[Federal Register: August 1, 2003 (Volume 68, Number 148)]
[Proposed Rules]
[Page 45196-45210]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au03-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 600 and 635
[Docket No. 030721180-3180-01; I.D. 010903D]
RIN 0648-AQ95
Atlantic Highly Migratory Species; Atlantic Shark Management
Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; notice of availability of draft Amendment 1 to
the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks
(Amendment 1); request for comments.
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SUMMARY: This proposed rule and Amendment 1 are necessary to ensure
that shark regulations are based on the results of the 2002 stock
assessments for large coastal sharks (LCS) and small coastal sharks
(SCS). The results of these stock assessments indicate that the LCS
complex continues to be overfished, and overfishing is occurring; that
sandbar sharks are not overfished, but overfishing is occurring; that
blacktip sharks are rebuilt and healthy; that the SCS complex is
healthy; and that finetooth sharks are not overfished, but overfishing
is occurring. Based on these results, NMFS proposes to revise the
rebuilding timeframe for LCS to 27 years from 2004, to change the
commercial regulations, to change the recreational regulations, to
remove the deepwater/other sharks from the management unit, to
establish criteria regarding adding or removing sharks from the
prohibited species group, and to establish a display permit for
fishermen who wish to harvest sharks only for public display. In
Amendment 1, NMFS also proposes updates to essential fish habitat (EFH)
identifications for sandbar, blacktip, finetooth, dusky, and nurse
sharks.
DATES: Comments must be received no later than 5 p.m. on September 30,
2003.
Section 635.69 is currently stayed. However, NMFS intends to lift
the stay and reinstate Sec. 635.69 before the final rule is published.
Public hearings on this proposed rule will be held in August and
September 2003. Specific dates and times for the public hearings will
be announced in a separate document published in the Federal Register.
ADDRESSES: Written comments on the proposed rule should be submitted to
Christopher Rogers, Chief, Highly Migratory Species (HMS) Management
Division (SF/1), National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910. Comments also may be sent via
facsimile (fax) to 301-713-1917. Comments will not be accepted if
submitted via e-mail or Internet. Comments regarding the collection-of-
information requirements contained in this proposed rule should be sent
to the HMS Management Division, 1315 East-West Highway, Silver Spring,
MD 20910, and to the Office of Information and Regulatory Affairs,
Office of Management and Budget (OMB), Washington, DC 20503 (Attention:
NOAA Desk Officer). For copies of the Draft Environmental Impact
Statement/Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (DEIS/RIR/IRFA), contact Karyl Brewster-Geisz at 301-713-2347.
FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz, Heather
Stirratt, or Chris Rilling at 301-713-2347 or fax 301-713-1917 or Greg
Fairclough at 727-570-5741 or fax 727-570-5656.
SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed
under the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act). The Fishery Management Plan for
Atlantic Tunas, Swordfish, and Sharks (HMS FMP), finalized in 1999, is
implemented by regulations at 50 CFR part 635.
Management History
NMFS has managed shark fisheries in the Atlantic Ocean, the Gulf of
Mexico, and the Caribbean Sea under an FMP since 1993. Since 1997,
management actions have been challenged in several lawsuits from
commercial, recreational, and environmental interest groups. In
December 2000, the court approved a settlement agreement regarding two
lawsuits with the commercial industry. Consistent with the court-
approved settlement agreement, among other things, NMFS conducted a
non-NMFS
[[Page 45197]]
peer review of the 1998 LCS stock assessment, conducted a new LCS stock
assessment after considering the results of the peer review, and
conducted a non-NMFS peer review of the new LCS stock assessment.
The peer review of the 1998 LCS stock assessment found that the
scientific conclusions and scientific management recommendations
contained in the 1998 LCS stock assessment were based neither on
scientifically reasonable uses of the appropriate fisheries stock
assessment techniques nor on the best available (at the time of the
1998 LCS stock assessment) biological and fishery information relating
to LCS. Because of this conclusion, NMFS determined that the 1998 LCS
stock assessment was not an appropriate basis for any prior or
subsequent rulemaking and that a new stock assessment was needed in
order to revise the regulations that were based on the 1998 LCS stock
assessment and implemented in the 1999 HMS FMP.
In 2002, NMFS conducted both an SCS stock assessment (67 FR 30879,
May 8, 2002) and an LCS stock assessment (67 FR 69180, October 17,
2002). The SCS stock assessment was the first SCS stock assessment
since 1992. It found that the SCS complex was not overfished and that
overfishing was not occurring. Additionally, it found that Atlantic
sharpnose, bonnethead, and blacknose sharks were not overfished and
that overfishing was not occurring. It also found that finetooth
sharks, while not overfished, are experiencing overfishing.
The 2002 LCS stock assessment found that the LCS complex is still
overfished and that overfishing is still occurring. Additionally, it
found that sandbar sharks are rebuilt but are still experiencing
overfishing and that blacktip sharks are rebuilt and are not
experiencing overfishing. The peer reviews of the 2002 LCS stock
assessment supported the assessment and concluded that the models and
methodology used were appropriate.
On November 15, 2002 (67 FR 69180), NMFS announced its intent to
prepare an environmental impact statement and amend the HMS FMP as a
result of these two stock assessments. In February and March 2003, NMFS
held seven scoping meetings, including one at the Highly Migratory
Species (HMS) Advisory Panel meeting, to discuss and collect comments
on an Issues and Options Paper (68 FR 31987, January 27, 2003). NMFS
received many comments, which were considered to develop the
alternatives considered in the pre-DEIS for draft Amendment 1. On April
21, 2003, NMFS released a pre-draft document to the consulting parties
(Fishery Management Councils, the commissioners and advisory groups of
the International Commission for the Conservation of Atlantic Tunas
(ICCAT), and the HMS and Billfish Advisory Panels established under the
Magnuson-Stevens Act) and subsequently received and considered comments
in developing draft amendment 1 and the proposed rule.
At this time, NMFS is not proposing any specific management
measures for pelagic sharks. The International Commission for the
Conservation of Atlantic Tunas (ICCAT) is planning to conduct a pelagic
shark stock assessment for several pelagic sharks in 2004, and NMFS
will likely consider specific pelagic sharks measures thereafter.
However, to the extent that all shark management is interrelated, it is
possible that the management measures proposed here would affect
pelagic sharks. For instance, while NMFS is not proposing to change the
pelagic shark quota at this time, depending on the results of the 2004
pelagic shark assessment, NMFS may use the same quota basis for setting
the pelagic shark quota in the future.
NMFS is also proposing to remove and reserve Sec. 635.16. This
section of the regulations pertain only to the issuance of initial
limited access permits (ILAPs). At this time, all appeals and lawsuits
regarding ILAPs are complete, and the regulations are no longer
relevant.
The following is a summary of the preferred alternatives analyzed
in the DEIS for Amendment 1 and the revised rebuilding timeframe for
LCS. These elements are arranged in the following sections: LCS
rebuilding timeframe, commercial management measures, recreational
management measures, bycatch reduction measures, and other proposed
management measures.
1. LCS Rebuilding Timeframe
In the 1999 HMS FMP, NMFS established separate rebuilding
timeframes for ridgeback and non-ridgeback LCS. These rebuilding
timeframes, using sandbar and blacktip sharks as proxies for ridgeback
and non-ridgeback LCS, respectively, were based on the projections from
the 1998 LCS stock assessment. As a result of the peer review of the
1998 LCS stock assessment and the change of status in sandbar and
blacktip sharks, NMFS is proposing to revise the timeframe to rebuild
LCS. Because the proposed timeframe is based on the results of the 2002
stock assessment regarding the LCS complex, the proposed timeframe
would be appropriate for overfished LCS regardless of whether NMFS
finalizes the preferred LCS classification alternative, described
below, to aggregate the ridgeback and non-ridgeback LCS species groups,
or takes no action and maintains the ridgeback/non-ridgeback split.
The 2002 LCS stock assessment found that the LCS complex is
overfished and experiencing overfishing. The stock assessment indicated
that a zero landings policy would have, on average, a 68-percent chance
of rebuilding the LCS complex to maximum sustainable yield (MSY) within
10 years. Thus, even prohibiting fishing for 10 years does not quite
give a 70-percent chance of rebuilding the complex to MSY (this is the
level of confidence identified in the HMS FMP associated for shark
management). Assuming a linear relationship between the results at 10
and 20 years, it appears that the LCS complex has approximately a 70-
percent chance of rebuilding to MSY under a zero fishing policy in
approximately 11 years. Given the results of the 2002 LCS stock
assessment and the requirements of the Magnuson-Stevens Act, NMFS
believes that the rebuilding timeframe for the LCS complex should be
the amount of time it would take to rebuild under a zero fishing policy
plus one mean generation time.
Using the average of the several LCS species, the mean generation
time for the LCS complex is approximately 16 years. NMFS used the
average generation time of several species instead of picking one
species because of the wide biological diversity of sharks and because
the stock assessment did not state that there was any one species that
was of particular concern.
Thus, the rebuilding timeframe for the LCS complex is as follows:
11 years (time to reach MSY under a zero fishing policy) + 16 years
(mean generation time of LCS species) = 27 years. The projections in
the 2002 LCS stock assessment indicate that the stock could be rebuilt
27 years from 2002, which is within the same time period projected
under the 1999 HMS FMP. If the measures proposed in this action are
implemented in 2004, the LCS complex would still have approximately a
70-percent chance of rebuilding within 27 years based on the stock
assessment projections.
2. Proposed Commercial Management Measures
The measures analyzed in this category include the following
issues: LCS classification, shark quota administration, shark quota
basis, and minimum size restrictions. The alternatives for these issues
are described below.
[[Page 45198]]
A. LCS Classification
In the 1999 HMS FMP, NMFS finalized measures that split the LCS
complex into two species groups: ridgeback and non-ridgeback LCS. These
groups used sandbar and blacktip sharks as proxies for the ridgeback
and non-ridgeback species, respectively, and, due to the presence of a
ridge on the back of the shark, these groups could be easily
distinguished from one another. Because of this split, NMFS was able to
set different quota levels based on the results of the stock assessment
and close the fisheries for these groups at different times. Due to
delays caused by litigation, this measure was implemented for the first
time in 2003 (67 FR 78990, December 27, 2002).
