Final Shark fishing rules adopted

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Tuesday,
June 24, 2008
Part III
Department of
Commerce
National Oceanic and Atmospheric
Administration
50 CFR Parts 600 and 635
Atlantic Highly Migratory Species (HMS);
Atlantic Shark Management Measures;
Final Rule
Atlantic Highly Migratory Species (HMS);
Atlantic Shark Management Measures;
Research Fishery; Notice
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35778 Federal Register / Vol. 73, No. 122 / Tuesday, June 24, 2008 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 600 and 635
[Docket No. 0612242866?8619?02]
RIN 0648?AU89
Atlantic Highly Migratory Species
(HMS); Atlantic Shark Management
Measures
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; fishing season
notification.
SUMMARY: This final rule implements
the management measures described in
Final Amendment 2 to the Atlantic
HMS Fishery Management Plan (FMP).
These management measures are
designed to rebuild overfished species
and prevent overfishing of Atlantic
sharks. These measures include, but are
not limited to, reductions in the
commercial quotas, adjustments to
commercial retention limits,
establishment of a shark research
fishery, a requirement for commercial
vessels to maintain all fins on the shark
carcasses through offloading, the
establishment of two regional quotas for
non-sandbar large coastal sharks (LCS),
the establishment of one annual season
for commercial shark fishing instead of
trimesters, changes in reporting
requirements for dealers (including
swordfish and tuna dealers), the
establishment of additional time/area
closures for bottom longline (BLL)
fisheries, and changes to the authorized
species for recreational fisheries. This
rule also establishes the 2008
commercial quota for all Atlantic shark
species groups. These changes affect all
commercial and recreational shark
fishermen and shark dealers on the
Atlantic Coast.
DATES: This rule is effective on July 24,
2008.
ADDRESSES: For copies of Final
Amendment 2 to the Highly Migratory
Species Fishery Management Plan, the
Small Entity Compliance Guide, or
other related documents, please write to
the Highly Migratory Species
Management Division, 1315 East-West
Highway, Silver Spring, MD 20910, or
call at (301) 713?2347 or fax to
(301)713?1917. Copies are also available
on the HMS website at http://
www.nmfs.noaa.gov/sfa/hms/.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this final rule
may be submitted to the Highly
Migratory Species Management Division
at (301) 713?2347 or by fax to (301)
713?1917 and by e-mail to
[email protected] or fax to
(202) 395?7285.
FOR FURTHER INFORMATION CONTACT:
Michael Clark, Karyl Brewster-Geisz, or
LeAnn Southward Hogan at 301?713?
2347 or by fax at 301?713?1917; or
Jackie Wilson at 240?338?3936.
SUPPLEMENTARY INFORMATION:
Background
The Atlantic shark fisheries are
managed under the authority of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act). The
Consolidated HMS FMP is implemented
by regulations at 50 CFR part 635.
NMFS announced its intent to prepare
an environmental impact statement
(EIS) on November 7, 2006 (71 FR
65086), and held seven scoping
meetings in January 2007 (72 FR 123,
January 3, 2007). As described in the
notice of intent, based on the results of
the 2005 Canadian porbeagle shark
stock assessment, the 2006 dusky shark
stock assessment, and the 2005/2006
LCS stock assessment, NMFS declared
the current status of the LCS complex as
unknown, sandbar sharks as overfished
with overfishing occurring, the Gulf of
Mexico blacktip shark population as not
overfished with overfishing not
occurring, the Atlantic blacktip shark
population as unknown, the dusky
shark as overfished with overfishing
occurring, and porbeagle sharks as
overfished with overfishing not
occurring. Where there are overfished/
overfishing determinations, under the
Magnuson-Stevens Act, NMFS is
required to develop management
measures to rebuild overfished shark
stocks and prevent overfishing.
In March 2007, NMFS presented a
predraft of the Amendment 2 to the
HMS Advisory Panel (72 FR 7860,
February 21, 2007). Based in part on the
comments received during scoping and
from the HMS Advisory Panel, on July
27, 2007, NMFS developed further and
then released the draft Amendment 2 to
the Consolidated HMS FMP and the
associated proposed rule (72 FR 41325;
72 FR 41392). The public comment
period was originally scheduled to end
on October 10, 2007; however, it was
subsequently extended (72 FR 56330,
October 3, 2007) and reopened until
December 17, 2007 (72 FR 64186,
November 15, 2007), to provide the
Regional Fishery Management Councils,
the Interstate Marine Fisheries
Commissions, and the public additional
opportunity to submit comments. In
addition to the written comments
submitted, the public verbally
commented on the proposed rule at five
Regional Fishery Management Council
meetings (New England, Mid-Atlantic,
South Atlantic, Gulf of Mexico, and
Caribbean), an Atlantic States Marine
Fisheries Commission meeting, ten
public hearings, and one HMS Advisory
Panel meeting. The summary of the
comments received and NMFS?
responses are provided below. Based on
these public comments, NMFS reevaluated
the preferred alternatives
identified in the draft Amendment 2,
made changes as outlined in Final
Amendment 2, and now releases its
final rule as modified after considering
public comment.
Consistent with the Consolidated
HMS FMP objectives, the Magnuson-
Stevens Act, and other applicable law,
the objectives for this final rule are to:
(1) implement rebuilding plans for
sandbar, dusky, and porbeagle sharks;
(2) provide an opportunity for the
sustainable harvest of blacktip and other
sharks, as appropriate; (3) prevent
overfishing of Atlantic sharks; (4)
analyze BLL time/area closures and take
necessary action to maintain or modify
the closures, as appropriate; and (5)
improve, to the extent practicable, data
collections or data collection programs.
The rebuilding plans in Final
Amendment 2 to the Consolidated HMS
FMP considers the recommendations in
the stock assessments to be the best
available scientific information on the
status of the species and therefore,
reflects those recommendations. This
includes NMFS establishing rebuilding
time periods that are as short as
possible, taking into account the status
and biology of the stocks and needs of
the fishing communities according to
National Standard (NS) 1 guidelines.
