico and the Caribbean 

Sea. This would have a negative 

economic impact on Federally 

permitted directed and incidental 

fishermen. In the SCS fishery, this 

alternative would affect an average of 27 

directed and 5 incidental shark permit 

holders out of the average 116 total 

shark permit holders that landed SCS 

from 2004–2007. The SCS gillnet fishery 

from South Carolina south accounts for 

44 percent of the total directed shark 

permit holder landings, and 26 percent 

of landings in the incidental fishery. On 

average, directed shark permit holders 

landed 283,462 lb dw ($358,261) of SCS 

with the gillnet gear from South 

Carolina south. Thus, directed shark 

fishermen would lose $358,261 in 

average annual gross revenues from SCS 

landings from the gillnet prohibition 

under alternative B3. Based on average 

ex-vessel prices from 2004–2007, 

directed shark permit holders made 

$807,792 in average annual gross 

revenues from SCS landings. On 

average, incidental shark permit holders 

landed 5,381 lb dw ($6,807) of SCS with 

gillnet gear from South Carolina south. 

Thus, incidental shark permit holders 

would lose $6,807 in average annual 

gross revenues from non-blacknose SCS 

landings under alternative B3. The 

directed and incidental shark permit 

holders would lose average annual gross 

revenues of $365,068 from their current 

gross revenues of $833,634. 

This alternative would have minor 

economic impacts on the LCS fishery. It 

would only affect 12 directed and 

incidental shark permit holders. The 

directed shark permit holders would 

lose $106,189 in average annual gross 

revenues from lost LCS landings in 

gillnet gear from South Carolina south 

under alternative B3. Incidental shark 

permit holders would lose $290 from 

lost LCS landings in gillnet gear from 

South Carolina south. In total 

($106,479), this is only 3 percent of the 

average annual gross revenues (i.e., 

$3,328,663) from LCS landings 

compared to the LCS fishery under the 

status quo. 

Alternative B3, in combination with 

the final action F2, would not affect the 

economic impacts of the smooth dogfish 

fishery. Smooth dogfish are primarily 

caught from North Carolina north. The 

average total landings/year is 950,859 lb 

dw/year (by State and Federally 

permitted fishermen reporting to the 

ACCSP, however, since fishermen do 

not have to currently report smooth 

dogfish landings, this could be an 

underestimate of total landings, and 

thus, an underestimate of average 

annual gross revenues for this fishery), 

which translates into average annual 

gross revenues of $371,786 lb dw/year 

from smooth dogfish landings. Given 

that smooth dogfish are not typically 

landed with gillnet gear from South 

Carolina south, NMFS anticipates that 

this alternative, in combination with the 

preferred alternative F2, would not 

cause significant loss in average annual 

gross revenues from smooth dogfish 

landings. 

The No Action alternative, C1, would 

not modify or alter commercial fishing 

practices for shortfin mako sharks or 


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other shark species. There would be no 

additional economic impacts to directed 

and incidental fishermen as the average 

annual gross revenues from shortfin 

mako sharks or other shark species 

would be the same as the status quo. On 

average, 72.5 mt dw of shortfin mako 

sharks were commercially landed 

between 2004 and 2007, which is 

equivalent to $350,039 in annual 

revenues. On average between 2004 and 

2007, approximately 90 vessels had 

shortfin mako shark landings. Directed 

shark permit holders made up 39 of 

these vessels. However, since shortfin 

mako is typically incidentally caught, 

the average landings value per vessel 

was estimated by dividing annual 

revenues amongst all the vessels that 

have landed shortfin mako. Therefore, 

the vessels that landed shortfin mako 

generated an average of $3,889 in gross 

revenues per year from shortfin mako 

sharks. The No Action alternative would 

not allow NMFS to meet statutory 

requirements to take measures to end 

overfishing. Thus, No Action was not 

identified as a preferred alternative. 

Alternative C2 would implement a 

species-specific quota for shortfin mako 

at the level of the average annual 

commercial landings for this species. 

This alternative is expected to have 

neutral or slightly negative economic 

impacts. On average, 72.5 mt dw 

(159,834 lb dw) of shortfin mako sharks 

were commercially landed between 

2004 and 2007, which is equivalent to 

$350,039 in average annual gross 

revenues. Spread amongst the vessels 

that landed shortfin mako sharks, the 

average vessel earned $3,889 in annual 

gross revenues from shortfin mako 

sharks. While fishermen would be able 

to maintain current fishing effort under 

this alternative, any increase in effort 

would be restricted by the speciesspecific quota of 72.5 mt dw. Under the 

No Action alternative, commercial 

fishermen currently have a 488 mt dw 

quota, which could potentially be filled 

entirely by shortfin mako landings. This 

could result in maximum annual 

revenues equal to $2,356,106. Thus, 

there is the potential loss of the option 

to fish up to the maximum level under 

this alternative. This difference is 

$2,006,067 in annual gross revenues 

from shortfin mako sharks. Spread 

amongst the 90 vessels that, on average, 

have landed shortfin mako sharks from 

2004 to 2007, that difference would be 

$22,289 annually per vessel. However, 

given shortfin mako sharks are 

incidentally caught in the PLL fishery, 

it is unlikely that the entire pelagic 

shark quota would be entirely filled 

with shortfin mako landings. NMFS did 

not select this alternative at this time 

because the United States contributes a 

small portion of shortfin mako mortality 

due the lack of a directed fishery 

compared to shortfin mako mortality 

resulting from the fishing of foreign 

vessels outside of the U.S. EEZ. In 

addition, this alternative does not 

minimize the potential economic 

impacts on small entities. 

Alternative C3 would remove shortfin 

mako sharks from the pelagic shark 

species complex and add them to the 

prohibited species list. This alternative 

is not expected to have negative 

economic impacts for commercial 

fishermen because it is not a species 

that is targeted by commercial 

fishermen. Shortfin mako sharks are 

predominately caught incidentally in 

the PLL fishery and, on average, the 

commercial landings for shortfin mako 

sharks, from 2004 to 2007 were 72.5 mt 

dw with an estimated gross ex-vessel 

value of $350,039. However, since 

shortfin makos would be placed on the 

prohibited species list under alternative 

C3, there could be an estimated 

reduction in average annual gross 

revenues of $350,039 to the commercial 

fishermen. Based on the average number 

of vessels that have landed shortfin 

mako from 2004 to 2007, the revenue 

reductions would be approximately 

$3,889 per vessel annually. In addition, 

this alternative could lead to increased 

operation time if commercial fishermen 

have to release and discard all shortfin 

makos that are caught on the PLL gear. 

In addition, if the commercial PLL fleet 

expands in the future, placing shortfin 

mako sharks on the prohibited species 

list could result in a loss of future 

revenues for the commercial PLL 

fishery. Thus, NMFS did not select this 

alternative at this time. 

Alternative C4a would establish a 

minimum size limit for shortfin makos 

that is based on the size at which 50 

percent of female shortfin mako sharks 

reach sexual maturity or 32 inches IDL. 