Since implementation, environmental groups and commercial fishermen
raised multiple concerns regarding closing these groups at different
times and the potential for increased bycatch due to the mixed nature
of the fishery. Additionally, NMFS heard that, because sandbar and
blacktip sharks had similar status designations as the complex in 1998
(i.e., overfished and overfishing occurring), using them as proxies for
other species was acceptable in 1998; however, given their current
status compared with the status of the LCS complex, NMFS should no
longer use those species as proxies because it could lead to further
overfishing on the LCS species that have not yet recovered under the
management program.
After considering these comments, the LCS stock assessment, the
peer reviews, and potential ecological, social, and economic impacts,
NMFS is proposing to re-aggregate the LCS complex and establish one
closure date. While re-aggregating the LCS complex could result in a
lower quota level and, therefore, have additional economic impacts
compared with some of the other alternatives considered, the preferred
alternative reduces the burden of fishermen regarding sorting;
maintains historical fishing practices and, therefore, reduces the
chance of confusion over when the seasons are open or closed; and does
not result in additional regulatory discards. Over time, as the LCS
complex rebuilds, it is likely that quota levels based on the aggregate
could be increased. Additionally, unlike some of the other
classification methods, the aggregate classification fully considers
the ability of all species, including the secondary species, to
rebuild.
NMFS also considered alternatives that would keep the ridgeback/
non-ridgeback LCS split and close the fishery at the same time;
aggregate the LCS complex and close the fishery based on the landings
of the most vulnerable species; and establish more species-specific
quota levels. NMFS did not prefer the first two alternatives because
while they could rebuild the fishery, they could also lead to a
situation where one group's or one species' quota was continually not
being landed. The species-specific alternative was not preferred
because, while the resulting quotas could be higher thus mitigating
economic and social impacts, due to the mixed nature of the fishery and
problems regarding identification of sharks, this alternative would
likely lead to increased discard and bycatch levels.
B. Shark Quota Administration
Since 1993, Atlantic shark fisheries have been managed via two
semi-annual fishing seasons: January through June and July through
December. Under this management measure, the Atlantic Ocean, Gulf of
Mexico, and Caribbean Sea close to shark fishing once the quota is
reached. While this management measure provides a straightforward
administration of the fishing seasons, it does not give NMFS the
flexibility to manage the fisheries based on differences between
regions or based on different pupping seasons for different species. In
order to give NMFS that flexibility, NMFS proposes changing the semi-
annual seasons to trimester seasons and establishing regional quotas.
The quota would be split equally between trimesters, and regional
quotas would be based on historical fishing effort for each species
group. However, in the future, NMFS could change the trimester and
regional quotas in order to ensure that the fishery has the opportunity
to harvest the annual quota and/or to protect pupping seasons, as
necessary. Thus, in the future, if one region usually reaches or
exceeds the quota from one trimester and rarely reaches the quota for
another trimester, NMFS could adjust the quotas for each trimester so
both quotas are reached. Additionally, if one region often exceeds its
annual quota while another region does not, NMFS could decide to adjust
the regional quotas to facilitate the harvest of the entire annual
quota.
Similarly, if a particular species of shark needs additional
protection during its pupping season and/or for its pupping grounds,
NMFS could adjust trimester and regional quotas, as appropriate.
NMFS also considered quarterly seasons but did not prefer that
alternative because under this alternative most pupping seasons would
be split across two different fishing seasons. Thus, under the
preferred trimester alternative, NMFS could, if needed, close one
trimester and stop fishing during the majority of the pupping seasons.
However, under a quarterly season, NMFS would need to close two
quarterly seasons to stop fishing during the majority of pupping
seasons.
C. Shark Quota Basis
As described in the 1993 Shark FMP, the 1993 LCS shark quota was
established based on an estimate of MSY. The pelagic shark quota was
based on average landing estimates because an estimate of MSY was not
available. In 1997, based on a 1996 LCS stock assessment, NMFS,
assuming that a 50-percent reduction in fishing mortality was
approximately a 50-percent reduction in catch, reduced the quota
accordingly. Also in 1997, NMFS established a SCS quota level based on
estimates of MSY from the 1992 stock assessment. As described in the
HMS FMP, NMFS established the 1999 LCS quotas, in part, by reducing the
1997 quotas levels by fishing mortality reductions recommended by the
LCS stock assessment. Thus, in recent years, except for 2003, the
commercial quotas for LCS and SCS have been based on older estimates of
MSY as reduced several times by different recommended levels of fishing
mortality reductions. This recent practice of setting quotas has led to
confusion over where and when in the process discards and state
landings after federal closures should be accounted.
To alleviate this confusion, NMFS is proposing a process that bases
the starting level on the MSY level estimated in the stock assessment.
That level is then reduced, as appropriate, to ensure that optimum
yield (OY) can be harvested from the fishery. For stocks that are not
overfished (e.g., SCS complex), OY is MSY reduced by 25 percent. For
stocks that are overfished (e.g., LCS complex), MSY is reduced by the
amount recommended in the stock assessment, tempered by other
management measures that could decrease shark mortality. The commercial
quota is the proportion of OY that is equal to the proportion of
commercial landings in recent years by federal and state fishermen. The
proportion of recreational landings and dead discards from OY is not
included in the commercial quota. Thus, under this procedure, MSY,
adjusted to ensure OY, is similar to a total allowable catch level and
dead discards are accounted for before the commercial quota is
established. Landings by state fishermen
[[Page 45199]]
after a Federal closure would be counted against the established quota.
Under this process and using the LCS classification alternative
described above, the proposed quota level for LCS is 1,109 metric tons
(mt) dressed weight (dw) and for SCS is 454 mt dw.
The LCS quota levels under this process change, depending on which
classification alternative is used. For example, if the ridgeback and
non-ridgeback LCS split is maintained (the no action classification
alternative), the LCS quota would be 1,109 mt dw for ridgeback LCS and
555 mt dw for non-ridgeback LCS. Total quota levels for LCS using the
MSY basis ranged from 1,109 mt dw for the aggregate (the preferred
classification alternative) to 3,200 mt dw for a more species-specific
classification.
NMFS also considered basing the quota on recent landings adjusted
to account for any recommendations by the stock assessments. The same
method was used in the emergency rule that established quotas for the
2003 fishing year (67 FR 78990, December 27, 2002; extended by 68 FR
31987, May 29, 2003). Under this method, the quota would be considered
the total allowable catch level, and both dead discards and state
landings after a federal closure would be counted against the
established quota. Total quota levels for LCS using the average
landings method ranged from 1,016 mt dw for the aggregate (the
preferred classification alternative) to 1,725 mt dw for a more
species-specific classification. The quota level for SCS using the
average landings method would be 300 mt dw.
D. Minimum Size Restrictions
In the HMS FMP, NMFS established a minimum size limit of 4.5 ft
(137 cm) fork length (FL) for all ridgeback LCS. This size limit was
based on the size of maturity of the sandbar shark and was finalized in
order to reduce fishing mortality of the sandbar shark, particularly on
juveniles, and to mitigate the possible quota reductions that would be
necessary without that size limit. At the time, NMFS noted that this
management measure, which was suspended due to litigation, was a type
of moving time/area closure in that it could offer protection to small
sharks in any area but that it could also result in dead discards of
sandbar sharks and other species. A size limit was not placed on non-
ridgeback LCS because, unlike sandbar sharks, blacktip sharks do not
segregate based on size.
Given the results of the 2002 LCS stock assessment, particularly
the fact that sandbar sharks are no longer overfished, NMFS concludes
that, at this time, a minimum size would not significantly reduce
mortality and would not contribute to rebuilding LCS. This is
especially true given the possibility of increasing dead discards if
the minimum size were kept in place and in consideration of the
proposed time/area closure (described below) to protect juvenile
sandbar and dusky sharks.
NMFS also considered other minimum sizes such as a 5-ft (152-cm) FL
minimum size for all LCS; a 5-ft (152-cm) FL for ridgeback LCS and a
4.5-ft (137-cm) FL for non-ridgeback LCS; and regional minimum sizes.
These alternatives were not preferred due to concerns regarding
identification problems and concerns that they could increase dead
discards, particularly for sharks such as blacktip sharks, that do not
segregate by size.
3. Proposed Recreational Management Measures
The measures analyzed in this category include the following
issues: retention limit, minimum size restrictions, and authorized
gears. The alternatives for these issues are described below.
A. Retention Limit
In the 1999 HMS FMP, NMFS established a recreational retention
limit of one shark of any species per vessel per trip with an
additional allowance of one Atlantic sharpnose shark per person per
trip. This retention limit was established in order to reduce the
harvest of LCS by recreational fishermen by over 80 percent and prevent
an increase in harvest of SCS. Additionally, establishing one limit for
all species, except for Atlantic sharpnose, would simplify the
regulations and improve compliance with the regulations by avoiding
misidentification problems.
NMFS is proposing to maintain this retention limit and also allow
for one bonnethead shark per person per trip. Based on the results of
the SCS stock assessment, NMFS feels that additional mortality of
bonnethead sharks should not result in an overfished condition.
Additionally, bonnethead sharks are easily identified and are not
likely to be confused with juvenile LCS. Allowing the retention of
bonnethead sharks may also afford some economic and social benefits for
tournament or charter/headboat operators. Due to apparent non-
compliance issues, the limit of one shark per vessel per trip has not
led to a reduction in the harvest of LCS by recreational fishermen.
However, with the new permit requirement for recreational shark
fishermen, NMFS believes that compliance and enforcement of the
recreational retention and size limit should increase because the new
permit requirement will allow NMFS to send regulatory information to a
known universe of anglers and improve monitoring of catches. If
compliance does increase, maintaining the one shark per vessel per trip
in combination with the size limit (discussed below) should reduce
fishing mortality to levels recommended in the 2002 LCS stock
assessment and therefore would contribute to rebuilding LCS. If
compliance does not increase, NMFS would consider other alternatives in
the future.
NMFS also considered adding an allowance for one pelagic shark per
vessel per trip; adding an allowance for additional sharks for vessels
participating in registered HMS tournaments or for vessels that have
been issued an HMS Charter/Headboat permit; requiring catch-and-release
fishing for all sharks; and removing all retention limits for sharks.
The first two alternatives were not preferred because NMFS does not
have a current stock assessment for pelagic sharks and therefore could
not analyze the impacts of increasing the retention of pelagic sharks.