The 2005/2006 stock assessment for
the sandbar shark assumed that sandbar
shark fishing mortality from 2005 to
2007 would be maintained at levels
similar to 2004 (the last year of data
used in the stock assessment was from
2004) and that there would be a
constant total allowable catch (TAC)
between 2008 and 2070. Using these
assumptions, the projections indicated
that sandbar sharks would have a 70?
percent probability of rebuilding by
2070 with a TAC of 220 mt whole
weight (ww) (158 mt dressed weight
(dw))/year and a 50?percent probability
of rebuilding by 2070 with a TAC of 240
mt ww (172 mt dw)/year. As described
in Amendment 2, NMFS used the 70?
percent probability of rebuilding to
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Federal Register / Vol. 73, No. 122 / Tuesday, June 24, 2008 / Rules and Regulations 35779
ensure that the intended results of a
management action are actually realized
given the life history traits of sandbar
sharks.
Under the rebuilding plan, sandbar
sharks are separated from the LCS
complex, and the base commercial
sandbar shark quota is established at
116.6 mt dw/year, which results in a
total sandbar shark TAC of 158.3 mt dw
(220 mt ww) once other sources of
sandbar sharks mortality are included.
For the first five years of this rebuilding
plan (through 2012), to account for 2007
overharvests, the base commercial quota
is reduced to 87.9 mt dw. The adjusted
base quota through 2012 includes the
amount of quota that would have been
available in the 1st season of 2008 had
NMFS not closed the fishery during that
time. In the final rule for the 1st season
of 2008, NMFS calculated that 78 mt dw
(171,959 lb dw) would have been
available (November 29, 2007, 72 FR
67580). However, based on updates to
the reported landings, NMFS adjusted
the 78 mt dw estimate down to 66.2 mt
dw (145,944 lb dw). The actual
commercial quota available in any
particular year may fluctuate based on
overharvests and will be published via
appropriate rulemaking in the Federal
Register.
Projections in the dusky shark stock
assessment indicated that with the agestructured
production model (i.e.,
baseline scenario), dusky sharks could
be rebuilt with a 70?percent probability
by the year 2400. Other projections from
the three other modeling approaches
indicate that rebuilding of dusky sharks
will take between 100?400 years. As
such, in this final rule, NMFS assumes
that the rebuilding timeframe that
would be as short as possible for dusky
sharks would be at least 100 years. The
harvest of dusky sharks has been
prohibited since 2000. Despite this fact,
dusky sharks are still overfished with
overfishing occurring. NMFS believes
this is at least partly due to the fact that
they are caught as bycatch,
predominantly in longline fisheries.
Many of the final actions in this rule,
such as establishing a shark research
fishery with 100 percent observer
coverage and decreasing the retention
limits of non-sandbar large coastal
sharks on all fishing vessels, should
reduce dusky shark bycatch. This
reduction in bycatch should aid in
rebuilding and in collecting additional
information to evaluate dusky shark
status and catches. In the research
fishery, if dusky shark catch is high by
a particular vessel or in a particular
region, NMFS could stop that vessel?s
trip(s) or stop all research trips in that
region and/or time. Additionally, if
NMFS decides, after reviewing the data
from a particular year, NMFS decides
that the catch was too high in the
research fishery, NMFS could adjust the
research protocols and reduce effort or
modify gear requirements, as needed.
For the non-research fishery trips,
NMFS could either reduce the retention
limit in an attempt to reduce effort or
work with the appropriate Regional
Fishery Management Council to reduce
bycatch mortality in certain fisheries, or
consider other measures, as appropriate.
A stock assessment was conducted for
North Atlantic porbeagle sharks in 2005
by the Canadian Department of
Fisheries and Oceans. This assessment
was reviewed by NMFS scientists who
determined it used appropriate
methodologies and all available fishery
and biological data including U.S.
landings and research. As a result of this
review, NMFS determined that the
assessment constituted the best
available science. NMFS also
determined that because the stock
assessed is a unit stock that extends into
U.S. waters, the assessment and its
recommendations were appropriate for
use in U.S. domestic management. The
assessment recommended that there is a
70?percent probability of rebuilding in
100 years if fishing mortality levels are
maintained at or below 0.04 (current
fishing mortality level). Considering this
science, NMFS believes that the
rebuilding timeframe that is as short as
possible is 100 years, which will allow
a TAC of 11.3 mt dw based on current
commercial landings of 1.7 mt dw,
current commercial discards of 9.5 mt
dw, and current recreational landings of
0.1 mt dw. This results in a commercial
porbeagle shark quota of 1.7 mt dw.
This final rule does not contain
detailed information regarding the
management history of Atlantic sharks
or the alternatives considered. Those
issues are discussed in the preamble of
the proposed rule. Additional
information can also be found in the
Final Amendment 2 to the Consolidated
HMS FMP available from NMFS (see
ADDRESSES). This final rule contains
responses to comments received during
the public comment period and a
description of changes to the rule
between proposed and final. The
description of the changes to the
proposed rule can be found after the
response to comment section.
Response to Comments
A large number of individuals and
groups provided both written and verbal
comments on the proposed rule during
the 143-day comment period, 10 public
hearings, 5 Regional Fishery
Management Council meetings, one
Interstate Marine Fisheries Commission
meeting, and one HMS Advisory Panel
meeting. These comments resulted in
numerous changes. The comments are
summarized below together with NMFS?
responses. All of the comments are
grouped together by major issue. There
are 16 major issues: Quotas/Species
Complexes; Porbeagle Sharks as
Prohibited; Retention Limits; Fins on
Requirement; Time Area Closures;
Reporting; Seasons; Regions;
Recreational Measures; Stock
Assessment and Fishery Evaluation
(SAFE) Report and Stock Assessment
Frequency; Research Fishery/Preferred
Alternative; Comments on Other
Alternative Suites and Management
Measures; Science; National Standards;
Economic Impacts; and Miscellaneous.
The comments are numbered
consecutively, starting with 1, at the
beginning of each issue.
1. Quotas/Species Complexes
a. Quotas
Comment 1: The National Marine
Fisheries Service (NMFS) should
consider reducing the fishing mortality
for overfished sandbar sharks.