The summed dressed weight of all 

shortfin mako sharks kept under the 32 

inches IDL size limit made up 1.4 

percent of total dressed weight landings 

of shortfin mako sharks based on POP 

data. NMFS estimated this would 

reduce shortfin mako harvests by 

2,061.1 lb dw. The economic impacts of 

this restriction would be an average 

annual gross revenue loss of $4,513 for 

this fishery. Spread amongst the 90 

vessels that have landed shortfin mako 

sharks from 2004 to 2007, the per vessel 

losses would be approximately $50 

annually. 

Alternative C4b would establish a 

minimum size limit for shortfin makos 

that is based on the size at which 50 

percent of male shortfin mako sharks 

reach sexual maturity or 22 inches IDL. 

The summed dressed weight of all kept 

shortfin mako sharks under the 22 

inches IDL size limit made up 0.02 

percent of dressed weight landings of 

shortfin mako based on POP data. 

NMFS estimated this would reduce 

shortfin mako harvests by 34.3 lb dw. 

The economic impacts of this restriction 

would be an average annual gross 

revenues loss of $75 for this fishery. 

Alternatives C4a and C4b would have 

minimal economic impacts because 

only a small percentage of commercial 

landings would be affected by the size 

restrictions. Of the two alternatives, the 

negative economic impact of C4a would 

be greater, as commercial landings by 

weight are 2,026.8 lb dw greater than in 

alternative C4b. Despite these minimum 

economic impacts, since the size limits 

would not reduce fishing mortality of 

shortfin mako sharks in the commercial 

sector, NMFS did not select these 

alternatives at this time. 

Under alternative C5, the final action, 

NMFS would take action at the 

international level through international 

fishery management organizations to 

establish management measures to end 

overfishing of shortfin mako sharks. In 

the short term, this alternative would 

not result in any negative economic 

impacts on commercial fishermen as it 

would not restrict commercial harvest of 

shortfin mako sharks, nor alter the 

pelagic shark quota. Therefore, the near 

term economic impacts of alternative C5 

would be the same as described in the 

No Action alternative C1. However, this 

alternative could have negative 

economic impacts in the long term if 

directed management measures were 

adopted at an appropriate international 

forum that would require the reduction 

of landings domestically for shortfin 

mako sharks. Recommended reductions 

in landings, if implemented by multiple 

nations, would ultimately end 

overfishing of shortfin mako. Therefore, 

NMFS selects alternative C5 at this time. 

Note that with respect to all shortfin 

mako commercial measures, alternatives 

C5 and C6 would have the lowest shortterm economic impacts on fishermen 

and participants in the fishery. 

Alternative C6, the preferred 

alternative, would promote the release 

of shortfin mako sharks brought to 

fishing vessels alive. This alternative 

would likely not result in any negative 

economic impacts on commercial 

fishermen as it does not restrict 

commercial harvest of shortfin mako 

sharks that are alive at haulback, and 

quotas and retention limits would 

remain as described in the No Action 

alternative C1. However, as this 


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alternative could result in the reduction 

of fishing mortality of shortfin mako 

sharks by encouraging fishermen to 

release shortfin mako sharks brought to 

the fishing vessel alive, NMFS selects 

this alternative at this time. 

Under alternative D1, the final action, 

NMFS would maintain the current 

recreational management measures, 

including the current retention limits 

and size limits for SCS. Therefore, the 

economic impacts of alternative D1 

would be the same as the status quo, 

and no negative economic impacts 

would be anticipated under alternative 

D1. Alternative D1 is the least costs 

alternative and NMFS selects this 

alternative. 

Alternative D2 would modify the 

minimum recreational size for 

blacknose sharks based on the biology of 

blacknose sharks. This would lower the 

current size limit from 54 inches FL to 

36 inches FL, the size at which 50 

percent of the female blacknose sharks 

reach sexual maturity. This could 

increase the landings of recreationally 

harvested blacknose sharks and, 

therefore, have positive economic 

impacts for small business entities 

supporting recreational fishermen. The 

potential for increased landings 

associated with the lower size limit 

could marginally increase demand for 

charter/headboat services and for 

products and service provided by 

shoreside businesses that support 

recreational fishermen. Since this 

alternative could result in the increase 

of blacknose shark recreational 

landings, and NMFS needs to reduce the 

number of blacknose shark landings in 

order to rebuild the stock, NMFS did 

not select this alternative at this time. 

Alternative D3 would increase the 

retention limit for Atlantic sharpnose 

sharks based on their current catches 

and stock status. Any increase in the 

retention limit for Atlantic sharpnose 

sharks would provide positive economic 

impacts for recreational fishermen, 

especially if this resulted in more 

charter trips for charter/headboats. 

However, since the latest stock 

assessment suggests that increased 

fishing efforts could result in an 

overfished status and/or cause 

overfishing to occur in the future 

(NMFS, 2007), NMFS did not select this 

alternative at this time. 

Under alternative D4, NMFS would 

prohibit the retention of blacknose 

sharks in the recreational fishery. While 

recreational fishermen could still catch 

blacknose sharks, they would not be 

permitted to retain blacknose sharks and 

would have to release them. This could 

have negative economic impacts on 

recreational fishermen, including 

tournaments and charter/headboats if 

the prohibition of blacknose sharks 

resulted in fewer charters and reduced 

tournament participation. However, 

since blacknose sharks are not one of 

the primary species targeted by 

recreational anglers, in tournaments, or 

on charters, NMFS does not anticipate 

large negative economic impacts from 

this alternative on tournaments or 

charter/headboat businesses. 

Maintaining the current recreational 

measures for shortfin mako sharks 

under alternative E1 would likely not 

result in any adverse economic impacts 

on small entities since the No Action 

alternative would not modify or alter 

recreational fishing practices for 

shortfin mako sharks or other shark 

species. However, this alternative would 

not meet the objective of this rule in 

reducing overfishing of shortfin mako 

sharks, Thus, NMFS did not select this 

alternative at this time. 

Alternative E2a would set a minimum 

size limit for shortfin mako sharks of 

108 inches FL in the recreational 

fishery. This would have the most 

severe economic impacts of all the 

alternatives considered, as almost all of 

the reported shortfin mako sharks 

landed (99.5 percent) were smaller than 

the proposed 108 inch FL size limit and 

would have to be released. This 

alternative would basically create a 

catch-and-release fishery for shortfin 

mako sharks. The impacts of alternative 

E2b would be less severe than 

alternative E2a, as it would set a 

minimum size limit for shortfin mako 

sharks of 73 inches FL in the 

recreational fishery. This would result 

in a 60.3 percent overall reduction in 

recreational shortfin mako shark 

landings. Under this alternative, 

economic impacts would be greater on 

the non-tournament recreational mako 

shark fishery, as 81 percent of those 

landings would fall below the 73 inch 

FL size limit. The percentage of 

recreational landings during 

tournaments that would be released 

under alternative E2b would be less 

than the non-tournament recreational 

landings (51.7 percent to 81 percent, 

respectively). According to LPS data, 41 

percent of shortfin mako sharks caught 

are kept; therefore, size limits in 

alternatives E2 may have a substantial 

economic impact on the recreational 

fishery. Thus, NMFS did not select 

alternatives E2a or E2b at this time. 