Additionally, the second alternative could increase the number of LCS
harvested by anglers, contrary to the rebuilding plan for LCS. The
third alternative was not preferred because NMFS believes that this
alternative may have significant social and economic impacts on the
recreational fishery and increasing compliance on the current
regulations should contribute to rebuilding of LCS. However, if
compliance does not improve, NMFS may need to implement this type of
alternative. The last alternative was not preferred because that would
increase the harvest of LCS, contrary to the rebuilding plan.
B. Minimum Size Restrictions
In the HMS FMP, NMFS established a recreational size of 4.5 ft (137
cm) FL for all sharks except Atlantic sharpnose. This size limit is
based on the age of first maturity for sandbar sharks. While this size
limit essentially created a catch-and-release fishery for SCS, it
allows for landings of LCS and pelagic sharks while protecting juvenile
LCS. NMFS established this size limit to protect juvenile LCS and to
ensure rebuilding of LCS.
In this action, NMFS proposes to maintain the current size limit
and extend the exception for Atlantic sharpnose sharks to bonnethead
sharks. Keeping this size limit would afford some protection to
juvenile LCS, as recommended by the 2002 LCS stock
[[Page 45200]]
assessment. Most bonnethead sharks caught do not reach the current size
limit. Because bonnethead sharks are not experiencing overfishing, are
not overfished, and are easily identified, NMFS does not believe that
the removing the size limit for bonnethead sharks would cause them to
be overfished or would impede the rebuilding of LCS.
As described above, NMFS believes that if compliance with the
retention limit and the size limit increases, that these two management
measures would meet the recreational fishing mortality reductions
needed to rebuild LCS within the proposed timeframe. If compliance is
not increased, NMFS may need to consider other alternatives.
Other alternatives considered for this proposed rule include:
increasing the size limit to 5 ft(152.4 cm) fl; establishing different
size limits for ridgeback LCS and non-ridgeback LCS and other species;
establishing regional size limits for ridgeback and non-ridgeback LCS;
and no size limit. These alternatives were not preferred due to
concerns regarding misidentification of sharks.
C. Authorized Gears
The current regulations state that sharks can only be possessed if
they were caught with handgear, longline, or gillnet. The regulations,
however, do not specify which gears types are considered recreational
and which gear types are commercial. This rule proposes to limit the
allowable gears in the recreational shark fishery to rod and reel and
handline, which are typically used for recreational fishing in HMS
fisheries.
This change would make the allowable gears for the shark
recreational fishery consistent with allowable gears for the Atlantic
tunas and billfish fisheries and could aid in compliance with the
retention and size limits. This limitation is not expected to have any
ecological or economic impacts because the majority of, if not all,
recreational fishermen already use these gears to fish for sharks.
Additionally, these gear types are thought to have lower post-release
mortality rates than some of the commercial gears. Thus, any sharks
caught above the retention limit or under the minimum size would have a
greater chance of surviving after release. Vessels that have been
issued an HMS Charter/Headboat permit and a shark LAP, would be able to
use commercial gear types as long as the vessel is not engaged in a
for-hire recreational trip.
4. Proposed Bycatch Reduction Management Measures
The measures analyzed in this category include the following
issues: gear restrictions and time/area closures. The alternatives for
these issues are described below.
A. Gear Restrictions
Currently, NMFS has several management measures designed to reduce
bycatch and bycatch mortality of sea turtles and marine mammals
including net checks and a time/area closure in the gillnet fishery and
posting handling and release guidelines in the bottom longline fishery.
NMFS is proposing several additional gear restrictions in order to
further reduce bycatch and bycatch mortality in shark fisheries.
i. Strikenet only
NMFS proposes to allow only strikenetting and prohibit drift
gillnetting, in the shark gillnet fishery. While drift gillnets have
been observed to catch several different species of sea turtles and
marine mammals, strikenets have not. Additionally, over 90 percent of
the catch of observed strikenets have been of the target shark species
and only three teleost and ray species have been observed caught.
While switching to strikenet is expensive and may be cost-
prohibitive for some vessels, NMFS knows that three of the six vessels
that are currently in the shark gillnet fishery have used strikenet.
Additionally, once a vessel is using strikenet, because it is so
efficient at catching just the target species, compared to drift
gillnet, reductions in sorting time and time spent fishing may reduce
the overall cost of fishing.
Many shark gillnet fishermen participate in non-HMS drift gillnet
fisheries during a LCS closure. Additionally, many gillnet fishermen in
non-HMS drift gillnet fisheries catch sharks. In order to reduce any
regulatory discards of incidental takes of sharks in non-HMS fisheries
that result from the prohibition of drift gillnet, this proposed
management measure would allow vessels issued a shark LAP to land a
limited number of sharks (5 LCS and 16 SCS and pelagic sharks combined,
per trip), consistent with the quota and closure regulations, if they
are using drift gillnet in a non-HMS fishery.
ii. VMS
NMFS is also proposing a VMS requirement for vessels with gillnet
and bottom longline gear on board. Under this management measure,
owners with strikenet gear on board their vessel and a directed LAP for
sharks would, consistent with the large whale take reduction plan, need
to have a working VMS unit installed whenever the vessel is away from
port from November 15 through March 31 (right whale calving season).
Owners with bottom longline gear on board and a directed LAP for sharks
would need to have a working VMS unit installed whenever the vessel is
operating between 32[deg] N. lat and 38[deg] N. lat from January 1
through July 31 for bottom longline vessels (see proposed time/area
closure discussion below).
To determine whether the entire HMS bottom longline fleet needed
VMS installed, NMFS analyzed the fishing reports of current permit
holders and found that approximately 80 percent of permit holders
fished in an area near to the homeport provided on the application for
their permits. The result was the same regardless of the vessel size.
Thus, because bottom longline fishermen do not appear to fish in many
different areas, NMFS concludes that only fishermen operating in an
area and time around the proposed closed area would need VMS installed
on their vessel. If additional closed areas are implemented or if the
mobility of the fleet increases, NMFS may require VMS on more vessels.
VMS would aid NMFS in enforcing the regulations for time/area
closures while allowing vessels to transit closed areas to reach
homeports and could provide vessels some safety benefits. In the case
of strikenet vessels, VMS may reduce the amount of observer coverage
required in the fishery during that time period. In the case of bottom
longline vessels, VMS could allow vessels with sharks on board to
transit the closed area.
However, installing and maintaining VMS can be expensive. Based on
the cost of VMS for pelagic longline fishermen, the initial
installation of VMS could be approximately $1,900 to $3,250 and each
unit could have an average maintenance cost of $500 per year. To
mitigate these costs, NMFS hopes to develop a range of possible units
and service providers similar to what was done for the pelagic longline
fleet. If NMFS does not implement a time/area closure for bottom
longline fishermen, bottom longline fishermen would not be required to
have VMS on board their vessel.
iii. Other gear requirements
NMFS is also proposing several requirements for bottom longline
fishermen that are similar to the requirements for pelagic longline
fishermen. These include requiring the use of non-stainless steel
corrodible hooks, the possession of release
[[Page 45201]]
equipment (line cutters, dipnets, and, when approved, dehooking
devices), and a requirement that vessels move 1 nautical mile after an
interaction with a marine mammal or a sea turtle. If used correctly,
the hook and release equipment requirements could be effective in
reducing post-release mortality of sea turtles, marine mammals, sharks,
and other species. The cost for this equipment should be minimal and
would be a one-time expense.
Moving after an interaction with a marine mammal or sea turtle
could help prevent additional interactions with protected species. This
management measure could result in additional cost per trip for
fishermen including the cost of fuel; however, because few sea turtles
or marine mammals have been observed caught in the bottom longline
fishery, NMFS does not expect this requirement to affect more than a
few trips for all vessels combined, each year.
In addition to the preferred alternatives outlined in sections i,
ii, and iii, NMFS also considered (1) prohibiting the use of gillnet;
(2) limiting the length of bottom longline gear; (3) limiting the soak
time for bottom longline gear; (4) requiring the use of circle hooks;
(5) requiring the retention of all sharks (i.e, no discards allowed);
and (6) requiring recreational and commercial fishermen to attend
bycatch reduction workshops. The first alternative would have larger
social and economic impacts and would not be much more beneficial in
reducing bycatch than the preferred alternative of strikenet only. The
second and third alternatives could have positive ecological benefits.
However, it would be difficult to ensure compliance and these
alternatives could cause fishermen to fish in an unsafe manner. The
fourth alternative might have positive ecological benefits but NMFS is
not sure of what the impacts of circle hooks would be on the shark
fishery or how many vessels already use circle hooks. While the fifth
alternative would eliminate regulatory discards in the shark fishery,
it could result in fishermen targeting species of sharks on the
prohibited species list that cannot withstand fishing pressure. The
sixth alternative could have ecological benefits but could also have
economic impacts on fishermen.
B. Time/Area Closure
In the HMS FMP, NMFS did not finalize any time/area closures to
protect juvenile sharks because most shark nursery or pupping grounds
are within state waters (outside of NMFS' jurisdiction). Also, the
State of North Carolina had recently closed state waters, which, at the
time of developing the HMS FMP, was estimated to be sufficient to
reduce juvenile sandbar and dusky shark mortality. In addition, the
commercial minimum size finalized in the HMS FMP was considered to be
as effective as a time/area closure.
In this action, NMFS proposes to close an area approximately 38,200
nmi2 off the coasts of Virginia, North Carolina, and South Carolina to
vessels issued directed shark LAPs with bottom longline gear on board
from January 1 through July 31. This area encompasses areas that have
been identified in the HMS FMP and Amendment 1 as EFH for sandbar and
dusky sharks and as an habitat area of particular concern for sandbar
sharks.
Observer data from 1994 through 2003 for the bottom longline
fishery indicates that 85 percent of all dusky sharks observed have
been caught in this area and 92 percent of those were juvenile or
neonate sharks. Additionally, 66 percent of all sandbar sharks observed
have been caught in this area and 54 percent of those were juvenile or
neonate sharks. In areas outside the proposed time/area closure, only 7
percent of sandbar sharks were juveniles, and no neonates were observed
caught.