Response: NMFS is taking steps to
reduce fishing mortality for overfished
sandbar sharks. In particular, NMFS is
reducing the base commercial quota for
sandbar sharks to 116.6 mt dw. This
amount is further reduced to 87.9 mt dw
from 2008 through 2012 to account for
2007 overharvests. This is more than an
80?percent reduction in sandbar shark
landings compared to the status quo
(594.4 mt dw). This base commercial
quota of 116.6 mt dw (which is then
adjusted for overharvest) combined with
estimated discards both within and
outside the commercial shark fishery
(e.g., including other commercial
fisheries and recreational fisheries) is
anticipated to keep sandbar mortality
below the recommended total allowable
catch (TAC) of 158.3 mt dw, which
gives this stock a 70?percent probability
of rebuilding by 2070, as described in
Chapter one of Amendment 2 to the
Consolidated HMS FMP.
Comment 2: NMFS should have
considered Individual Transferable
Quotas (ITQs) for the shark fishery in
this rulemaking. The quota is just too
small for the number of participants.
Individual Fishing Quotas (IFQs) or
ITQs would accomplish the same
objectives as the research fishery. ITQs/
IFQs are the fairest, simplest, most
rational method for this dilemma.
NMFS should switch to an ITQ system
with no trip limit, because a lot of times
fishermen do not weigh the sharks.
Rather, fishermen know their legal trip
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limit based on how they fill their fish
boxes. An ITQ system with no trip limit
would result in fewer dead discards.
Response: ITQs may be beneficial in
many fisheries, and NMFS may consider
developing an IFQ or Limited Access
Privilege Programs (LAPPs) for sharks as
well as other HMS in the future. NMFS
did not consider ITQs to be a reasonable
alternative for this rulemaking given the
strict 1-year timeline to which NMFS
must adhere in setting up a system for
rebuilding a fishery under the
Magnuson-Stevens Act. Furthermore,
overfishing of sharks would have
continued during an extensive ITQ
development phase, which would have
been inconsistent with NMFS? mandate
in section 304(e) of the Magnuson-
Stevens Act to rebuild overfished
stocks. The Magnuson-Stevens Act
states that for stocks identified as
overfished or having overfishing
occurring, the Secretary of Commerce or
the relevant Council, as appropriate,
shall prepare a fishery management
plan, plan amendment, or proposed
regulations for the fishery to end
overfishing in the fishery and rebuild
affected stocks within one year of that
determination. NMFS satisfied that
timing provision: sandbar sharks and
dusky sharks were determined to be
overfished with overfishing occurring
on November 7, 2006 (71 FR 65086),
and NMFS published Draft Amendment
2 to the Consolidated HMS FMP on July
27, 2007 (72 FR 41325). NMFS notes
that the 2006 Magnuson-Stevens Fishery
Conservation and Management
Reauthorization Act amended section
304(e) to include a two-year timing
provision for preparation and
implementation of actions, and the new
provision will be effective July 12, 2009.
Given section 304 and other timing
considerations for this action, NMFS
did not consider an ITQ system as a
reasonable alternative, as it takes several
years to properly design an ITQ system
that appropriately considers the views
of all stakeholders and then to
implement such a system. The general
requirements for ITQs or LAPPs were
included in the 2007 reauthorized
Magnuson-Stevens Act (section 303A).
Overall, two basic things must be done
when implementing a LAPP system: 1)
determine who would receive and who
can hold the harvest privileges; and 2)
define the nature of the harvest
privileges. In addition, NMFS is
currently establishing referenda
requirements for LAPPs (for instance, a
particular allocation scheme must be
approved by a given level of the
industry). In addition, unlike the
research fishery, which would allow an
individual fisherman to target sharks on
a yearly basis, allocation under an ITQ,
IFQ, or LAPP would be for a much
longer time period. Because fishermen
would have these allocations for a long
time, NMFS traditionally works
extensively with all stakeholders to
devise the best allocation scheme
possible for these type of permit
programs through workshops and other
meetings.
Comment 3: NMFS should reconsider
how it calculated the non-sandbar Large
Coastal Shark (LCS) quota. The nonsandbar
LCS quota is low because
fishermen were not targeting nonsandbar
LCS in the past. They were
targeting sandbar sharks. If fishermen
had been targeting non-sandbar LCS,
historical landings would be much
higher, and there would be a larger nonsandbar
LCS quota than is currently
proposed.
Response: NMFS is implementing a
larger non-sandbar LCS base quota of
627.8 mt dw outside the shark research
fishery based on dealer reports rather
than logbooks, as originally proposed.
By using dealer reports, NMFS included
in its calculations landings outside of
NMFS? jurisdiction (e.g., state landings)
and thus maintained consistency in
establishing the quota with data used in
the stock assessments.
In using historical landings reported
by shark dealers to calculate the nonsandbar
LCS quota, NMFS follows the
recommendations of the stock
assessments for Gulf of Mexico and
Atlantic blacktip shark populations.
These stock assessments recommended
keeping catch levels the same in the
Atlantic region and not increasing catch
levels in the Gulf of Mexico region.
Basing quotas on dealer reports would
cap fishing effort at historical levels and
keep stocks in the Gulf of Mexico
healthy and stocks in the Atlantic from
declining. Setting quotas higher than
these levels could have detrimental
effects on shark stocks.
Comment 4: NMFS should consider
allocating the entire sandbar quota to
fishermen participating in the research
fishery because giving a few sandbar
sharks to those outside of the research
fishery would not be worth it. NMFS
should also consider only allowing
fishermen with directed shark permits
to participate in the shark fishery.
Response: NMFS considered the
option discussed in the comment.
Under the final action, NMFS is
allocating the entire 87.9 mt dw
adjusted sandbar quota to the shark
research fishery. NMFS will publish a
Federal Register notice each year,
inviting applications from permit
holders who are willing to participate in
the shark research fishery. Within that
notice, NMFS will publish the selection
criteria that NMFS would use to select
participants for the research fishery. For
example, depending on the research
objectives for a given year, NMFS may
consider applications from a variety of
permit holders, including directed,
incidental, and charter/headboat (CHB)
permit holders, for participation in the
shark research fishery.
Comment 5: NMFS should
acknowledge that the proposed
reduction in quotas is the end of the
directed shark fishery. NMFS should
ensure that sharks are not discarded and
accommodate incidental landings
whenever possible.