Under alternative E3, the final action, 

NMFS would take action at the 

international level to end overfishing of 

shortfin mako sharks through 

participation in international fisheries 

organizations such as ICCAT. This 

alternative would not result in any 

changes in the current recreational 

regulations regarding bag or size limits 

for shortfin mako sharks. Therefore, this 

alternative would likely not result in 

any negative economic impacts for 

recreational fishermen and the small 

businesses that support those 

recreational fishing activities in the 

short term as compared to the No Action 

alternative, E1. In addition, this 

alternative could help end overfishing 

of shortfin mako sharks in the long term 

through an international plan to 

conserve shortfin mako sharks. 

Therefore, NMFS selects this alternative 

at this time. 

Under alternative E4, the final action, 

NMFS would promote the live release of 

shortfin mako sharks in the recreational 

shark fishery, but this alternative would 

not result in any changes in the current 

recreational regulations regarding bag or 

size limits for shortfin mako sharks. 

Therefore, this alternative would likely 

not result in any economic impacts 

compared to the No Action alternative, 

alternative E1. However, it would 

encourage the live release of shortfin 

mako sharks, and could help reduce 

fishing pressure on this species. 

Therefore, NMFS selects this alternative 

at this time. 

Under alternative E5, NMFS would 

remove shortfin mako sharks from the 

authorized species list and add them to 

the prohibited species list. Placing 

shortfin mako sharks on the prohibited 

species list would make the recreational 

fishery for shortfin mako sharks a catchand-release fishery. Although a small 

number of shortfin mako sharks were 

landed in the recreational fishery from 

2004 to 2007, it is also an important 

fishing tournament species. Fishing 

tournaments are an important 

component of HMS recreational 

fisheries. In 2008, there were 42 shark 

tournaments throughout the U.S. 

Atlantic Coast, including the Gulf of 

Mexico and the Caribbean Sea. 

Therefore, adding this species to the 

prohibited species list could lead to 

negative economic impacts for 

tournament operators since they may 

have to modify their tournament rules 

and could face reduced demand for 

participation, and thus reduce revenues 

from entry fees. A recreational catchand-release fishery for shortfin mako 

may also reduce demand for CHB trips 

that target shortfin mako sharks. In 

addition, since the United States only 

contributes to a small portion of the 

overall mortality for shortfin mako 

sharks, prohibiting them in the 

recreational fishery would not end 

overfishing for this species. Given these 

reasons and the fact that the economic 

impacts of this alternative are estimated 


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to be higher than that of the preferred 

alternatives, NMFS did not select this 

alternative at this time. 

NMFS also considered alternatives 

regarding the potential inclusion of 

smooth dogfish under NMFS 

management. Smooth dogfish are 

currently not managed by NMFS, and 

stock data are sparse. Therefore, there is 

limited stock status information, 

participant information, and effort data 

for this fishery. 

Under alternative F1, the no action 

alternative, NMFS estimates that there 

would not be any economic impacts to 

small entities beyond the status quo. 

This alternative would have the lowest 

costs alternative to small entities. 

However, applying the No Action 

alternative would not meet the 

objectives of this rule since it would 

preclude gathering fishery participant 

information. Therefore, NMFS did not 

select this alternative at this time. 

Implementing Federal management of 

smooth dogfish through alternative F2, 

the final action, would focus on 

characterizing the fishery and stock 

status, but would not actively change 

catch levels or rates. Alternative F2 

would require Federal commercial and 

recreational fishing permits as well as 

require fishermen to land smooth 

dogfish with all of their fins naturally 

attached. These changes could result in 

short-term, direct significant adverse 

socioeconomic impacts on fishermen 

who are used to processing smooth 

dogfish at sea. Business entities that fish 

commercially for smooth dogfish would 

have to purchase an open access smooth 

dogfish commercial fishing permit, and 

dealers would have to report smooth 

dogfish landings. The costs to small 

entities would include the costs of 

obtaining the permit (approximately $20 

based on current permit fees), the time 

involved in completing the permit form, 

and the administrative costs associated 

with reporting landings. In addition, 

recreational anglers that would want to 

retain smooth dogfish in Federal waters 

would need to purchase an HMS 

Angling category permit. While this 

alternative results in more costs to small 

entities than alternative F1, it helps 

meet the objectives of this rule of 

gathering more information on 

participation in this fishery, and 

therefore is preferred at this time. NMFS 

would delay the implementation of 

these requirements until the start of the 

2012 fishing season to allow time for 

fishermen to adjust to the changes and 

to allow time for the development of a 

new commercial smooth dogfish permit. 

Thus, in the short-term, alternative F2 

would result in significant, but 

mitigated to be less than significant 

socioeconomic impacts due to the delay 

in implementation of these 

requirements. Once fishermen adjust to 

the new measures, NMFS anticipates 

that there would be no direct 

socioeconomic impacts to fishermen in 

the long-term. 

Sub-alternatives F2 a1, which would 

establish a smooth dogfish quota that is 

equal to the average annual landings 

from 1998–2007, and F2 a2, which 

would establish a smooth dogfish quota 

equal to the maximum annual landing 

between 1998–2007, could potentially 

have negative economic impacts on 

fishermen if the associated quotas 

reflect a significantly underreported 

fishery. If the actual landings are higher 

than these two quotas, fishermen would 

be prevented from fishing at status quo 

levels, and thus experience negative 

economic impacts. Thus, NMFS did not 

select these two sub-alternatives at this 

time. 

Alternative F2a3, which would 

establish a smooth dogfish quota above 

the maximum annual landings between 

1998–2007, would have neutral to 

negative economic impacts. The quota 

of maximum historical annual landings 

plus one standard deviation between the 

years 1998 and 2007 could allow a 

buffer for potential unreported landings 

during that time. However, based on 

public comment, as detailed above, 

NMFS does not believe that this 

alternative would adequately account 

for underreporting. 

Alternative F2a4, the final action, 

would establish a smooth dogfish quota 

above the maximum annual landings 

between 1998–2007 and would have 

neutral economic impacts. The quota of 

maximum historical annual landings 

plus two standard deviations between 

the years 1998 and 2007 would allow a 

buffer for potential unreported landings 

during that time. This would allow the 

fishery to continue at the current rate 

and level into the future without having 

to be shut down prematurely. Thus, 

alternative F2a4 is NMFS’ selected 

alternative. 

There are no negative economic 

impacts anticipated with alternative F2 

b1. There is no charge associated with 

fishermen and researchers obtaining an 

EFP, SRP, display permit, or LOA for 

research or the collection for public 

display. In addition, NMFS would 

establish a smooth dogfish set aside that 

would accommodate current and future 

research activities. Thus, NMFS does 

not anticipate any negative economic 

impacts associated with alternative F2 

b1, and NMFS selects sub-alternative F2 

b1 at this time. 

As with sub-alternative F2 b1, there 

are no negative economic impacts 

anticipated with sub-alternative F2 b2. 

There is no charge associated with 

fishermen and researchers obtaining an 

EFP, SRP, display permit, or LOA for 

research or for the collection for public 

display. In addition, NMFS would 

establish a smooth dogfish set-aside that 

would accommodate current and future 

research activities. Thus, NMFS does 

not anticipate any negative economic 

impacts associated with sub-alternative 

F2 b1. 