If effort is redistributed to other open areas in the Atlantic,
analyses using the full observer database indicate that 79 percent
fewer dusky sharks would be caught and 48 percent fewer sandbar sharks
would be caught. In total, using all observer data from 1994 through
2003, the analyses indicate that 27 percent fewer LCS could be caught
as a result of the closure. The estimated reductions change if a more
recent timeframe (i.e., 2000 through 2003) is used. However, due to the
uncertain regulations in the shark fishery from 1999 through the
present as a result of ongoing litigation, NMFS believes that a longer
time period is more indicative of what could happen as a result of the
time/area closure. Given the historically short seasons, it is likely
that shark fishermen would still catch the full quota even with the
closed area. Thus, NMFS expects that the closure would protect dusky
and juvenile sharks in the area but would not reduce the overall LCS
landed.
This closure would likely have large negative economic and social
impacts on the communities, fishermen, and dealers who live near the
closed area. Fishermen who have traditionally fished the proposed
closed area could go out of business or leave the fishery from January
through July of each year, relocate to a different homeport during the
closure, relocate permanently to another homeport, or continue to fish
from their current homeport and transit the closed area. Currently,
there are approximately 34 directed shark LAPs (14 percent of all
directed shark LAPs) issued to fishermen in Virginia, North Carolina,
and South Carolina. These 34 fishermen and their dealers would be
directly affected by the closure. The fishermen who remain in the
fishery would experience additional fishing costs including the cost of
fuel, potentially longer trips, and potentially the need to find a new
dealer. VMS might help minimize the economic and social impacts because
fishermen could transit the area to offload fish. In other words, they
could continue to use their traditional dealers and would not have to
be away from their families or communities for as long as they would if
they could not transit the closed area.
Fishermen and dealers outside the area could experience some
benefits because more of the quota would be caught outside the closed
area. However, there could also be some negative impacts if relocating
fishermen add more pressure to a community that already has many
fishermen.
NMFS also considered other closures including closing all EFH for
neonate and juvenile sharks during pupping season and a closure for
finetooth EFH in St. Andrews Bay area, Florida. The first alternative
was not preferred because it could close large portions of the Economic
Exclusive Zone (EEZ) for large periods of time and therefore could put
many shark fishermen out of business. The second alternative was not
preferred because finetooth EFH is located almost exclusively in state
waters, over which NMFS would not have jurisdiction.
5. Other Proposed Management Measures
The measures analyzed in this category include the following
issues: deepwater and other sharks, prohibited species, and exempted
fishing permits (EFPs). The alternatives for these issues are described
below.
A. Deepwater and Other Sharks
In the 1993 Shark FMP, NMFS decided that some species of sharks did
not need management at that time but that data should be collected on
these species. These species are currently in the group called
``Deepwater and Other Sharks'' and include species such as smooth
dogfish, the catsharks, the lanternsharks, and the gulper sharks.
In the 1999 HMS FMP, NMFS added those species to the management
unit with the express purpose of bringing them under the regulations to
protect
[[Page 45202]]
them from finning. There are no other regulations on these species;
fishermen do not currently need a permit to fish for them and are not
limited in the number of fish that are taken. In most cases, the sharks
in this management group are only taken as bycatch in some trawl
fisheries. With the implementation of the Shark Finning Prohibition Act
(67 FR 6194, February 11, 2002), these sharks are protected against
finning. Given that the finning protection is no longer needed under
the HMS FMP, NMFS is proposing to remove these species from the
management unit. NMFS would continue to collect data for these species.
NMFS does not expect any ecological, economic, or social impacts as a
result of removing these species from the management unit.
B. Prohibited Species
In 1997, NMFS prohibited commercial and recreational
fishermen from possessing or landing five species of sharks: white,
whale, basking, sandtiger, and bigeye sandtiger. These species were
identified as highly susceptible to overexploitation and the
prohibition was seen as a precautionary measure to ensure that directed
fisheries on these species did not develop.
In the 1999 HMS FMP, NMFS prohibited 14 additional species
including, but not limited to, dusky, night, Atlantic angel, Caribbean
reef, longfin mako, and sevengill sharks. These species were added as a
result of a change in policy from one where a species could be caught
unless it was shown to be susceptible to overfishing to one where
possession of certain species was allowed only if that species was
known or expected to be able to withstand specified levels of fishing
mortality. Thus, species that were rarely caught (e.g., Caribbean reef)
or that ones where NMFS had little biological data available (i.e.,
Atlantic angel) were added to the list. Additionally, species such as
dusky or night sharks, that were candidates for listing under the
Endangered Species Act (ESA) or that had become depleted, were also
added to the list.
The 1999 HMS FMP possession limits on prohibited species went into
effect for recreational fishermen in 1999 and for commercial fishermen
on June 21, 2000 (65 FR 38440). Since that time, NMFS has had numerous
questions regarding why certain species are or are not on the list and
requests to add or remove certain species to or from the prohibited
species list. To address these requests, NMFS is proposing a mechanism
where, through the regulatory framework adjustment process in the 1999
HMS FMP, species could be added to or removed from the prohibited
species list.
Under the proposed rule, species could be added to the prohibited
species list if at least two of the following criteria are met: (1)
There is sufficient biological information to indicate the stock
warrants protection, such as indications of depletion or low
reproductive potential or the species is on the ESA candidate list; (2)
the species is rarely encountered or observed caught in HMS fisheries;
(3) the species is not commonly encountered or observed caught as
bycatch in fishing operations; or (4) the species is difficult to
distinguish from other prohibited species (i.e., look-alike issue).
Alternatively, a species could be removed from the prohibited species
list if it meets only one of the criteria. Under the proposed
alternative, NMFS does not expect any ecological, economic, or social
impacts but the alternative could clarify the reason for species being
added or removed and allow for more rapid and adaptive management of
the species.
NMFS is not proposing to change the current prohibited species list
at this time. However, NMFS would continue to issue EFPs or scientific
research permits (SRPs), as appropriate, to fishermen or researchers
who would like to collect information to indicate that a certain
species of shark does or does not meet the above criteria. NMFS may
remove some of the current species in the future using the proposed
mechanism.
NMFS also considered alternatives for adding or removing certain
species from the list including adding finetooth sharks, adding
deepwater and other sharks, returning to the original five species, and
removing dusky sharks. While these alternatives could have merit, NMFS
believes it is not appropriate to change the list until a formal
mechanism is approved.
C. EFPs
Under 50 CFR part 600, NMFS may authorize for limited testing,
public display, and scientific data collection purposes, the harvest of
species managed under an FMP or fishery regulations that would
otherwise be prohibited. This exempted fishing may only be conducted if
authorized by an EFP or SRP. In the 1999 HMS FMP, NMFS established a
60-mt whole weight (ww) shark public display quota for the purpose of
collecting sharks for aquariums and other instances of public display.
To collect sharks under this quota, vessel owners must be issued an
EFP.
In this action, NMFS is proposing an administrative change where
vessel owners who collect sharks or HMS for public display would be
issued a ``public display permit'' instead of an EFP. At this time, the
application and issuance procedures for a public display permit would
be the same as those for an EFP. Sharks taken with a public display
permit would still be counted against the 60 mt ww public display
quota. The conditions of the permit would depend on the proposal
submitted by the vessel owner. Changing the permit name should not have
any ecological, economic, or social impacts but would clarify the
purpose for which the permit was issued.
NMFS may consider other changes to the EFP/SRP/pubic display
permitting system in the future. These changes could include a
requirement for background checks regarding previous fisheries
violations, a mandatory application form, or specific quotas for all
HMS regarding public display or scientific research. NMFS welcomes any
comments on these potential alternatives.
6. EFH Update
Under the Magnuson-Stevens Act, each FMP must describe EFH for the
fishery, minimize to the extent practicable adverse effects on that EFH
caused by fishing, and identify other actions to encourage the
conservation and enhancement of EFH. In the 1999 HMS FMP, NOAA
Fisheries identified EFH for all actively managed species of sharks and
two habitat areas of concern. Under the EFH regulations, NMFS must
review EFH areas every five years and update EFH areas if there is a
change of status or if new information becomes available. Because the
new stock assessments resulted in a change of status for blacktip,
sandbar, and finetooth sharks, NMFS must update EFH for those species.
NMFS is also updating EFH for nurse and dusky sharks due to new
information. NMFS will review EFH for all HMS over the next year.
In updating EFH identifications, NMFS is proposing two methods to
identify EFH: (1) Identify EFH for each species and life stages as
those habitats necessary for spawning, breeding, feeding, or growth to
maturity and (2) increase or decrease existing EFH areas for individual
species based on special needs. The first alternative would help to
ensure identified EFH does not include marginal habitat. The second
alternative would allow changes to the geographic scope of EFH based on
the specific needs of the species. For example, an overfished species
may
[[Page 45203]]
need a greater percentage of habitat identified as EFH to ensure its
ability to rebuild compared to a species that is not overfished. NMFS
also considered identifying EFH based on the entire geographic range of
a species.
To update EFH identified for sandbar, blacktip, finetooth, nurse,
and dusky sharks, NMFS considered updated fishery dependent and
independent data for these species and considered new information
regarding the biology of these species. NMFS also considered changes in
fishing practices and areas since the 1999 HMS FMP. As a result, NMFS
is proposing slight changes to the EFH identified for individual life
stages and slight changes to the size ranges used to define each life
stage. Maps and specific changes are fully described in the DEIS for
Amendment 1.
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.
As required under the Regulatory Flexibility Act, NMFS has prepared
an IRFA. The IRFA examines the impacts of the preferred alternatives
and any significant alternatives to the proposed rule that could
minimize any significant economic impacts on small entities. A summary
of the information presented in the IRFA is below. Amendment 1 provides
further discussion of the economic impacts of all the alternatives
considered. NMFS does not believe that the proposed regulations would
conflict with any relevant regulations, federal or otherwise (5 U.S.C.
603(b)(5)).
NMFS considers all commercial permit holders to be small entities
according to the Small Business Administration's size standard for
defining a small entity (5 U.S.C. 603(b)(3)). NMFS estimates that, as
of October 2002, there are approximately 251 directed shark permit
holders and 376 incidental shark permit holders for a total of 627
commercial permit holders who are authorized to fish for and sell
sharks commercially and who could be affected by the preferred
alternatives outlined in the proposed rule. Only 120 of these vessels
(approximately 20 percent of all permit holders) reported landings of
shark during 2001. These 120 vessels could be affected by all proposed
commercial requirements including managing LCS as one group, the
proposed quota level, regional quotas, trimester quotas, and bycatch
reduction methods. There are 34 permit holders (approximately 5 percent
of all permit holders) located in Virginia, South Carolina and North
Carolina. These permit holders could be directly affected by the
proposed time/area closure in the mid-Atlantic Bight. Additionally,
NMFS knows of fewer than 11 shark fishermen who have used drift gillnet
gear at some point in the past and only six in recent years. These six
vessels could be affected by the shark gillnet gear requirements of the
proposed rule including prohibiting drift gillnet gear while allowing
strikenet gear and requiring VMS during right whale calving season.