Response: The final actions will likely
end the directed shark fishery for
certain species. With the reductions in
the sandbar quota, the reduction in
retention limits, and the prohibition on
retaining sandbar sharks outside the
research fishery, fishermen with
directed shark permits will likely no
longer target LCS outside of the research
fishery. As described above, these
modifications to quotas and retention
limits are necessary to end overfishing
and rebuild overfished stocks.
However, as suggested by the
commenter, NMFS tried to
accommodate incidental landings in
other fisheries. Under the final action,
fishermen can still retain some nonsandbar
LCS while they fish for other
species (e.g., reef fish and snappergrouper).
A fisherman with a directed
shark permit could harvest 33 nonsandbar
LCS per trip and a fisherman
with an incidental shark permit could
land 3 non-sandbar LCS per trip. The
trip limit for directed shark permit
holders is based, in part, on BLL
observer program data from 2005 to
2007. The observer data showed that
fishermen with directed shark permits
fishing for snapper-grouper kept, on
average, 12 sharks per trip. A 33 nonsandbar
trip limit should allow
fishermen with directed permits to
retain sharks (besides sandbar sharks)
they catch while targeting other species
and should minimize discards. The
incidental trip limit is based on what
fishermen with incidental permits
currently retain under the status quo.
NMFS also considered whether
limiting sandbar harvest to the research
fishery would increase dead discards or
if NMFS needed to include a trip limit
for sandbar sharks. Observer data
indicate that fishermen targeting species
other than sharks (i.e., snapper-grouper)
catch, on average, one sandbar shark per
trip. Given that sets on trips not
targeting sharks are typically shorter in
length and duration than sets on trips
targeting sharks, it is anticipated that
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sandbar sharks would remain on the
gear for less time than on trips targeting
shark species, and, thus, would have a
greater likelihood of being released
alive. Therefore, the current trip limits
are not anticipated to result in increased
dead discards.
Comment 6: NMFS needs to take a
more a precautionary approach in
regard to hammerheads, common
thresher sharks, and blacktip sharks in
the Atlantic region, which have an
unknown stock status; NMFS should
follow international organizations such
as the International Union for the
Conservation of Nature (IUCN), and pay
attention to red listed shark species
such as hammerheads, dusky, and sand
tiger sharks, which would likely be
taken (under the quota or as bycatch) in
the fishery and are particularly
depleted. Considering these factors, as
well as NMFS? poor record for shark
recovery to date, NMFS should close the
commercial shark fishery; NMFS should
put a moratorium on LCS fishing in the
Atlantic until the stock status of
Atlantic blacktip sharks is known;
NMFS should only allow fishing for
Atlantic blacktip sharks within
scientifically derived limits when the
population is capable of supporting
such exploitation and bycatch of
prohibited species is demonstrated to be
insignificant.
Response: NMFS is implementing
management measures based on the
latest NMFS-conducted stock
assessments for blacktip, dusky, and
sandbar sharks, and the LCS complex,
which represent the best available peer
reviewed science. NMFS is also
implementing management measures
based on the latest Canadian-based
stock assessment for porbeagle sharks,
which NMFS determined represents the
best available science. The management
measures in this final rule are consistent
with the rebuilding targets established
in these shark stock assessments, and
the rebuilding time periods are as short
as possible, taking into account the
status and biology of the stocks and
needs of the fishing communities
according to NS 1 guidelines.
In general, shark stock status
determinations are based on NMFSconducted
stock assessments. NMFS
uses the Southeast Data, Assessment,
and Review (SEDAR) process for shark
stock assessments, which is open to the
public and uses the Center for
Independent Experts (CIE) to provide
independent peer reviews of assessment
results.
These assessments consider landings
by other countries such as Mexico and
Canada but contain mostly U.S. data.
For shark species that may have
substantial landings outside of the
United States (e.g., blue shark), NMFS
also relies on the results of the Standing
Committee for Research and Statistics
(SCRS) of the International Commission
for the Conservation of Atlantic Tunas
(ICCAT). These stock assessments are
conducted with scientists and data from
throughout the world, including U.S.
scientists and data. In the case of
porbeagle sharks, SCRS determined that
ICCAT did not need to conduct a stock
assessment since Canada had already
conducted one. As such, NMFS
scientists reviewed the Canadian stock
assessment and determined it was
appropriate for use in domestic
management.
To date, NMFS has not relied on
outside organizations, such as the IUCN,
when making stock status
determinations. This is due to the
unknown nature of the data and peer
review methodology applied by these
outside groups.
The latest blacktip shark assessments
recommended not increasing catch
levels in the Gulf of Mexico and keeping
catch levels at historical levels in the
Atlantic. To account for differences in
catch between the Gulf of Mexico and
Atlantic region and to follow
recommendations from the blacktip
shark stock assessments, NMFS is
implementing a Gulf of Mexico nonsandbar
LCS regional quota and an
Atlantic non-sandbar LCS regional
quota based on historical landings from
HMS shark dealer reports from 2003 to
2005. Based on dealer reports, the
Atlantic region has a lower non-sandbar
LCS base quota (188.34 mt dw) than the
Gulf of Mexico region (439.5 mt dw).
Since the Atlantic blacktip shark stock
assessment recommended not changing
landings and did not recommend
prohibiting the harvest of blacktip
sharks, NMFS is implementing this
regional quota based on historical
landings in the Atlantic region.
Unlike the sandbar shark assessment,
which recommended a specific TAC, or
the blacktip stock assessments, which
recommended specific catch levels, the
dusky shark assessment did not give
specific mortality targets. Dusky sharks
have been on the prohibited species list
in 2000; however, there continue to be
dusky shark discards in other fisheries.
NMFS estimated reduction in dusky
shark mortality as a result of sandbar
shark and non-sandbar LCS
management actions. Based on the
reduced quotas and trip limits, NMFS
estimates that dusky shark mortality
will likely be reduced from 33.1 mt dw
to 9.1 mt dw per year. This is a 73?
percent reduction in mortality
compared to the status quo, which
should help rebuild the dusky shark
population and afford dusky sharks
more protection compared to the status
quo.