Alternative F3, which would 

implement management measures for 

smooth dogfish that complement the 

ASMFC plan, would likely have neutral 

to slightly positive economic impacts. 

Most of the ASMFC regulations would 

not change the smooth dogfish fishery 

as it currently operates, fishermen 

would be required to leave the dorsal fin 

on the smooth dogfish through landing 

from July through February, which 

could change how the fishery operates, 

and therefore, have direct minor, 

adverse socioeconomic impacts in the 

short-term. The extent of these impacts 

will depend on how many smooth 

dogfish are landed between July and 

February of each year. Because this 

requirement began in State waters in 

January 2010, it could mitigate some of 

the economic impacts associated with 

alternative F2 with regard to the 

requirement of having all fins naturally 

attached under the Federal plan. Thus, 

by the start of the fishing season in 

2012, fishermen who have been fishing 

in State waters should have a better idea 

of how to keep all fins naturally 

attached. 

In the short-term, there are no indirect 

socioeconomic impacts expected for 

dealers and fish processors compared to 

the status quo as the fishery would 

continue to operate as it has been with 

the exception of the requirement to 

leave the dorsal fin on from July through 

February. However, if the requirement 

to have the dorsal fin attached during 

certain times of the year affects how 

dealers and processors process smooth 

dogfish, then there could be indirect, 

minor adverse economic impacts on 

smooth dogfish dealers until they learn 

how to process these sharks during July 

through February. However, since 

NMFS considers the requirements for 

gillnet checks and maintaining shark 

fins naturally attached through 

offloading necessary conservation tools 

for protected resources and to prevent 

shark finning, NMFS did not select this 

alternative at this time. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 


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of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity compliance 

guides.’’ The agency shall explain the 

actions a small entity is required to take 

to comply with a rule or group of rules. 

Copies of this final rule and the 

compliance guide are available upon 

request from NMFS (see ADDRESSES). 

Copies of the compliance guide will be 

sent to all Federal shark limited access 

permit holders. 

List of Subjects 

50 CFR Part 600 

Administrative practice and 

procedure, Confidential business 

information, Fisheries, Fishing, Fishing 

vessels, Foreign relations, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Statistics. 

50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Treaties. 

Dated: May 18, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR parts 600 and 635 are 

amended as follows: 

PART 600—MAGNUSON-STEVENS 

ACT PROVISIONS 

■ 1. The authority citation for 50 CFR 

part 600 continues to read as follows: 

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

et seq. 

■ 2. In § 600.1204, paragraphs (g) 

through (l) are revised to read as 

follows: 

§ 600.1204 Shark finning; possession at 

sea and landing of shark fins. 

* * * * * 

(g) A person who owns or operates a 

vessel that has been issued a Federal 

Atlantic commercial shark permit and 

who lands shark in an Atlantic coastal 

port must have all fins weighed in 

conjunction with the weighing of the 

carcasses at the vessel’s first point of 

landing. Such weights must be recorded 

on the ‘‘weighout slips’’ specified in 

§ 635.5(a)(2) of this chapter. 

(h) A person who owns or operates a 

vessel that has been issued a Federal 

Atlantic commercial shark permit and 

who lands shark in or from the U.S. EEZ 

in an Atlantic coastal port must comply 

with regulations found at § 635.30(c) of 

this chapter. 

(i) No person aboard a vessel that has 

been issued a Federal Atlantic 

commercial shark permit shall engage in 

shark finning. 

(j) No person aboard a vessel that has 

been issued a Federal Atlantic 

commercial shark permit shall possess 

on board shark fins without the fins 

being naturally attached to the 

corresponding carcass(es), although 

sharks may be dressed at sea. 

(k) No person aboard a vessel that has 

been issued a Federal Atlantic 

commercial shark permit shall land 

shark fins without the fins being 

naturally attached to the corresponding 

carcass(es). 

(l) A dealer may not purchase shark 

fins, from an owner or operator of a 

fishing vessel issued a Federal Atlantic 

commercial shark permit who lands 

shark in an Atlantic coastal port, unless 

such fins were naturally attached to the 

corresponding carcass at the time of 

landing and their combined wet weight 

is less than 5 percent of the dressed 

weight of the corresponding carcass(es). 

PART 635—ATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 3. The authority citation for 50 CFR 

part 635 continues to read as follows: 

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

1801 et seq. 

■ 4. In § 635.1, paragraph (a) is revised 

to read as follows: 

§ 635.1 Purpose and scope. 

(a) The regulations in this part govern 

the conservation and management of 

Atlantic tunas, Atlantic billfish, Atlantic 

sharks, and Atlantic swordfish under 

the authority of the Magnuson-Stevens 

Act and ATCA. They implement the 

2006 Consolidated Highly Migratory 

Species Fishery Management Plan and 

its amendments. The Atlantic tunas 

regulations govern conservation and 

management of Atlantic tunas in the 

management unit. The Atlantic billfish 

regulations govern conservation and 

management of Atlantic billfish in the 

management unit. The Atlantic 

swordfish regulations govern 

conservation and management of North 

and South Atlantic swordfish in the 

management unit. North Atlantic 

swordfish are managed under the 

authority of both ATCA and the 

Magnuson-Stevens Act. South Atlantic 

swordfish are managed under the sole 

authority of ATCA. The shark 

regulations govern conservation and 

management of sharks in the 

management unit, under the authority of 

the Magnuson-Stevens Act. 

* * * * * 

■ 5. In § 635.2, the definitions of 

‘‘Federal Atlantic commercial shark 

permit,’’ ‘‘Non-blacknose SCS,’’ and 

‘‘Smoothhound sharks’’ are added in 

alphabetical order to read as follows: 

§ 635.2 Definitions. 

* * * * * 

Federal Atlantic Commercial Shark 

Permit means any of the commercial 

shark permits issued pursuant to 

§ 635.4. 

* * * * * 

Non-blacknose SCS means one of the 

species, or part thereof, listed in section 

B of Table 1 in Appendix A to this part 

other than the blacknose shark 

(Carcharhinus acronotus). 

* * * * * 

Smoothhound shark means one of the 

species, or part thereof, listed in section 

E of Table 1 in Appendix A to this part. 

* * * * * 

■ 6. In § 635.4, paragraphs (e) and (g)(2) 

are revised to read as follows: 

§ 635.4 Permits and fees. 

* * * * * 

(e) Shark vessel permits. (1) The 

owner of each vessel used to fish for or 

take Atlantic sharks or on which 

Atlantic sharks are retained, possessed 

with an intention to sell, or sold must 

obtain, in addition to any other required 

permits, at least one of the Federal 

Atlantic commercial shark permits 

described below. A Federal Atlantic 

commercial shark permit is not required 

if the vessel is recreationally fishing and 

retains no more sharks than the 

recreational retention limit specified in 

§ 635.22(c), is operating pursuant to the 

conditions of a shark display or EFP 

issued pursuant to § 635.32, or fishes 

exclusively within State waters. It is a 

rebuttable presumption that the owner 

or operator of a vessel without a permit 

issued pursuant to this part on which 

sharks are possessed in excess of the 

recreational retention limits intends to 

sell the sharks. 