The proposed recreational requirements could also affect all
recreational HMS permit holders including HMS Angling category permit
holders (approximately 9,372 as of May 2003) and HMS Charter/Headboat
permit holders (approximately 2,412 as of May 2003) because some of
these permit holders target sharks. While there are a number of permit
holders in these categories, these permit holders can target any HMS;
few actually target sharks.
Other sectors of HMS fisheries such as dealers, processors, bait
houses, and gear manufacturers might be affected by the proposed
regulations, particularly the shift to trimester seasons for commercial
fisheries, reduction in commercial LCS quota/ increase in commercial
SCS quota, and time/area closure off North Carolina during the winter
commercial fishery. However, the proposed rule does not apply directly
to them. Rather it applies only to permit holders and fishermen. As
such, the economic impacts on these other sectors are discussed in
Amendment 1 but not in the IRFA.
Some of the preferred alternatives in this document may result in
additional reporting, recordkeeping, and compliance requirements (5
U.S.C. 603(b)(4)). The proposed rule includes a requirement that would
require approximately six gillnet shark fishing vessels and
approximately 10 directed category bottom longline shark fishing
vessels (22 vessels have reported fishing in the area but 12 of those
would likely already have VMS due to a requirement in the pelagic
longline fishery) to install VMS units at an initial average cost of
approximately $1,900-3,250 ($1,600-2,500 per unit and $300-750
installation fee), an average annual maintenance cost of approximately
$500/year, and approximately $1.44/day for position reports. This
alternative would likely increase costs but should not increase the
needed skill level required for HMS fisheries.
Some of the proposed regulations such as defining the recreational
authorized gear, prohibiting drift gillnet gear, implementing a time/
area closure, installing VMS, obtaining gear to reduce bycatch or
bycatch mortality, and applying for display permits could change
compliance regarding the way and areas in which fishermen fish and set
their gear and could require an increase in the skill level needed to
participate in HMS fisheries. However, only the time/area closure,
installing VMS, and the prohibition on drift gillnet gear would be
likely to have significant negative economic impacts on some permit
holders because these measures have definite expenditures or costs
associated with them. Permit holders that are not directly affected by
the proposed closure could experience some economic benefits as a
result of the closure because more of the quota from January through
July could be harvested in their area. Prohibiting drift gillnet gear
would likely result in negative economic impacts for some of the six
vessels actively fishing in the gillnet fishery, but overall would not
directly affect the vast majority of the shark fishing fleet because
these six vessels make up a small percentage of participants in the
fishery. The other alternatives listed that could change compliance
and/or reporting requirements would likely only have minor, if any,
economic impacts on small entities.
One of the requirements of an IRFA is to describe any alternatives
to the proposed rule which accomplish the stated objectives and which
minimize any significant economic impacts (5 U.S.C. 603 (c)).
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c) (1)-(4))
lists four categories for alternatives that should be discussed. These
categories are: (1) establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities; (2) clarification, consolidation, or
simplification of compliance and reporting requirements under the rule
for such small entities; (3) use of performance rather than design
standards; and (4) exemptions from coverage of the rule for small
entities.
As noted earlier, NMFS considers all permit holders to be small
entities. In order to meet the objectives of this proposed rule,
consistent with the Magnuson-Stevens Act, NMFS cannot exempt small
entities or change the reporting requirements only for small entities.
Additionally, many of the proposed measures such as quotas for the
fishing season, retention limits for the recreational fishery, and gear
restrictions would not be as effective with different compliance and
reporting requirements. Thus, there are no alternatives available under
the first and fourth categories listed above.
[[Page 45204]]
Alternatives under the second and third categories are discussed
below.
The group of proposed measures for commercial minimum size and
quotas was designed to minimize economic impacts incurred on fishermen
while also, consistent with the Magnuson-Stevens Act and other domestic
laws, enhancing equity among user groups, allowing healthy stocks to be
managed at optimum yield, and allowing overfished stocks to rebuild.
For example, eliminating the minimum size could increase profits for
individual fishermen by reducing costs associated with the lengthening
of trips (i.e., fuel, bait, and ice). Maintaining the minimum size
could result in decreased profits due to the costs incurred taking
longer trips and the time taken to sort through the catch. The proposed
measure to aggregate LCS into one management group also simplifies
compliance and reporting requirements under the proposed rule for small
entities.
While NMFS considered other commercial quota-related alternatives
that could, in combination with other alternatives, result in larger
quotas and, therefore, fewer negative economic impacts or greater
profits for individual fishermen. These alternatives included
establishing the LCS quotas on a more species-specific basis,
establishing the LCS and SCS quotas based on recent landings,
maintaining the commercial minimum size, and not establishing regional
quotas. These alternatives could also increase confusion for fishery
participants by establishing several different closure dates and
requiring greater skill at species identification. Additionally, these
alternatives could result in delays in rebuilding LCS, contrary to the
Magnuson-Stevens Act and the goals of the proposed rule.
NMFS is also proposing several management measures designed,
consistent with the Magnuson-Stevens Act, to reduce, to the extent
practicable, bycatch and bycatch mortality of HMS, protected species,
and other fish in shark fisheries. Specifically, the alternative that
prohibits drift gillnet gear and allows strikenet gear is likely to
result in negative economic impacts for a limited number of small
entities (i.e., three of the six vessels actively fishing in the shark
gillnet fishery). Because of the one-time costs involved, switching to
strikenet gear could put these fishermen out of business. However, NMFS
knows that three of these vessels already use strikenet gear and
strikenet gear has almost no bycatch while drift gillnet gear has
interactions with many different species including sharks, fish, and
sea turtles. Once the switch to strikenet is made, it is possible that
profits could increase due to less time taken to sort the catch. No
other measure, other than banning gillnet gear altogether, would be as
effective at minimizing bycatch in the gillnet fishery. The no action
alternative would minimize the economic impacts on individual fishermen
but would not address bycatch issues in this fishery and therefore
would not be consistent with the Magnuson-Stevens Act.
NMFS is proposing a time/area closure for sandbar and dusky shark
nursery and pupping areas off North Carolina during the winter fishery.
This alternative is designed to reduce bycatch of neonate and juvenile
sandbar and dusky sharks and is likely to have significant impacts on
34 permit holders by closing large sections of coastal waters to shark
fishing. This amounts to a direct economic impact on 14 percent of the
directed shark fleet.
During 2001, only 13 permit holders with home ports located in
South Carolina, North Carolina, and Virginia reported shark landings.
These vessels reported gross revenues totaling $351,600 during that
year. Economic analyses indicate that, if effort is not redistributed,
the proposed time/area closure would result in a 4-percent reduction in
total gross revenues for the fishery as a whole and in a 27-percent
reduction of revenues for the small entities directly affected by the
proposed closure. Fishermen would be directly impacted by a reduction
in catch and income from areas that they have traditionally relied
upon. Fishing practices and behavior of fishermen would also be
affected by requiring fishermen to travel further offshore. Due to
greater distances traveled, fishermen would spend more time at sea, and
associated costs of food, fuel, and labor could increase and profits
decrease. This could cause some fishermen to go out of business, move
to new areas, or alter fishing patterns in other ways. This alternative
could result in a change in the distribution of benefits and costs,
with the financial costs of operating in the fishery increasing and
benefits decreasing. However, the preferred alternative may result,
once LCS rebuild, in slight benefits for fishery participants that are
not directly affected by the closure and it minimizes the economic
impacts compared to the other time/area closure alternatives
considered. The no action alternative could also minimize the impacts
but that alternative would not minimize bycatch and bycatch mortality,
to the extent practicable, consistent with the Magnuson-Stevens Act,
and would not protect juvenile sharks as recommended by the LCS stock
assessment. Without the protection of juvenile sharks, rebuilding of
LCS could be delayed, contrary to the provision of the Magnuson-Stevens
Act.
NMFS does not know of any performance standards or design
specifications that would help reduce bycatch of sandbar, dusky,
juvenile, or other sharks in this fishery. However, NMFS could issue
EFPs to fishermen or scientists who want to conduct research on this
issue, similar to what is being done in the Northeast Distant
Statistical Area with the pelagic longline fishery.
NMFS is also proposing to require vessels that use strikenet gear
during right whale calving season, consistent with the large whale take
reduction plan, or bottom longline gear in the south- and mid-Atlantic
regions during the time/area closure to install VMS units. This would
result in increased costs in the short-term. However, in the long-term,
VMS could result in increased revenues by preventing more burdensome
regulations and allowing more fishing time. Additionally, under this
alternative, bottom longline vessels would be able to traverse closed
area and gillnet vessels might require less observer coverage. The VMS
units for the HMS pelagic longline fleet have an initial average cost
of approximately $1,900-3,250 ($1,600-2,500 per unit and $300-750
installation fee), an average annual maintenance cost of approximately
$500/year, and approximately $1.44/day for position reports.
An economic analyses of the impacts associated with VMS
requirements indicate that only 6 percent of the fleet would be
affected and that this would result in a 9-percent reduction in total
gross revenues for fishery as a whole and a one time 31-percent
reduction in total gross revenues for the vessels directly affected by
this proposed requirement as a result of the purchase and installation
of the units. To provide vessel owners with flexibility and help
minimize costs, NMFS would type-approve several different VMS units and
manufacturers for use, similar to the units approved for use in the
pelagic longline fisheries. No VMS units have been type-approved yet
specifically for use in the Atlantic shark fisheries as of this date.
Based on the range of VMS units commercially available, NMFS expects
any VMS unit type-approved for Atlantic shark fisheries to be similar
or identical to those type-approved for the pelagic longline fisheries.
Once the type-approval is complete, it is likely that this alternative
will result in simplification of compliance and reporting requirements
under the proposed rule for such small entities.