Finally, NMFS is aware of a separate
external hammerhead shark stock
assessment that is being conducted, but
not aware of separate stock assessments
for common threshers or sand tiger
sharks. Conducting stock assessments at
a species specific level is difficult due
to the lack of species-specific
information collected to conduct stock
assessments for each species of sharks
involved in commercial shark fisheries.
Therefore, species such as hammerhead
sharks and common threshers are
managed within species complexes.
While NMFS is not implementing
management measures for hammerhead
sharks, it is likely that hammerhead
shark landings will be reduced due to
the reduced non-sandbar LCS quota and
retention limits.
NMFS has not considered specific
management actions for common
threshers in this rulemaking, but an
annual quota is in place for the pelagic
shark complex (488 mt dw), and
underharvests of this complex are not
applied to the next season. NMFS may
consider additional management actions
for this species, as warranted, in the
future.
For sand tiger sharks, based on their
high vulnerability to exploitation and to
discourage any future directed fisheries,
NMFS included these sharks on the
prohibited species list in 1997.
Additionally, as with the dusky sharks,
a reduction in discards based on the
sandbar shark and non-sandbar LCS
quotas and management actions taken in
this rulemaking should afford additional
protection for sand tiger sharks.
Comment 7: NMFS should include
landings by states, such as Louisiana
and Alabama, against the Federal shark
quota.
Response: NMFS counts both Federal
and state landings of sharks against the
Federal shark quota since sharks in both
state and Federal waters contribute to
the stocks that are federally managed.
This approach is consistent with that
used by NMFS to manage other Federal
fisheries such as reef fish and snapper
grouper.
Comment 8: NMFS should consider
species-specific quotas. NMFS should
begin with blacktip sharks, since an
assessment was done for them in both
the Gulf of Mexico and Atlantic. This is
because of variation in life history
parameters, different intrinsic rates of
increase, and different catch and
abundance data for all species listed in
each complex. Managing sharks as a
complex is inappropriate.
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Response: NMFS is moving towards
species-specific management, including
species-specific quotas. However, for
some species, NMFS has only limited
data which requires management to be
based on species within a complex.
Based on the latest stock assessment,
NMFS has removed sandbar sharks from
the LCS complex, resulting in a sandbar
shark quota, and a non-sandbar LCS
quota, comprised of blacktip, bull,
smooth hammerhead, scalloped
hammerhead, smooth hammerhead,
lemon, nurse, silky, tiger, and spinner
sharks. The sandbar shark assessment
gave a specific TAC for sandbar sharks,
which resulted in NMFS accounting for
sandbar shark mortality in all fisheries
(both commercial and recreational
sectors) before establishing a base
commercial quota of 116.6 mt dw. In
order to monitor this quota, NMFS
removed sandbar sharks from the LCS
complex and set a separate commercial
quota for this species.
However, while separate blacktip
shark assessments were conducted,
NMFS has decided not to implement
separate blacktip shark quotas because
the shark fishery is a multi-species
fishery. The majority of sharks
harvested in the directed shark fishery,
other than sandbar sharks, are blacktip
sharks. For instance, 82-percent of
sharks caught in the directed shark
fishery in the Gulf of Mexico region are
blacktip sharks (not including sandbar
sharks). The next highest landings were
for hammerhead sharks at 7-percent and
bull sharks at 5-percent. The South
Atlantic region had the same pattern
with the highest percentage of landings,
apart from sandbar sharks, for blacktip
sharks at 72-percent followed by
hammerhead sharks at 14-percent, and
then bull sharks at 4-percent. Because
NMFS did not have species-specific
assessments on other species besides
blacktip and sandbar sharks, and
because the majority of the LCS catch,
not including sandbar sharks, is blacktip
sharks, NMFS created a non-sandbar
LCS complex with its own quota. To
account for differences in catch between
the Gulf of Mexico and Atlantic region,
NMFS is implementing a regional Gulf
of Mexico non-sandbar LCS quota and
an Atlantic non-sandbar LCS quota.
Comment 9: NMFS should split the
sandbar quota between research and
bycatch. This could be a ??phased-in??
quota system where 2/3 of the quota in
the first year would be allocated toward
incidental landings and 1/3 would be
allocated toward research.
Response: In establishing the base
commercial quota of 116 mt dw, NMFS
allocated approximately 42 mt dw to
account for recreational harvest and
dead discards. A further allocation of 1/3
of the base commercial quota for the
research fishery in the first year would
only result in 38.8 mt dw for research.
In addition, due to overharvests in 2007
(see Appendix C in the FEIS for more
details), NMFS is reducing the base
commercial sandbar shark quota to 87.9
mt dw annually for five years. A 1/3
allocation of this reduced base
commercial quota would only leave 29.3
mt dw of sandbar quota available for
research. One third of either the base
annual quota or the adjusted five year
quota would not provide enough trips or
observations to produce statistically
sound data on the several research
questions NMFS intends to address,
especially given that NMFS has already
accounted for dead discards and
recreational harvest in setting the base
commercial quota. In addition, a 2/3
allocation of the sandbar quota would
only allow fishermen (directed or
incidental) to retain a few sandbar
sharks (less than what was proposed
under alternative suite 3, where all
permit holders would have been
allowed to retain sandbar sharks). Thus,
splitting the quota into thirds would not
provide benefits to the fishery or to the
research needed for future stock
assessments. However, as funds are
available, NMFS would have scientific
observers on vessels fishing outside the
research fishery that would monitor
discards of sandbar sharks. If large
number of sandbar dead discards
occurred in the fishery, resulting in
mortality above the recommended TAC,
NMFS would take management action,
as necessary. Additionally, NMFS will
monitor landings of sandbar shark by
state fishermen and deduct those
landings from the base commercial
quota, as needed.
Comment 10: NMFS should not use
the maximum rebuilding time period
(70 years) allowed under the law but
should use a more precautionary
approach. NMFS should not strive for
maximum sustainable yield (MSY) for
blacktip and sandbar sharks. The
proposed sandbar shark quota of 116
metric tons (mt) is too high to ensure
recovery of this population and NMFS
should consider adopting an even lower
final number.