(2) The owner of vessels that fish for, 

take, retain, or possess the Atlantic 

oceanic sharks listed in sections A, B, or 

C of Table 1 of Appendix A with an 

intention to sell must obtain either a 

Federal Atlantic commercial shark 

directed or shark incidental limited 

access permit. The only valid Federal 

commercial shark directed and shark 

incidental limited access permits are 

those that have been issued under the 

limited access program consistent with 

the provisions under paragraphs (l) and 

(m) of this section. 


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(3) A vessel owner issued or required 

to be issued a Federal Atlantic 

commercial shark directed or shark 

incidental limited access permit may 

harvest, consistent with the other 

regulations in this part, any shark 

species listed in sections A, B, or C of 

Table 1 of Appendix A. 

(4) Vessel owners of vessels that fish 

for, take, retain, or possess the Atlantic 

oceanic sharks listed in section E of 

Table 1 of Appendix A with an 

intention to sell must obtain a Federal 

commercial smoothhound permit. A 

smoothhound permit may be issued to 

a vessel that also holds either a directed 

or incidental shark limited access 

permit. 

* * * * * 

(g) * * * 

(2) Shark. A first receiver, as defined 

in § 635.2, of any Atlantic shark listed 

in Table 1 of Appendix A of this part 

must possess a valid dealer permit. 

* * * * * 

■ 7. In § 635.5: 

■ a. Paragraph (a)(4) is removed. 

■ b. Paragraph (a)(5) is redesignated as 

paragraph (a)(4). 

■ c. Paragraph (b)(1)(i) is revised. 

The revision reads as follows: 

§ 635.5 Recordkeeping and reporting. 

* * * * * 

(b) * * * 

(1) * * * 

(i) Dealers that have been issued or 

should have been issued an Atlantic 

tunas, swordfish, and/or sharks dealer 

permit under § 635.4 must submit to 

NMFS all reports required under this 

section. All reports must be speciesspecific and must include information 

about all HMS landed regardless of 

where harvested or whether the vessel 

is Federally permitted under § 635.4. 

For sharks, each report must specify 

both the total fin weight and the total 

dressed weight of the carcass(es) 

separately from each other. In cases 

where different dealers handle the fins 

and the shark meat, either the report 

required in this section or the weighout 

slip required in paragraph (a)(2) of this 

section must indicate which part of the 

sharks being landed (e.g., fins or meat) 

was handled by the dealer submitting 

the report. As stated in § 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. 

* * * * * 

■ 8. In § 635.20, paragraph (e) is revised 

to read as follows: 

§ 635.20 Size limits. 

* * * * * 

(e) Sharks. The following size limits 

change depending on the species being 

caught and the retention limit under 

which they are being caught as specified 

under § 635.22(c). 

(1) All sharks landed under the 

recreational retention limits specified at 

§ 635.22(c) must have the head, tail, and 

fins naturally attached. 

(2) All sharks landed under the 

recreational retention limits specified at 

§ 635.22(c)(2) must be at least 54 inches 

(137 cm) FL. 

(3) There is no size limit for Atlantic 

sharpnose or bonnethead sharks taken 

under the recreational retention limits 

specified at § 635.22(c)(3). 

(4) There is no size limit for 

smoothhound sharks taken under the 

recreational retention limits specified at 

§ 635.22(c)(6). 

* * * * * 

■ 9. In § 635.21, paragraphs (d)(1)(iii)(B) 

and (e)(3) are revised to read as follows: 

§ 635.21 Gear operation and deployment 

restrictions. 

* * * * * 

(d) * * * 

(1) * * * 

(iii) * * * 

(B) Northern South Carolina. 

Bounded on the north by 32°53.5′ N. 

lat.; on the south by 32°48.5′ N. lat.; on 

the east by 78°04.75′ W. long.; and on 

the west by 78°16.75′ W. long. 

* * * * * 

(e) * * * 

(3) Sharks. (i) No person may possess 

a shark in the EEZ taken from its 

management unit without a permit 

issued under § 635.4. No person issued 

a Federal Atlantic commercial shark 

permit under § 635.4 may possess a 

shark taken by any gear other than rod 

and reel, handline, bandit gear, longline, 

or gillnet. No person issued an HMS 

Angling permit or an HMS Charter/ 

headboat permit under § 635.4 may 

possess a shark if the shark was taken 

from its management unit by any gear 

other than rod and reel or handline, 

except that persons on a vessel issued 

both an HMS Charter/Headboat permit 

and a Federal Atlantic commercial shark 

permit may possess sharks taken with 

rod and reel, handline, bandit gear, 

longline, or gillnet if the vessel is not 

engaged in a for-hire fishing trip. 

(ii) No person may fish for sharks 

with a gillnet with a total length of 2.5 

km or more. No person may have on 

board a vessel a gillnet with a total 

length of 2.5 km or more. 

(iii) Persons fishing with gillnet gear 

must comply with the provisions 

implementing the Atlantic Large Whale 

Take Reduction Plan, the Bottlenose 

Dolphin Take Reduction Plan, the 

Harbor Porpoise Take Reduction Plan, 

and any other relevant Take Reduction 

Plan set forth in §§ 229.32 through 

229.35 of this title. If a listed whale is 

taken, the vessel operator must cease 

fishing operations immediately and 

contact NOAA Fisheries as required 

under § 229 of this title. 

(iv) While fishing with a gillnet for or 

in possession of any of the large coastal, 

small coastal, and pelagic sharks listed 

in section A, B, and/or C of Table 1 of 

Appendix A of this part, the gillnet 

must remain attached to at least one 

vessel at one end, except during net 

checks. 

(v) Vessel operators fishing with 

gillnet for or in possession of any of the 

large coastal, small coastal, and pelagic 

sharks listed in sections A, B, and/or C 

of Table 1 of Appendix A of this part are 

required to conduct net checks every 0.5 

to 2 hours to look for and remove any 

sea turtles, marine mammals, or 

smalltooth sawfish. Smalltooth sawfish 

should not be removed from the water 

while being removed from the net. 

* * * * * 

■ 10. In § 635.22, paragraphs (a) and (c) 

are revised to read as follows: 

§ 635.22 Recreational retention limits. 

(a) General. Atlantic HMS caught, 

possessed, retained, or landed under 

these recreational limits may not be sold 

or transferred to any person for a 

commercial purpose. Recreational 

retention limits apply to a longbill 

spearfish taken or possessed shoreward 

of the outer boundary of the Atlantic 

EEZ, to a shark taken from or possessed 

in the Atlantic Ocean including the Gulf 

of Mexico and Caribbean Sea, to a North 

Atlantic swordfish taken from or 

possessed in the Atlantic Ocean, and to 

bluefin and yellowfin tuna taken from 

or possessed in the Atlantic Ocean. The 

operator of a vessel for which a 

retention limit applies is responsible for 

the vessel retention limit and for the 

cumulative retention limit based on the 

number of persons aboard. Federal 

recreational retention limits may not be 

combined with any recreational 

retention limit applicable in State 

waters. 