[[Page 45205]]
VMS would only be needed if there is a time/area closure in order to
ensure adequate compliance with the closure. Not requiring VMS could
result in inadequate enforcement of a time/area closure that minimizes
bycatch and aids in rebuilding LCS. Thus, not requiring VMS is not
consistent with the objectives of this proposed rule or the Magnuson-
Stevens Act.
The other proposed bycatch measures would require vessels to buy
release equipment or gear that would reduce post-release mortality. In
addition, vessels would be required to move one nautical mile away
immediately after interacting with a protected species. These measures
would likely result in minor economic impacts to small entities,
primarily because the cost associated with purchasing release equipment
is minimal and is a one time cost. The requirement to move one nautical
mile after an interaction with a marine mammal or sea turtle would
likely increase fuel costs due to increased time transiting to another
fishing area and increased time needed to fish if alternate fishing
grounds are not as productive for target species. However, because few
marine mammals or sea turtles have been observed caught, NMFS does not
believe that this requirement would affect more than a few trips for
all vessels combined, each year. Not requiring the release equipment or
movement after a protected species interaction would not minimize
bycatch and bycatch mortality as is required under the Magnuson-Stevens
Act and the Endangered Species Act.
The proposed recreational retention limit (existing size and bag
limit plus one bonnethead shark per person per trip with no minimum
size) was also designed to minimize the economic impacts on
recreational fishermen while also allowing for healthy stocks to be
managed at optimum yield and overfished stocks to rebuild. Because this
alternative relieves a previous restriction by allowing for more sharks
to be harvested, this alternative may increase revenues to charter/
headboats and other small entities who rely on the recreational shark
fishery for income and could increase the willingness to pay and angler
consumer surplus. While some other retention limit alternatives
considered could further relieve restrictions to the recreational
fishery and increase profitability of charter/headboat fishermen, those
alternatives may not allow for overfished LCS to rebuild, as required
under the Magnuson-Stevens Act.
In addition to the management measures described above, NMFS is
also proposing several management measures that are likely to result in
minor, if any, economic costs or benefits on small entities. Some of
these measures may simplify existing compliance and reporting
requirements. These measures are: limiting the authorized gear in the
shark recreational fishery to handline and rod and reel (most fishermen
already use these gear types); removing the species group ``deepwater
and other sharks'' from the management unit and specifying these
species for data collection purposes only; retaining the current 19
prohibited species and establishing criteria for the addition/removal
of other species to/from the prohibited species group; updating
identified EFH; and changing the name of a permit.
This proposed rule contains new collection-of-information
requirements subject to review and approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act (PRA). The following
requirements and estimated times per response have been submitted to
OMB for approval: 4 hours for installation of a VMS, 5 minutes for
completion of a VMS certification statement, 2 hours per year for VMS
maintenance, and 0.3 seconds for an automated position report from a
VMS.
This proposed rule also contains collection-of-information
requirements that have already been approved by OMB under control
number 0648-0471. These requirements and their estimated response times
are 30 minutes for an application for a shark display permit, and 5
minutes for a catch report from a holder of a shark display permit.
Public comment is sought regarding: whether these proposed
collections of information are necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to the HMS
Division and to OMB at the ADDRESSES above.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a 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.
These proposed regulations are not expected to increase endangered
species or marine mammal interaction rates. A Biological Opinion (BiOp)
issued June 14, 2001, concluded that continued operation of the
Atlantic pelagic longline fishery is likely to jeopardize the continued
existence of endangered and threatened sea turtle species under NOAA
Fisheries jurisdiction, and that other HMS fisheries would adversely
affect, but were not likely to jeopardize, the continued existence of
endangered and threatened marine mammal or sea turtle populations. On
July 9, 2002 (67 FR 45393), NOAA Fisheries implemented the reasonable
and prudent alternative required by the BiOp. Regarding the pelagic
longline fishery, these proposed regulations would not have any
additional impact on sea turtles as these actions would not change
pelagic longline fishery regulations and therefore, would not change
pelagic longline fishing effort or patterns. Regarding the shark bottom
longline, gillnet, and recreational fisheries, these proposed
regulations are expected to decrease bycatch and bycatch mortality of
protected species by reducing fishing effort (e.g., reducing the LCS
commercial quota, implementing a bottom longline time and area closure,
expanding the restriction for gillnet vessels to strikenet at all
times, requiring vessel monitoring systems (VMS) on gillnet and bottom
longline vessels to enforce time and area closures, increasing outreach
and enforcement of recreational retention and size limits, and
requiring vessels with bottom longline gear to move 1 nmi after an
interaction) and decreasing post-release mortality (requiring non-
stainless steel hooks, dipnets, line cutters, and dehooking devices).
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
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.
[[Page 45206]]
Dated: July 25, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 600 and 635
are proposed to be 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 Sec. 600.725, section IX of the list of authorized fisheries
and gears in paragraph (v) is revised to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(v) * * *
------------------------------------------------------------------------
Fishery Authorized gear types
------------------------------------------------------------------------
* * * * *
IX. SECRETARY OF COMMERCE
1. Atlantic Tunas, Swordfish, and Sharks .............................
Fisheries (FMP):
A. Swordfish handgear fishery A. Rod and reel, harpoon,
handline, bandit gear
B. Pelagic longline fishery B. Longline
C. Shark gillnet fishery C. Strikenet
D. Shark bottom longline fishery D. Longline
E. Shark handgear fishery E. Rod and reel, handline,
bandit gear
F. Shark recreational fishery F. Rod and reel, handline
G. Tuna purse seine fishery G. Purse seine
H. Tuna recreational fishery H. Rod and reel, handline
I. Tuna handgear fishery I. Rod and reel, harpoon,
handline, bandit gear
J. Tuna harpoon fishery J. Harpoon
2. Atlantic Billfish Fishery (FMP): .............................
Recreational fishery Rod and reel
3. Commercial Fisheries (Non-FMP) Rod and reel, handline,
longline, gillnet, harpoon,
bandit gear, purse seine
* * * * *
------------------------------------------------------------------------
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 Sec. 635.2, the definition of ``Management unit,'' under
paragraph (5), is revised and new definitions for ``Display permit,''
``Mid-Atlantic shark closed area,'' and ``Strikenet or to fish with
strikenet gear'' are added in alphabetical order to read as follows:
Sec. 635.2 Definitions.
* * * * *
Display permit means a permit issued in order to catch and land
sharks for the purpose of public display pursuant to Sec. 635.32.
* * * * *
Management unit means in this part:
* * * * *
(5) For sharks, means all fish of these species in the western
north Atlantic Ocean, including the Gulf of Mexico and the Caribbean
Sea, excluding those species listed in Table 2 of Appendix A.
* * * * *
Mid-Atlantic shark closed area means the Atlantic Ocean area
seaward of the inner boundary of the U.S. EEZ from a point intersecting
the inner boundary of the U.S. EEZ at 37[deg]30' N. lat. near
Wachapreague Inlet, Virginia, and proceeding due east to connect by
straight lines the following coordinates in the order stated:
37[deg]30'N. lat., 74[deg]15' W. long.; 33[deg]00' N. lat., 74[deg]15'
W. long.; then proceeding due west to intersect the inner boundary of
the U.S. EEZ at 33[deg]00' N. lat. near Cape Romain, South Carolina.
* * * * *
Strikenet or to fish with strikenet gear means a gillnet with
webbing of 5 inches or greater stretched mesh that is designed so that,
when it is deployed, it encircles or encloses an area of water either
with the net or by utilizing the shoreline to complete encirclement, or
to fish with such a net and method.
* * * * *
5. In Sec. 635.3, paragraph (d) is revised to read as follows:
Sec. 635.3 Relation to other laws.
* * * * *
(d) An activity that is otherwise prohibited by this part may be
conducted if authorized as scientific research activity, exempted
fishing or exempted educational activity, or for public display, as
specified in Sec. 635.32.
* * * * *
6. In Sec. 635.5, paragraph (e) is revised to read as follows:
Sec. 635.5 Recordkeeping and reporting.
* * * * *
(e) Inspection. Any person authorized to carry out enforcement
activities under the regulations in this part has the authority,
without warrant or other process, to inspect, at any reasonable time,
catch on board a vessel or on the premises of a dealer, logbooks, catch
reports, statistical records, sales receipts, or other records and
reports required by this part to be made, kept, or furnished. An owner
or operator of a fishing vessel that has been issued a permit under
Sec. 635.4 or Sec. 635.32 must allow NMFS or an authorized person to
inspect and copy any required reports and the records, in any form, on
which the completed reports are based, wherever they exist. An agent of
a person issued a vessel or dealer permit under this part, or anyone
responsible for offloading, storing packing, or selling regulated HMS
for such permittee, shall be subject to the inspection provisions of
this section.
* * * * *
Sec. 635.16 [Reserved]
7. Remove and reserve Sec. 635.16.
8. In Sec. 635.20, paragraph (e) is revised to read as follows:
Sec. 635.20 Size limits.
* * * * *
(e) Sharks. All sharks landed under the recreational retention
limits specified at Sec. 635.22(c) must have the head, tail, and fins
attached and be at least 54 inches (137 cm) FL, except that the minimum
size limit does not apply for Atlantic sharpnose sharks or for
bonnethead sharks.
* * * * *
9. In Sec. 635.21, paragraph (d) is redesignated as paragraph (e),
a new paragraph (d) is added, and the newly redesignated paragraphs
(e)(3)(i) through (e)(3)(iv) are revised to read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(d) Bottom longlines. For the purposes of this part, a vessel is
considered to have bottom longline gear on board when a power-operated
longline hauler, a mainline, weights and/or anchors capable of
maintaining contact of the mainline with the ocean bottom, and leaders
(gangions) with hooks are on board. Removal of any one of these
elements constitutes removal of bottom longline gear. If a vessel
issued a permit under this part is in a closed area designated under
paragraph (d)(1) of this section with bottom longline gear on board, it
is a rebuttable presumption
[[Page 45207]]
that fish on board such a vessel were taken with bottom longline in the
closed area.
(1) If bottom longline gear is on board a vessel issued a permit
under this part, persons aboard that vessel may not fish or deploy any
type of fishing gear in the mid-Atlantic shark closed area from January
1 through July 31 each calendar year.