Response: The 2005/2006 stock
assessment for sandbar sharks discussed
three rebuilding scenarios, including: a
rebuilding timeframe if no fishing were
allowed; a TAC corresponding to a 50-
percent probability of rebuilding by
2070; and a TAC corresponding to a 70-
percent probability of rebuilding by
2070. Under no fishing, the stock
assessment estimated that sandbar
sharks would rebuild in 38 years. Under
the NS 1 guidelines, if a species requires
more than 10 years to rebuild, even in
the absence of fishing mortality, then
the specified time period for rebuilding
may be adjusted upward by one mean
generation time. Thus, NMFS added a
generation time (28 years) to the target
year for rebuilding sandbar sharks. The
target year is the number of years it
would take to rebuild the species in the
absence of fishing, or 38 years for
sandbar sharks. NMFS determined that
the rebuilding time that would be as
short as possible for sandbar sharks
would be 66 years, taking into account
the status and biology of the species and
severe economic consequences on
fishing communities. This would allow
sandbar sharks to rebuild by 2070 given
a rebuilding start year of 2004, the last
year of the time series of data used in
the 2005/2006 sandbar shark stock
assessment. Since sharks are caught in
multiple fisheries, to meet the
rebuilding timeframe under a no fishing
scenario, NMFS would have to
implement restrictions in multiple
fisheries to eliminate mortality, such as
entirely shutting down multiple
fisheries to prevent bycatch. If NMFS
were to shut down the shark fishery
completely, such action would likely
have severe economic impacts on the
fishing community and it would likely
result in difficulties for fisheries in
which Councils recommend
management measures as well as
Commission-managed fisheries, which
often catch sharks as bycatch. In
addition, prohibiting all fishing for
sharks would impact NMFS? ability to
do collect data for future management.
The recommended TAC associated
with a 50?percent probability of
rebuilding by 2070 is 172.7 mt dw (or
240 mt whole weight (ww)). However,
given the life history of sharks including
slow growth, late age of maturity, and
relatively small litter sizes, as described
in the 1999 Fishery Management Plan
for Atlantic Tunas, Swordfish, and
Sharks (1999 FMP), a 50?percent
probability of success is minimally
acceptable for sharks. Thus, NMFS
adopted the TAC corresponding to a 70?
percent probability of rebuilding by
2070, or 158.3 mt dw (220 mt ww). This
timeframe is consistent with the
Magnuson-Stevens Act, the NS 1
guidelines at § 600.310, the 2006
Consolidated HMS FMP (which
includes the rebuilding requirements of
the 1999 FMP), and the other national
standards that require NMFS to
consider, among other things, the
economic and social impacts of the
fishery.
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b. Discard Issues
Comment 11: NMFS should consider
sandbar shark discards outside the
research fishery. NMFS should also be
concerned with derby-style fishing with
the reduced quotas and retention limits.
Response: NMFS considered sandbar
shark discards outside the shark
research fishery when it established the
base sandbar shark quota (see Table A.1
in Appendix A of the Final EIS). In
doing so, NMFS set a commercial
sandbar shark quota that, in addition to
considering discards in other fisheries
outside the shark research fishery,
should keep sandbar shark mortality
below the recommended TAC of 158.3
mt dw each year. In order to deter
derby-style fishing outside the shark
research fishery, NMFS reduced the trip
limit for directed shark permit holders
to 33 non-sandbar LCS per trip. This
trip limit should allow the LCS fishery
to stay open longer than it has in the
past while also minimizing, to the
extent practicable, regulatory discards
and derby-style fishing.
Comment 12: NMFS should
acknowledge that dusky shark bycatch
will be an issue both inside and outside
the research fishery. Seventy percent of
dusky sharks are dead at haulback.
Response: Dusky sharks caught as
bycatch under the new management
measures would result in dead discards
to the same extent as current levels.
Currently, most of the dusky shark
discards occur within the directed shark
fishery (on average, 24.5 mt dw per
year), with a total of 33.2 mt dw of
dusky sharks discarded on average per
year. Under the final action, there
would no longer be a directed LCS
fishery. For a limited number of trips,
the few vessels that qualify for
participation in the shark research
fishery will be allowed to direct on LCS.
Depending on the number of trips taken
within the research fishery, NMFS
estimates that yearly dusky shark
discards could be between 0.5 mt dw
(that would be caught during 64 trips
associated with the adjusted sandbar
shark quota) and 0.6 mt dw (that would
be caught during 92 trips associated
with the base sandbar shark quota), with
a total of 9.1 mt dw of dusky shark
discards across all fisheries. This is a
73?percent reduction in dusky shark
discards compared to the status quo.
Comment 13: NMFS should evaluate
if highgrading will be an issue outside
the research fishery.
Response: Under the final action,
highgrading, or the discarding of
smaller, less valuable animals and
retaining only the most valuable
animals to fill a retention limit, is
expressly prohibited. However, because
fishermen aim to have the highest
profits per trip, highgrading can be an
issue whenever trip limits are
implemented.
Based on the latest shark stock
assessments, NMFS is implementing a
reduced shark trip limit from 4,000 lb of
LCS per trip to 33 non-sandbar LCS per
trip for directed permit holders
operating outside the research fishery.
NMFS expects that this reduced trip
limit (approximately one quarter of
what a directed fisherman lands on a
shark trip under the status quo) and the
prohibition on the retention of sandbar
sharks will result in fishermen with
directed shark permits no longer
targeting LCS. Additionally, this trip
limit is higher than the average number
of sharks shark fishermen currently
retain when targeting other species (i.e.,
12 sharks from non-targeted trips).
Thus, NMFS assumes that the reduced
trip limit will allow fishermen with
directed shark permits to keep all
incidentally caught non-sandbar LCS as
they target non-sharks species. Because
fishermen will likely be allowed to keep
all sharks caught when fishing for other
species, the reduced trip limit should
reduce the incentive to engage in
highgrading.
c. Species Complexes
Comment 14: NMFS should
reconsider the use of the term ??nonsandbar
LCS.?? This title is awkward and
might confuse some fishers. The use of
??LCS?? or ??LCS (other than sandbars)?? is
recommended following the same logic
as when referring to ??pelagic sharks??
(which otherwise would be referred to
as non-blue or porbeagle pelagic sharks.)