* * * * * 

(c) Sharks. (1) The recreational 

retention limit for sharks applies to any 

person who fishes in any manner, 

except to persons aboard a vessel that 

has been issued a Federal Atlantic 

commercial shark vessel permit under 

§ 635.4. The retention limit can change 

depending on the species being caught 


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and the size limit under which they are 

being caught as specified under 

§ 635.20(e). If a commercial Atlantic 

shark quota is closed under § 635.28, the 

recreational retention limit for sharks 

and no sale provision in paragraph (a) 

of this section may be applied to 

persons aboard a vessel issued a Federal 

Atlantic commercial shark vessel permit 

under § 635.4, only if that vessel has 

also been issued an HMS Charter/ 

Headboat permit issued under § 635.4 

and is engaged in a for-hire fishing trip. 

(2) Only one shark from the following 

list may be retained per vessel per trip, 

subject to the size limits described in 

§ 635.20(e)(2): any of the non-ridgeback 

sharks listed under heading A.2 of Table 

1 in Appendix A of this part, tiger 

(Galeocerdo cuvier), blue (Prionace 

glauca), common thresher (Alopias 

vulpinus), oceanic whitetip 

(Carcharhinus longimanus), porbeagle 

(Lamna nasus), shortfin mako (Isurus 

oxyricnchus), Atlantic sharpnose 

(Rhizoprionodon terraenovae), finetooth 

(C. isodon), blacknose (C. Acronotus), 

and bonnethead (Sphyrna tiburo). 

(3) In addition to the sharks listed 

under paragraph (c)(2) of this section, 

one Atlantic sharpnose shark and one 

bonnethead shark may be retained per 

person per trip, subject to the size limits 

described in § 635.20(e)(3). 

(4) No prohibited sharks, including 

parts or pieces of prohibited sharks, 

which are listed in section D of Table 1 

of Appendix A to this part, may be 

retained regardless of where harvested. 

(5) Sharks listed in Table 1 of 

Appendix A that are not listed in this 

section, must be released by persons 

aboard a vessel that has not been issued 

a Federal Atlantic commercial shark 

vessel permit under § 635.4. 

(6) The smoothhound sharks listed in 

Section E of Table 1 of Appendix A to 

this part may be retained, and are 

subject only to the size limits described 

in § 635.20(e)(4). 

* * * * * 

■ 11. In § 635.24, paragraphs (a)(4), 

(a)(5), and (a)(6) are revised and 

paragraph (a)(7) is added to read as 

follows: 

§ 635.24 Commercial retention limits for 

sharks and swordfish. 

* * * * * 

(a) * * * 

(4)(i) A person who owns or operates 

a vessel that has been issued a directed 

shark LAP may retain, possess, or land 

pelagic sharks if the pelagic shark 

fishery is open per §§ 635.27 and 

635.28. 

(ii) A person who owns or operates a 

vessel that has been issued a directed 

shark LAP may retain, possess, or land 

blacknose and non-blacknose SCS if the 

blacknose and non-blacknose SCS 

fisheries are open per §§ 635.27 and 

635.28. 

(iii) A person who owns or operates 

a vessel that has been issued an 

incidental shark LAP may retain, 

possess, or land no more than 16 SCS 

and pelagic sharks, combined, per trip, 

if the respective fishery is open per 

§§ 635.27 and 635.28. 

(5) A person who owns or operates a 

vessel that has been issued a Federal 

Atlantic commercial shark permit may 

not retain, possess, land, sell, or 

purchase prohibited sharks, including 

any parts or pieces of prohibited sharks, 

which are listed in section D of Table 1 

of Appendix A to this part under 

prohibited sharks. 

(6) A person who owns or operates a 

vessel that has been issued a Federal 

Atlantic commercial shark permit, and 

who decides to retain sharks, must 

retain, subject to the trip limits, all 

dead, legal-sized, non-prohibited sharks 

that are brought onboard the vessel and 

cannot replace those sharks with sharks 

of higher quality or size that are caught 

later in the trip. Any fish that are to be 

released cannot be brought onboard the 

vessel and must be released in the water 

in a manner that maximizes survival. 

(7) Only persons who own or operate 

a vessel that has been issued a Federal 

commercial smoothhound permit may 

retain, possess, and land smoothhound 

sharks if the smoothhound fishery is 

open per §§ 635.27 and 635.28. 

* * * * * 

■ 12a. In § 635.27, effective June 1, 

2010, paragraphs (b)(1)(i) through (v) are 

revised to read as follows: 

§ 635.27 Quotas. 

* * * * * 

(b) Sharks. (1) Commercial Quotas. 

The commercial quotas for sharks 

specified in this section apply to all 

sharks from the management unit 

harvested by persons fishing 

commercially, regardless of where 

harvested. Sharks taken and landed 

commercially from State waters, even by 

commercial fishermen without Federal 

Atlantic commercial shark permits, 

must be counted against the Federal 

fishery quota. Commercial quotas are 

specified for each of the complexes or 

species listed below. Any sharks landed 

as unclassified will be counted against 

the appropriate complex’s or species’ 

quota based on the species composition 

calculated from data collected by 

observers on non-research trips and/or 

dealer data. No prohibited sharks, 

including parts or pieces of prohibited 

sharks, which are listed under section D 

of Table 1 of Appendix A to this part, 

may be retained except as authorized 

under § 635.32. 

(i) Annual adjustments. NMFS will 

publish in the Federal Register any 

annual adjustments to the base annual 

commercial quotas or the 2008 through 

2012 adjusted base quotas. The base 

annual quota and the adjusted base 

annual quota will not be available, and 

the fishery will not open, until such 

adjustments are published and effective 

in the Federal Register. 

(A) Overharvests. Except as noted in 

this paragraph, if the available 

commercial quota for any shark species 

or complex, as described in this section, 

is exceeded in any fishing year, NMFS 

will deduct an amount equivalent to the 

overharvest(s) from the following 

fishing year or, depending on the level 

of overharvest(s), NMFS may deduct an 

amount equivalent to the overharvest(s) 

spread over a number of subsequent 

fishing years to a maximum of five 

years. If the annual quota for nonsandbar LCS is exceeded in either 

region (see section (b)(1)(iii)(B)) or in 

the research fishery in any fishing year, 

NMFS will deduct an amount 

equivalent to the overharvest(s) from the 

following fishing year or, depending on 

the level of overharvest(s), NMFS may 

deduct an amount equivalent to the 

overharvest(s) spread over a number of 

subsequent fishing years to a maximum 

of five years, in the specific region or 

research fishery where the overharvest 

occurred. If the blue shark quota is 

exceeded, NMFS will reduce the annual 

commercial quota for pelagic sharks by 

the amount that the blue shark quota is 

exceeded prior to the start of the next 

fishing year or, depending on the level 

of overharvest(s), deduct an amount 

equivalent to the overharvest(s) spread 

over a number of subsequent fishing 

years to a maximum of five years. 