(2) When a marine mammal or sea turtle is hooked or entangled by
bottom longline gear, the operator of the vessel must immediately
release the animal, retrieve the bottom longline gear, and move at
least 1 nm (2 km) from the location of the incident before resuming
fishing. Reports of marine mammal entanglements must be submitted to
NMFS consistent with regulations in Sec. 229.6 of this title.
(3) The operator of a vessel required to be permitted under this
part and that has bottom longline gear on board must:
(i) Undertake the same bycatch mitigation measures as specified in
paragraphs (c)(5)(i), (ii), and (iii)(B) of this section to release sea
turtles, prohibited sharks, and other animals, as appropriate.
(ii) Possess and use a dehooking device that meets the minimum
design standards. The dehooking device must be carried on board and
must be used to remove the hook from any hooked sea turtle, prohibited
shark, or other animal, as appropriate. NMFS will file with the Office
of the Federal Register for publication the minimum design standards
for approved dehooking devices. NMFS may also file with the Office of
the Federal Register for publication any additions and/or amendments to
the minimum design standards.
(e) * * *
(3) * * *
(i) No person issued a shark LAP under Sec. 635.4 may possess a
shark in the EEZ if the shark was taken from its management unit by any
gear other than rod and reel, handline, bandit gear, longline, or
strikenet, except that such sharks taken incidentally while fishing
with drift gillnet may be retained subject to restrictions specified in
Sec. 635.24 (a)(2). No person issued an HMS Angling permit or an HMS
Charter/headboat permit under Sec. 635.4 may possess a shark in the
EEZ 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 shark LAP may possess sharks
taken with bandit gear, longline, or strikenet if the vessel is not
engaged in a for-hire recreational fishing trip.
(ii) No person may fish for sharks with a strikenet 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) Provisions on gear deployment for the southeast U.S. shark
gillnet fishery to implement the Atlantic Large Whale Take Reduction
Plan are set forth in Sec. 229.32(f) of this title.
(iv) While fishing for Atlantic sharks with a strikenet, the
strikenet must remain attached to at least one vessel at one end,
except during net checks.
* * * * *
10. In Sec. 635.22, paragraph (c) is revised as follows:
Sec. 635.22 Recreational retention limits.
* * * * *
(c) Sharks. One shark from either the large coastal, small coastal,
or pelagic group may be retained per vessel per trip, subject to the
size limits described in Sec. 635.20(e), and, in addition, one
Atlantic sharpnose shark and one bonnethead shark may be retained per
person per trip. Regardless of the length of a trip, no more than one
Atlantic sharpnose shark and one bonnethead shark per person may be
possessed on board a vessel. No prohibited sharks listed in table 1(d)
of appendix A to this part may be retained. The recreational retention
limit for sharks applies to a person who fishes in any manner, except
to a person aboard a vessel who has been issued an Atlantic shark LAP
under Sec. 635.4. If an Atlantic shark quota is closed under Sec.
635.28, the recreational retention limit for sharks may be applied to
persons aboard a vessel issued an Atlantic shark LAP under Sec. 635.4,
only if that vessel has also been issued an HMS Charter/Headboat permit
issued under Sec. 635.4 and is engaged in a for-hire trip.
* * * * *
11. In Sec. 635.24, paragraph (a)(2) is revised to read as
follows:
Sec. 635.24 Commercial retention limits for sharks and swordfish.
* * * * *
(a) * * *
(2) Persons who own or operate a vessel that has been issued an
incidental LAP for sharks may retain, possess or land no more than 5
LCS and 16 SCS and pelagic sharks, combined, per trip. Persons aboard a
vessel that has been issued a LAP for shark, that has a drift gillnet
on board, and upon which non-HMS fish constitute not less than 75
percent by weight of the total fish on board or offloaded may retain,
possess, or land no more than 5 LCS and 16 SCS and pelagic sharks,
combined, per trip.
* * * * *
12. In Sec. 635.27, paragraph (b) is revised to read as follows:
Sec. 635.27 Quotas.
* * * * *
(b) Sharks. (1) Commercial quotas. The commercial quotas for sharks
specified in paragraphs (b)(1)(i) through (b)(1)(vi) of this section
apply to sharks harvested from the management unit, regardless of where
harvested. Commercial quotas are specified for each of the management
groups of large coastal sharks, small coastal sharks, and pelagic
sharks. No prohibited sharks listed in table 1(d) of appendix A to this
part may be retained except as authorized under Sec. 635.32.
(i) Fishing seasons. The commercial quotas for large coastal
sharks, small coastal sharks, and pelagic sharks are split between
three fishing seasons: January 1 through April 30, May 1 through August
30, and September 1 through December 31.
(ii) Regions. The commercial quotas for large coastal sharks, small
coastal sharks, and pelagic sharks are split between three regions. The
regions are: Gulf of Mexico, South Atlantic, and North Atlantic. For
the purposes of this section, the Gulf of Mexico region includes all
waters of the U.S. EEZ west and north of the boundary stipulated at 50
CFR 600.105(c). The South Atlantic region includes all waters east of
the Gulf of Mexico up to 36[deg]30' N. lat., including the waters
surrounding the Caribbean. The North Atlantic region includes all
waters north of 36[deg]30' N. lat.
(iii) Large coastal sharks. The annual commercial quota for large
coastal sharks is 1,109 mt dw (unless otherwise specified in the
Federal Register as provided in paragraph (b)(1)(vi) of this section).
This annual quota is split between the regions as follows: 42 percent
to the Gulf of Mexico, 54 percent to the South Atlantic, and 4 percent
to the North Atlantic. The length of each fishing season will be
determined based on the projected catch rates, available quota, and
other relevant factors. At least 30 days prior to the beginning of the
season, NMFS will file with the Office of the Federal Register for
publication the length of each season.
(iv) Small coastal sharks. The annual commercial quota for small
coastal shark is 454 mt dw, (unless otherwise specified in the Federal
Register as provided in paragraph (b)(1)(vi) of this section). This
annual quota is split between the regions as follows: 4 percent to the
Gulf of Mexico, 83 percent to the South Atlantic, and 13 percent to the
North Atlantic.
[[Page 45208]]
(v) Pelagic sharks. The annual commercial quotas for pelagic sharks
are 92 mt dw for porbeagle sharks, 273 mt dw for blue sharks, and 488
mt dw for pelagic sharks other than porbeagle or blue sharks (unless
otherwise specified in the Federal Register as provided in paragraph
(b)(1)(vi) of this section).
(vi) Annual adjustments. (A) NMFS will adjust the next year's
fishing season quotas for large coastal, small coastal, and pelagic
sharks to reflect actual landings during any fishing season in any
particular region. For example, a commercial quota underharvest or
overharvest in the fishing season in one region that begins January 1
will result in an equivalent increase or decrease in the following
year's quota for that region for the fishing season that begins January
1. NMFS will file any adjustment with the Office of the Federal
Register for publication at least 30 days prior to the start of the
next fishing season.
(B) NMFS will reduce the annual commercial quota for pelagic sharks
by the amount that the blue shark quota is exceeded at least 30 days
prior to the start of the next fishing season.
(C) Sharks taken and landed from state waters are counted against
the fishery quota for the applicable region and time period.
(2) Public display and research quota. The annual quota for persons
who collect sharks from any of the management groups under a display
permit or EFP is 60 mt whole weight (43 mt dw). All sharks collected
under the authority of a display permit or EFP, subject to restrictions
at Sec. 635.32, will be counted against this quota.
* * * * *
13. In Sec. 635.28, paragraph (b) is revised to read as follows:
Sec. 635.28 Closures.
* * * * *
(b) Sharks. (1) The commercial fishery for large coastal sharks
will remain open in each region under the fishing seasons and regional
quotas, as specified at Sec. 635.27(b)(1). From the effective date and
time of a season closure in a particular region until additional quota
becomes available, the fishery for large coastal sharks in that
particular region is closed, and sharks of that species group may not
be retained on board a fishing vessel issued a commercial permit
pursuant to Sec. 635.4 in that particular region.
(2) When the fishing season quota for small coastal sharks or
pelagic sharks specified in Sec. 635.27(b)(1) for a particular region
is reached, or is projected to be reached, NMFS will file with the
Office of the Federal Register for publication a notice of closure at
least 14 days before the effective date. From the effective date and
time of the closure until additional quota becomes available, the
fishery in that particular region for the appropriate shark species
group is closed, and sharks of that species group may not be retained
on board a fishing vessel issued a commercial permit pursuant to Sec.
635.4 in that particular region.
(3) When the fishery in a particular region for a shark species
group is closed, a fishing vessel issued an Atlantic Sharks LAP
pursuant to Sec. 635.4 may not possess or sell a shark of that species
group, except under the conditions specified in Sec. 635.22 (a) and
(c), and a permitted shark dealer may not purchase or receive a shark
of that species group from a vessel issued an Atlantic Sharks LAP,
except that a permitted shark dealer or processor may possess sharks
that were harvested, off-loaded, and sold, traded, or bartered, prior
to the effective date of the closure and were held in storage.
* * * * *
14. In Sec. 635.32, paragraph (a) is revised; paragraph (c)(2) is
removed; paragraphs (c)(3) and (c)(4) are redesignated as paragraphs
(c)(2) and (c)(3), respectively; and paragraph (d) is added to read as
follows:
Sec. 635.32 Specifically authorized activities.
(a) General. Consistent with the provisions of Sec. 600.745 of
this chapter, except as indicated in this section, NMFS may authorize
for the conduct of scientific research or the acquisition of
information and data, for the enhancement of safety at sea, for the
purpose of collecting animals for public education or display, or for
investigating the reduction of bycatch, economic discards or regulatory
discards, activities otherwise prohibited by the regulations contained
in this part. Activities subject to the provisions of this section
include, but are not limited to, scientific research resulting in, or
likely to result in, the take, harvest or incidental mortality of
Atlantic HMS, exempted fishing and exempted educational activities, or
programs under which regulated species retained in contravention to
otherwise applicable regulations may be donated through approved food
bank networks. Such activities must be authorized in writing and are
subject to all conditions specified in any letter of acknowledgment,
exempted fishing permit, scientific research permit, or display permit
issued in response to requests for authorization under this section.
For the purposes of all regulated species covered under this part, NMFS
has the sole authority to issue permits, authorizations, and
acknowledgments. If a regulated species landed or retained under the
authority of this section is subject to a quota, the fish shall be
counted against the quota category as specified in the written
authorization. Inspection requirements specified in Sec. 635.5(e) of
this part apply to the owner or operator of a fishing vessel that has
been issued a exempted fishing permit, scientific research permit, or
display permit.