Response: NMFS considered several
names for the group of LCS that does
not include sandbar sharks. NMFS felt
keeping the title ??LCS?? for the new
complex may be confusing with the
??old?? LCS complex (i.e., the complex
prior to the implementation of the
amendment). NMFS chose ??nonsandbar
LCS?? because it was the most
explicit description of the new complex:
the LCS complex with sandbar sharks
removed.
Comment 15: NMFS is taking
sandbars out of the LCS complex. Where
did NMFS get the authority to remove
a given species from a complex?
Response: NMFS has the authority
under the Magnuson-Stevens Act to
manage all coastal sharks. As part of this
authority, NMFS created the complexes
in 1993 to aid in managing the fishery.
Thus, NMFS may set species-specific
quota as appropriate, given the best
available science. Indeed, NMFS has
often changed the specific species in
each management unit starting with the
creation of five prohibited species in
1997. In this case, the sandbar shark
assessment gave a specific TAC for
sandbar sharks, which resulted in
NMFS establishing a base commercial
quota of 116.6 mt dw. In order to
monitor this quota, NMFS is
establishing a quota for sandbar sharks
that is separate from the quota for the
rest of the LCS complex.
Comment 16: The Director of the
North Carolina Division of Marine
Fisheries stated that NMFS should place
blacktip sharks in the small coastal
shark (SCS) complex.
Response: NMFS is not changing the
composition of the SCS complex in this
rulemaking. Rather, based on the TAC
recommended by the sandbar shark
stock assessment, NMFS is establishing
separate quotas for sandbar sharks and
the non-sandbar LCS. The non-sandbar
LCS complex consists of blacktip, bull,
smooth hammerhead, scalloped
hammerhead, lemon, nurse, silky, tiger,
and spinner sharks. Blacktip sharks are
the species most commonly caught
within this complex. In the 1993 FMP
for Atlantic Sharks, blacktip sharks were
placed within the LCS complex based
on fishery dynamics. Blacktip sharks are
more commonly caught with gear
targeting LCS (i.e., BLL gear) rather than
gear used to target SCS (i.e., gillnet
gear). In addition, the blacktip shark
stock assessments recommended that
blacktip shark landings should not
change or increase from historical catch
levels. By placing blacktip sharks within
the SCS complex, NMFS could either
drastically reduce the blacktip shark
regional quotas if the 454 mt dw SCS
complex quota was not increased (i.e.,
the 454 mt dw quota would include the
quota for blacktip sharks and SCS), or
increase the SCS complex quota to
include historical catch of blacktip
sharks. Placing blacktip sharks within
the SCS complex and increasing the
overall SCS quota could result in
increased catch levels of SCS. These
catch levels may or may not be
sustainable for the SCS complex.
Therefore, at this time, NMFS is not
placing blacktip sharks within the SCS
complex.
d. Over- and Underharvests
Comment 17: NMFS received several
comments regarding transferring quota.
These include: NMFS should consider
transferring unused quota to the next
season; NMFS should not consider
transferring underharvests to the next
season even if species are not overfished
or the status is unknown. This is
because other bodies such as the IUCN
have expressed concern as to some of
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these species; NMFS should subtract
quota overages from the subsequent
season?s quota and disallow carryover of
underharvests to the next season for
populations that are of unknown status,
overfished, or experiencing overfishing.
Response: Under the final action,
NMFS will generally subtract
overhavests that occurred during one
fishing year from the next fishing year
for each individual species or species
group. Depending on the amount of
overharvests, NMFS may decide to split
the overharvests over several years to
allow continuation of the shark research
fishery and to minimize dead discards.
In addition, NMFS will add
underharvests up to 50-percent of the
base quota to the next fishing year for
species or species grouping in which the
stock status of all species is other than
unknown, overfished, or subject to
overfishing. For all other species and
species groups, underharvests will not
be carried. Not applying underharvests
should increase the likelihood that these
stocks rebuild in a timelier manner.
This approach is also used in other
fisheries that NMFS manages, including
bluefin tuna and swordfish.
e. Shark Display and Research Quota
Comment 18: NMFS received several
comments in favor of the preferred
management measures affecting display
quotas under alternative suite 4. These
comments included: NMFS should
allocate 2 mt dw of sandbar sharks from
the overall 60 mt ww display and shark
research quota to public display and
research under exempted fishing
permits (EFPs); the 60 metric tons (mt
ww) quota for display permits and
research should be reduced if it has
never been attained; NMFS should
prohibit dusky sharks for public
display; and, dusky sharks have no
display value.
Response: In order to stay within the
TAC recommended by the sandbar stock
assessment, NMFS is reducing the
commercial sandbar shark quota, and
restricting the number of sandbar sharks
that can be collected under EFPs and
Display Permits. The final action
restricts the sandbar shark collection to
1 mt dw for research under EFPs and 1
mt dw for public display to ensure that
the sandbar shark mortality stays below
the 158.3 mt dw TAC and to ensure that
the shark research fishery has sufficient
quota to produce statistically sound
data. The preferred allocations to the
EFP and display quotas were based on
the 2 mt dw average annual collection
of sandbar sharks under EFPs, scientific
research permits (SRPs), and display
permits from 2000 to 2006. As such,
NMFS does not anticipate that these
restrictions will affect future sandbar
shark collections under these types of
permits.
Due to the severity of the overfished
and overfishing status of dusky sharks,
the collection of dusky sharks for public
display will be prohibited. Aquariums
that currently have dusky sharks will
not be allowed to replace them. In
addition, NMFS will review the
allocation of dusky sharks for research
under EFPs on a case by case basis. This
should allow for research under EFPs on
dusky sharks to continue, as
appropriate.
Comment 19: NMFS received
numerous comments stating that the
existing research/display quotas for
sharks should not be reduced because:
the quota is already small and not
expected to increase in the future; the
EFP quota has never been exceeded; the
collection of sandbar sharks for public
display is not a significant contributing
factor to the reported decline of this
stock; there is a disproportionate
amount of regulation on display permits
compared to other permits for other
fishermen; any reduction in quotas or
restrictions on species, if scientifically
warranted and if based on scientifically
peer-reviewed stock assessments,
should come entirely out of the
commercial quotas which have not been
historically adhered to, and where the
animals are landed dead with zero
conservation or educational value; the
sandbar shark is one of only a handful
of shark species that are exceptionally
hardy and have historically adapted
well to closed aquarium environments.