(B) Underharvests. Except as noted in 

this paragraph, if an annual quota for 

any shark species or complex, as 

described in this section, is not 

exceeded, NMFS may adjust the annual 

quota depending on the status of the 

stock or quota group. If the annual quota 

for non-sandbar LCS is not exceeded in 

either region or in the research fishery, 

NMFS may adjust the annual quota in 

either region (see paragraph (b)(1)(iii)(B) 

of this section) or the research fishery 

depending on the status of the stock or 

quota group. If the stock (e.g., sandbar 

shark, porbeagle shark, pelagic shark, or 

blue shark) or specific species within a 

quota group (e.g., non-sandbar LCS or 

non-blacknose SCS) is declared to be 

overfished, to have overfishing 

occurring, or to have an unknown 

status, NMFS may not adjust the 

following fishing year’s quota for any 


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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 nonsandbar LCS fishery, underharvests are 

not transferable between regions and/or 

the research fishery. 

(ii) Sandbar sharks. The base annual 

commercial quota for sandbar sharks is 

116.6 mt dw. However, from July 24, 

2008 through December 31, 2012, to 

account for overharvests that occurred 

in 2007, the adjusted base quota is 87.9 

mt dw. Both the base quota and the 

adjusted base quota may be further 

adjusted per paragraph (b)(1)(i) of this 

section. This quota is available only to 

the owners of commercial shark vessels 

that have been issued a valid shark 

research permit and that have a NMFSapproved observer onboard. 

(iii) Non-sandbar LCS. (A) The total 

base quota for non-sandbar LCS is 677.8 

mt dw. This base quota is split between 

the two regions and the shark research 

fishery as follows: Gulf of Mexico = 

439.5 mt dw; Atlantic = 188.3 mt dw; 

and Shark Research Fishery = 50 mt dw. 

However, from July 24, 2008 through 

December 31, 2012, to account for 

overharvests that occurred in 2007, the 

total adjusted base quota is 615.8 mt dw. 

This adjusted base quota is split 

between the regions and the shark 

research fishery as follows: Gulf of 

Mexico = 390.5 mt dw; Atlantic = 187.8 

mt dw; and Shark Research Fishery = 

37.5 mt dw. Both the base quota and the 

adjusted base quota may be further 

adjusted per paragraph (b)(1)(i) of this 

section. 

(B) The commercial quotas for nonsandbar 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°20.4′ N. lat, proceeding due east. 

Any water and land to the south and 

west of that boundary is considered, for 

the purposes of quota monitoring and 

setting of quotas, to be within the Gulf 

of Mexico region. Any water and land 

to the north and east of that boundary, 

for the purposes of quota monitoring 

and setting of quotas, is considered to be 

within the Atlantic region. 

(C) Except for non-sandbar LCS 

landed by vessels issued a valid shark 

research permit with a NMFS-approved 

observer onboard, any non-sandbar LCS 

reported by dealers located in the 

Florida Keys areas or in the Gulf of 

Mexico will be counted against the nonsandbar LCS Gulf of Mexico regional 

quota. Except for non-sandbar LCS 

landed by vessels issued a valid shark 

research permit with a NMFS-approved 

observer onboard, any non-sandbar LCS 

reported by dealers located in the 

Atlantic region will be counted against 

the non-sandbar LCS Atlantic regional 

quota. Non-sandbar LCS landed by a 

vessel issued a valid shark research 

permit with a NMFS-approved observer 

onboard will be counted against the 

non-sandbar LCS research fishery quota 

using scientific observer reports. 

(iv) Small coastal sharks. The base 

annual commercial quota for nonblacknose small coastal sharks is 221.6 

mt dw, unless adjusted pursuant to 

paragraph (b)(1)(i) of this section. The 

base annual commercial quota for 

blacknose sharks is 19.9 mt dw, unless 

adjusted pursuant to paragraph (b)(1)(i) 

of this section. 

(v) Pelagic sharks. The base annual 

commercial quotas for pelagic sharks are 

273 mt dw for blue sharks, 1.7 mt dw 

for porbeagle sharks, and 488 mt dw for 

pelagic sharks other than blue sharks or 

porbeagle sharks, unless adjusted 

pursuant to paragraph (b)(1)(i) of this 

section. 

■ 12b. In § 635.27, paragraphs (b(1)(vi) 

and (b)(2) are revised to read as follows: 

§ 635.27 Quotas. 

* * * * * 

(b) * * * 

(1) * * * 

(vi) Smoothhound sharks. The base 

annual commercial quota for 

smoothhound sharks is 715.5 mt dw, 

unless adjusted pursuant to paragraph 

(b)(1)(i) of this section. 

(2) Public display and non-specific 

research quotas. All sharks collected 

under the authority of a display permit 

or EFP, subject to restrictions at 

§ 635.32, will be counted against the 

following: 

(i) The base annual quota for persons 

who collect non-sandbar LCS, SCS, 

pelagic sharks, blue sharks, porbeagle 

sharks, or prohibited species under a 

display permit or EFP is 57.2 mt ww 

(41.2 mt dw). 

(ii) The base annual quota for persons 

who collect sandbar sharks under a 

display permit is 1.4 mt ww (1 mt dw) 

and under an EFP is 1.4 mt ww (1 mt 

dw). 

(iii) No persons may collect dusky 

sharks under a display permit. 

Collection of dusky sharks for research 

under EFPs and/or SRPs may be 

considered on a case by case basis and 

any associated mortality would be 

deducted from the shark research and 

display quota. 

(iv) The base annual quota for persons 

who collect smoothhound sharks under 

a display permit or EFP is 6 mt ww (4.3 

mt dw). 

* * * * * 

■ 13. In § 635.28, paragraph (b) is 

revised to read as follows: 

§ 635.28 Closures. 

* * * * * 

(b) Sharks. (1) If quota is available as 

specified by a publication in the Federal 

Register, the commercial fishery for the 

shark species or complexes specified in 

§ 635.27(b)(1) will remain open. 

(2) When NMFS calculates that the 

landings for the shark species or 

complexes, as specified in 

§ 635.27(b)(1), has reached or is 

projected to reach 80 percent of the 

available quota as specified in 

§ 635.27(b)(1), NMFS will file for 

publication with the Office of the 

Federal Register a notice of closure for 

that shark species, shark complex, and/ 

or region that will be effective no fewer 

than 5 days from date of filing. From the 

effective date and time of the closure 

until NMFS announces, via the 

publication of a notice in the Federal 

Register, that additional quota is 

available and the season is reopened, 

the fishery for the shark species or shark 

complex and, for non-sandbar LCS, 

region is closed, even across fishing 

years. 

(3) When NMFS calculates that the 

landings for either blacknose sharks or 

non-blacknose SCS has reached or is 

projected to reach 80 percent of the 

available quota as specified in 

§ 635.27(b)(1), NMFS will file for 

publication with the Office of the 

Federal Register a notice of closure for 

the entire SCS fishery, both the 

blacknose and non-blacknose fisheries, 

that will be effective no fewer than 5 

days from date of filing. From the 

effective date and time of the closure 

until NMFS announces, via the 

publication of a notice in the Federal 

Register, that additional quota is 

available and the season is reopened, 

the fishery for non-blacknose SCS and 

blacknose sharks is closed, even across 

fishing years. 