* * * * *
(d) Display permits. (1) For activities consistent with the
purposes of this section and Sec. 600.745(b)(1) of this chapter, NMFS
may issue display permits. Application procedures shall be as indicated
under Sec. 600.745(b)(2) of this chapter, except that NMFS may
consolidate requests for the purposes of obtaining public comment. In
such cases, NMFS may file with the Office of the Federal Register for
publication notification on an annual or, as necessary, more frequent
basis to report on previously authorized public display fishing
activities and to solicit public comment on anticipated public display
fishing requests.
(2) Notwithstanding the provisions of Sec. 600.745 of this chapter
and other provisions of this part, a valid display permit is required
to fish for, take, retain, or possess a shark in or from the Atlantic
EEZ for the purposes of public display under the shark public display
and research quota specified in Sec. 635.27(b)(2). A valid shark
display permit must be on board the harvesting vessel, must be
available when the shark is landed, must be available when the shark is
transported to the display facility, and must be presented for
inspection upon request of an authorized officer. A shark display
permit is valid for the specific time, area, gear, and species
specified on it.
(3) To be eligible for a shark display permit, a person must
provide all information concerning his or her identification, numbers
by species of sharks to be collected, when and where they will be
collected, vessel(s) and gear to be used, description of the facility
where they will be displayed, and any other information that may be
necessary for the issuance or administration of the permit, as
requested by NMFS.
(4) Written reports on fishing activities and disposition of catch
must be submitted to NMFS at an address designated by NMFS, for each
fish collected within 5 days of the collection. An annual written
summary report of all fishing activities and disposition of all fish
collected under
[[Page 45209]]
the permit must also be submitted to NMFS at an address designated by
NMFS. NMFS will provide specific conditions and requirements,
consistent with the Fishery Management Plan for Atlantic Tunas,
Swordfish, and Sharks in the display permit.
* * * * *
15. In Sec. 635.34, paragraph (b) is revised and paragraph (c) is
added to read as follows:
Sec. 635.34 Adjustment of management measures.
* * * * *
(b) In accordance with the framework procedures in the Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks and the
Fishery Management Plan for Atlantic Billfishes, NMFS may establish or
modify for species or species groups of Atlantic HMS the following
management measures: maximum sustainable yield or optimum yield levels
based on the latest stock assessment or updates in the SAFE report;
domestic quotas; recreational and commercial retention limits,
including target catch requirements; size limits; fishing years or
fishing seasons; shark fishing regions or regional quotas; species in
the management unit and the specification of the species groups to
which they belong; species in the prohibited shark species group;
classification system within shark species groups; permitting and
reporting requirements; Atlantic tunas Purse Seine category cap on
bluefin tuna quota; time/area restrictions; allocations among user
groups; gear prohibitions, modifications, or use restrictions; effort
restrictions; essential fish habitat; and actions to implement ICCAT
recommendations, as appropriate.
(c) NMFS may add species to the prohibited shark species group
specified in Table 1 of Appendix A if, after considering the criteria
in paragraphs (c)(1) through (4) of this section, the species is
determined to meet at least two of the criteria. Alternatively, NMFS
may remove species from the prohibited shark species group and place
them in the appropriate shark species group in Table 1 of Appendix A
if, after considering the criteria in paragraphs (c)(1) through (4) of
this section, NMFS determines the species only meets one criterion.
(1) Biological information indicates that the stock warrants
protection.
(2) Information indicates that the species is rarely encountered or
observed caught in HMS fisheries.
(3) Information indicates that the species is not commonly
encountered or observed caught as bycatch in fishing operations for
species other than HMS.
(4) The species is difficult to distinguish from other prohibited
species.
* * * * *
16. In Sec. 635.69, paragraphs (a), (e), and (h) are revised to
read as follows:
Sec. 635.69 Vessel monitoring systems.
(a) Applicability. To facilitate enforcement of time-area and
fishery closures, an owner or operator of a commercial vessel permitted
to fish for Atlantic HMS under Sec. 635.4 and that fishes with a
pelagic or bottom longline or strikenet gear is required to install a
NMFS-approved vessel monitoring system (VMS) unit on board the vessel
and operate the VMS unit whenever the vessel leaves port with pelagic
longline gear on board; whenever the vessel leaves port with bottom
longline gear on board, is operating between 32[deg] N. lat and 38[deg]
N. lat, and the mid-Atlantic shark closed area is closed to bottom
longline fishing as specified in Sec. 635.21(d)(1)(i); or whenever the
vessel leaves port with a strikenet on board during the right whale
calving season specified in the Large Whale Take Reduction Plan in
Sec. 229.32 (f) of this title. A vessel is considered to have pelagic
longline gear on board for the purposes of this section, when gear as
specified at Sec. 635.21(c) is on board. A vessel is considered to
have bottom longline gear on board for the purposes of this section,
when gear as specified at Sec. 635.21(d) is on board. A vessel is
considered to have strikenet gear on board for the purposes of this
section, when strikenet, as defined, is on board a vessel that has been
issued a shark LAP.
* * * * *
(e) Operation. Owners or operators of vessels permitted, or
required to be permitted, to fish for HMS that have pelagic or bottom
longline gear or strikenet gear on board, and that are required to have
a VMS unit installed, as specified in paragraph (a), must activate the
VMS to submit automatic position reports beginning 2 hours prior to
leaving port and not ending until the vessel returns to port. While at
sea, the unit must operate without interruption and no person may
interfere with, tamper with, alter, damage, disable, or impede the
operation of a VMS, or attempt any of the same. Vessels fishing outside
the geographic area of operation of the installed VMS will be in
violation of the VMS requirement.
* * * * *
(h) As a condition to obtaining a LAP for Atlantic swordfish,
sharks, or tunas, all vessel owners or operators using pelagic or
bottom longline or strikenet gear subject to the VMS provisions of this
section must allow NMFS, the USCG, and their authorized officers and
designees access to the vessel's position data obtained from the VMS at
the time of or after its transmission to the vendor or receiver, as the
case may be.
* * * * *
17. In Sec. 635.71, paragraphs (a)(1), (a)(2), (a)(7), (a)(14),
(a)(17), (a)(18), (a)(23), (a)(26), (a)(34), (a)(36), and (a)(37);
(b)(7) and (b)(8); (c)(1); and (d)(10), (d)(12), and (d)(13) are
revised, and paragraphs (a)(39) and (a)(40) are added to read as
follows:
Sec. 635.71 Prohibitions.
* * * * *
(a) * * *
(1) Falsify information required on an application for a permit
submitted under Sec. 635.4 or Sec. 635.32.
(2) Fish for, catch, possess, retain, or land an Atlantic HMS
without the appropriate valid vessel permit, LAP, EFP, or display
permit on board the vessel, as specified in Sec. Sec. 635.4 and
635.32.
* * * * *
(7) Fail to allow an authorized agent of NMFS to inspect and copy
reports and records, as specified in Sec. 635.5(e) or Sec. 635.32.
* * * * *
(14) Fail to install, activate, repair, or replace a vessel
monitoring system prior to leaving port with pelagic longline gear,
bottom longline gear, or strikenet gear on board the vessel as
specified in Sec. 635.69.
* * * * *
(17) Fish for Atlantic tunas, swordfish, or sharks with a gillnet
or possess Atlantic tunas, swordfish, or sharks on board a vessel with
a gillnet on board, as specified in Sec. 635.21 (b), (e)(1), (e)(3),
and (e)(4)(ii).
(18) Fail to retrieve fishing gear and move after an interaction
with a marine mammal or sea turtle, as specified in Sec. 635.21 (c)(3)
or (d)(2).
* * * * *
(23) Fail to comply with the restrictions on use of a pelagic
longline, bottom longline, or shark strikenet as specified in Sec.
635.21 (c), (d), or (e)(3)(ii), (iii), and (iv).
* * * * *
(26) Violate the terms and conditions or any provision of an
exempted fishing permit, scientific research permit, or display permit
issued under the authority of Sec. 635.32.
* * * * *
(34) Fail to disengage any hooked or entangled sea turtle with the
least harm
[[Page 45210]]
possible to the sea turtle as specified at Sec. 635.21 (c)(5) or
(d)(3).
* * * * *
(36) Fish with bottom or pelagic longline and shark strikenet gear
for HMS without adhering to the gear operation and deployment
restrictions required in Sec. 635.21.
(37) Fail to report to NMFS, at the number designated by NMFS, the
incidental capture of listed whales with shark strikenet gear and sea
turtle mortalities associated with pelagic longline gear as required by
Sec. 635.5.
* * * * *
(39) Deploy or fish with any fishing gear from a vessel with a
bottom longline on board in any closed area during the time periods
specified at Sec. 635.21(d)(1).
(40) Deploy or fish with any fishing gear from a vessel with bottom
longline gear on board without carrying a dipnet, line clipper, and
dehooking device as specified at Sec. 635.21(d)(3).
(b) * * *
(7) Fish for, catch, retain, or possess a BFT with gear not
authorized for the category permit issued to the vessel or to have on
board such gear when in possession of a BFT, as specified in Sec.
635.21(e)(1).
(8) Fail to request an inspection of a purse seine vessel, as
specified in Sec. 635.21(e)(1)(vi)(B).
* * * * *
(c) * * *
(1) Retain a billfish on board a vessel with a pelagic longline on
board or harvested by gear other than rod and reel, as specified in
Sec. 635.21(e)(2).
* * * * *
(d) * * *
(10) Retain, possess, sell, or purchase a prohibited shark, as
specified under Sec. 635.22(c) and Sec. 635.27 (b)(1) or fail to
disengage any hooked or entangled prohibited shark with the least harm
possible to the animal as specified at Sec. 635.21(d)(3) .
* * *
(12) Fish for Atlantic sharks with unauthorized gear or possess
Atlantic sharks on board a vessel with unauthorized gear on board as
specified in Sec. 635.21 (e)(3).
(13) Fish for Atlantic sharks with a gillnet or possess Atlantic
sharks on board a vessel with a gillnet on board, except as specified
in Sec. 635.21 (e)(3).
* * * * *
[FR Doc. 03-19522 Filed 7-31-03; 8:45 am]
BILLING CODE 3510-22-S