Response: While the 60 mt ww (or
43.2 mt ww) shark display and research
quota is small compared to the current
commercial 1,017 mt dw LCS quota, the
final action does not change the overall
display and research quota. The final
action, however, does significantly
reduce the commercial quota and
prohibits most commercial fishermen
from harvesting sandbar sharks.
Additionally, the final action prohibits
recreational retention of sandbar sharks.
As described in the response to
Comment 18 in this section, the
quantity of sandbar and dusky sharks
authorized for display and research
(outside of the shark research fishery) is
limited under the final action. For
sandbar sharks, the amount is limited to
what has been landed, on average,
under various EFPs during the past six
years. Therefore, no negative economic
impacts are anticipated with the EFP
allocation of sandbar sharks. EFPs and
display permits will no longer be issued
for the collection of dusky sharks. This
regulation is consistent with the
prohibition on the harvest of dusky
sharks by commercial and recreational
fishermen and, because of the
overfished status and length of time for
rebuilding, is appropriate for dusky
sharks.
Finally, because EFPs exempt
fishermen from certain regulations that
other fishermen must follow, NMFS will
continue to issue EFPS, SRPs, and
display permits only if the applicant has
shown compliance with other relevant
regulations regarding reporting,
notifying enforcement, and tagging
animals.
Comment 20: NMFS should consider
an exemption to allow for the live take
of dusky sharks for public display.
Aquariums need to work on the
husbandry of these sharks.
Response: As discussed in the
response to Comment 18 in this section,
due to the severity of the overfished and
overfishing status of dusky sharks,
dusky sharks will be prohibited for
collection for public display. Moreover,
dusky sharks do not do well in
captivity. Currently, only 13 dusky
sharks per year have been collected
under EFPs. Under the final action,
NMFS will review the allocation of
dusky sharks for research under EFPs on
a case by case basis. This should allow
for research under EFPs on dusky sharks
to continue, as appropriate.
Comment 21: NMFS should explain
how it will prohibit sandbar and dusky
sharks for EFPs and display permits.
Response: EFPs allow fishermen to
harvest species otherwise prohibited by
existing regulations. NMFS is not
prohibiting the collection of sandbar
sharks under the EFP program. Instead,
1 mt dw for research under EFPs and 1
mt dw for public display will be
allocated to fishermen to ensure that the
sandbar shark mortality stays below the
158.3 mt dw TAC. However, due to the
severity of the overfished and
overfishing status of dusky sharks,
dusky sharks will be prohibited for
collection for public display because
they do not do well in captivity. While
NMFS cannot prohibit fishermen from
incidentally catching dusky sharks,
NMFS can prohibit their retention for
public display or research under EFPs
when necessary. NMFS reviews the
allocation of dusky and sandbar sharks
under EFPs and Display Permits on a
case-by-case basis. If research on dusky
sharks is deemed scientifically
necessary, even if it includes mortality,
NMFS may issue the necessary EFPs.
However, such permits must have
scientific merit and the research
conducted by scientific staff in order for
the permit to be issued. As is currently
done for EFPs and Display permits,
NMFS will continue to monitor all
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sources of mortality as a result of EFPs,
Display Permits, Scientific Research
Permits, and Letters of
Acknowledgments, and these data will
be incorporated in future stock
assessments.
Comment 22: NMFS should provide
more information on how they track
landings under EFPs and what happens
to HMS that are collected under EFPs.
Response: NMFS requires persons
who receive EFPs to report the number
of total animals kept, discarded alive,
and discarded dead under the EFP
program. This information is published
in the Federal Register every
November/December in conjunction
with NMFS? request for comments and
Notice of Intent to issue EFPs and
related permits in the subsequent year.
The information is also published in the
annual SAFE Report and may be used
in stock assessments, if appropriate.
Permittees who do not provide this
information are not issued a permit in
the future until all required reporting
from past permits was received. NMFS
does not track what is done with the
animals (e.g., if they are sold to
aquariums) after they have been
collected and landed by the original
permittees.
2. Porbeagle Sharks as Prohibited
Comment 1: NMFS received several
comments in support of prohibiting the
harvest of porbeagle sharks including:
NMFS should prohibit the harvest of
porbeagle sharks because even seasoned
fishermen misidentify porbeagle sharks
as mako sharks; the prohibition on the
possession of porbeagle sharks is long
overdue; NMFS should prohibit the
harvest of porbeagle sharks and
implement stricter management
measures that address porbeagle take,
including bycatch; and NMFS should
prohibit the possession of porbeagle
sharks, however, if bycatch of porbeagle
sharks is allowed, the rule will have
little effect on the overall status of
porbeagle sharks.
Response: As a result of the 2005
Canadian stock assessment for the North
Atlantic porbeagle shark, NMFS has
determined that porbeagle sharks are
overfished, but overfishing is not
occurring Under the final action, the
commercial quota is 1.7 mt dw. NMFS
estimates that commercial discards will
be approximately 9.5 mt dw, and
recreational catch, including landings in
tournaments, will be approximately 0.1
mt dw per year. This TAC of 11.3 mt dw
should increase the likelihood that
fishing mortality will remain low,
allowing the stock to rebuild within 100
years (see rebuilding plan in Chapter 1
of the FEIS). While bycatch of porbeagle
sharks will continue, the majority of
porbeagle sharks caught currently are
discarded alive. For instance, of an
average of 723 porbeagle sharks that
were discarded annually in the PLL
fishery, only 161.3 were discarded dead
whereas 561.6 were discarded alive. The
final action is not expected to change
this discard mortality rate. Therefore,
dead discards should continue to be low
and not negatively affect the stock.
Comment 2: NMFS received several
comments, including comments from
the states of Massachusetts and New
Hampshire, opposing any prohibition of
porbeagle shark retention including:
there is a small historical porbeagle
shark catch in the United States that is
not significantly contributing to the loss
of the porbeagle shark. The U.S.
porbeagle fishery has remained
sustainable under current regulations;
other countries, such as Canada, should
be more responsible for rebuilding this
stock as they contribute more towards
Atlantic-wide fishing mortality; NMFS
should pressure Canadians