(4) When the fishery for a shark 

species group and/or region is closed, a 

fishing vessel, issued a Federal Atlantic 

commercial shark permit pursuant to 

§ 635.4, may not possess or sell a shark 

of that species group and/or region, 


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30528 Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Rules and Regulations 

except under the conditions specified in 

§ 635.22(a) and (c) or if the vessel 

possesses a valid shark research permit 

under § 635.32 and a NMFS-approved 

observer is onboard. A shark dealer, 

issued a permit pursuant to § 635.4, may 

not purchase or receive a shark of that 

species group and/or region from a 

vessel issued a Federal Atlantic 

commercial shark permit, except that a 

permitted shark dealer or processor may 

possess sharks that were harvested, offloaded, and sold, traded, or bartered, 

prior to the effective date of the closure 

and were held in storage. Under a 

closure for a shark species group, a 

shark dealer, issued a permit pursuant 

to § 635.4 may, in accordance with State 

regulations, purchase or receive a shark 

of that species group if the sharks were 

harvested, off-loaded, and sold, traded, 

or bartered from a vessel that fishes only 

in State waters and that has not been 

issued a Federal Atlantic commercial 

shark permit, HMS Angling permit, or 

HMS Charter/Headboat permit pursuant 

to § 635.4. Additionally, under a closure 

for a shark species group and/or 

regional closure, a shark dealer, issued 

a permit pursuant to § 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 § 635.32) that 

had a NMFS-approved observer on 

board during the trip sharks were 

collected. 

* * * * * 

■ 14. In § 635.30, paragraph (c) is 

revised to read as follows: 

§ 635.30 Possession at sea and landing. 

* * * * * 

(c) Shark. (1) In addition to the 

regulations issued at part 600, subpart 

N, of this chapter, a person who owns 

or operates a vessel issued a Federal 

Atlantic commercial shark permit under 

§ 635.4 must maintain all the shark fins 

including the tail naturally attached to 

the shark carcass until the shark has 

been offloaded from the vessel. While 

sharks are on board and when sharks are 

being offloaded, persons issued a 

Federal Atlantic commercial shark 

permit under § 635.4 are subject to the 

regulations at part 600, subpart N, of 

this chapter. 

(2) A person who owns or operates a 

vessel that has a valid Federal Atlantic 

commercial shark permit may remove 

the head and viscera of the shark while 

on board the vessel. At any time when 

on the vessel, sharks must not have the 

backbone removed and must not be 

halved, quartered, filleted, or otherwise 

reduced. All fins, including the tail, 

must remain naturally attached to the 

shark through offloading. While on the 

vessel, fins may be sliced so that the fin 

can be folded along the carcass for 

storage purposes as long as the fin 

remains naturally attached to the 

carcass via at least a small portion of 

uncut skin. The fins and tail may only 

be removed from the carcass once the 

shark has been landed and offloaded. 

(3) A person who owns or operates a 

vessel that has been issued a Federal 

Atlantic commercial shark permit and 

who lands sharks in an Atlantic coastal 

port, including ports in the Gulf of 

Mexico and Caribbean Sea, must have 

all fins and carcasses weighed and 

recorded on the weighout slips specified 

in § 635.5(a)(2) and in accordance with 

part 600, subpart N, of this chapter. 

Persons may not possess any shark fins 

not naturally attached to a shark carcass 

on board a fishing vessel at any time. 

Once landed and offloaded, sharks that 

have been halved, quartered, filleted, 

cut up, or reduced in any manner may 

not be brought back on board a vessel 

that has been or should have been 

issued a Federal Atlantic commercial 

shark permit. 

(4) Persons aboard a vessel that does 

not have a Federal Atlantic commercial 

shark permit must maintain a shark in 

or from the EEZ intact through landing 

with the head, tail, and all fins naturally 

attached. The shark may be bled and the 

viscera may be removed. 

* * * * * 

■ 15. In § 635.32, paragraph (e)(3) is 

revised to read as follows: 

§ 635.32 Specifically authorized activities. 

* * * * * 

(e) * * * 

(3) Charter permit holders must 

submit logbooks and comply with 

reporting requirements as specified in 

§ 635.5. NMFS will provide specific 

conditions and requirements in the 

chartering permit, so as to ensure 

consistency, to the extent possible, with 

laws of foreign countries, the 2006 

Consolidated HMS FMP and its 

amendments, as well as ICCAT 

recommendations. 

* * * * * 

■ 16. In § 635.69, paragraphs (a)(2) and 

(a)(3) are revised to read as follows: 

§ 635.69 Vessel monitoring systems. 

(a) * * * 

(2) Whenever a vessel issued a 

directed shark LAP, is away from port 

with bottom longline gear on board, is 

located between 33°00′ N. lat. and 

36°30′ N. lat., and the mid-Atlantic 

shark closed area is closed as specified 

in § 635.21(d)(1); or 

(3) Whenever a vessel, issued a 

directed shark LAP, is away from port 

with a gillnet on board from November 

15–April 15. 

* * * * * 

■ 17. In Appendix A to Part 635, Table 

1 of Appendix A to Part 635 is revised 

to read as follows: 

Appendix A [Amended] 

TABLE 1 OF APPENDIX A TO PART

635—OCEANIC SHARKS

A. Large Coastal Sharks 

1. Ridgeback sharks: 

Sandbar, Carcharhinus plumbeus 

Silky, Carcharhinus falciformis 

Tiger, Galeocerdo cuvier 

2. Non-ridgeback sharks: 

Blacktip, Carcharhinus limbatus 

Bull, Carcharhinus leucas 

Great hammerhead, Sphyrna mokarran 

Lemon, Negaprion brevirostris 

Nurse, Ginglymostoma cirratum 

Scalloped hammerhead, Sphyrna lewini 

Smooth hammerhead, Sphyrna zygaena 

Spinner, Carcharhinus brevipinna 

B. Small Coastal Sharks 

Atlantic sharpnose, Rhizoprionodon 

terraenovae 

Blacknose, Carcharhinus acronotus 

Bonnethead, Sphyrna tiburo 

Finetooth, Carcharhinus isodon 

C. Pelagic Sharks 

Blue, Prionace glauca 

Oceanic whitetip, Carcharhinus longimanus 

Porbeagle, Lamna nasus 

Shortfin mako, Isurus oxyrinchus 

Thresher, Alopias vulpinus 

D. Prohibited Sharks 

Atlantic angel, Squatina dumerili 

Basking, Cetorhinus maximus 

Bigeye sand tiger, Odontaspis noronhai 

Bigeye sixgill, Hexanchus nakamurai 

Bigeye thresher, Alopias superciliosus 

Bignose, Carcharhinus altimus 

Caribbean reef, Carcharhinus perezii 

Caribbean sharpnose, Rhizoprionodon 

porosus 

Dusky, Carcharhinus obscurus 

Galapagos, Carcharhinus galapagensis 

Longfin mako, Isurus paucus 

Narrowtooth, Carcharhinus brachyurus 

Night, Carcharhinus signatus 

Sand tiger, Carcharias taurus 

Sevengill, Heptranchias perlo 

Sixgill, Hexanchus griseus 

Smalltail, Carcharhinus porosus 

Whale, Rhincodon typus 

White, Carcharodon carcharias 

E. Smoothhound Sharks 

Smooth dogfish, Mustelus canis 

Florida smoothhound, Mustelus norrisi 

* * * * * 

[FR Doc. 2010–12407 Filed 5–28–10; 8:45 am] 

BILLING CODE 3510–22–P 


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