[Federal Register Volume 68, Number 247 (Wednesday, December 24, 2003)]
[Rules and Regulations]
[Pages 74746-74789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31483]



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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 600 and 635



Atlantic Highly Migratory Species; Atlantic Shark Management Measures; 
Final Rule

  Federal Register / Vol. 68, No. 247 / Wednesday, December 24, 2003 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 030721180-3316-02; 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: Final rule; fishing season notification.

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SUMMARY: This final rule is 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 is revising the rebuilding timeframe for 
LCS to 26 years from 2004, changing some of the commercial regulations, 
changing some of the recreational regulations, implementing measures to 
reduce bycatch and bycatch mortality including a time/area closure, 
removing the deepwater/other sharks from the management unit, 
establishing criteria regarding adding or removing sharks from the 
prohibited species group, and establishing a display permit for 
fishermen who wish to harvest highly migratory species (HMS) for public 
display. NMFS also updates essential fish habitat (EFH) identifications 
for sandbar, blacktip, finetooth, dusky, and nurse sharks. NMFS also 
notifies eligible participants of the opening and closing dates for the 
Atlantic large coastal, small coastal, and pelagic shark fishing 
seasons.

DATES: This final rule is effective February 1, 2004, except for the 
amendments to Sec. Sec.  635.20(e), 635.22(c), and 635.27(b) which are 
effective on December 30, 2003.

Fishing Season Opening and Closing Dates

    The fishery opening for large coastal sharks (LCS) in the North 
Atlantic region is effective January 1, 2004, through 11:30 p.m., local 
time, April 15, 2004, and the closure is effective 11:30 p.m., local 
time, April 15, 2004, through June 30, 2004. The fishery opening for 
LCS in the South Atlantic region is effective January 1, 2004, through 
11:30 p.m., local time, February 15, 2004, and the closure is effective 
11:30 p.m., local time, February 15, 2004, through June 30, 2004. The 
fishery opening for LCS in the Gulf of Mexico region is effective 
January 1, 2004, through 11:30 p.m., local time, February 29, 2004, and 
the closure is effective 11:30 p.m., local time, February 29, 2004, 
through June 30, 2004. The fishery opening for small coastal sharks 
(SCS) in all regions, pelagic sharks, blue sharks, and porbeagle sharks 
is effective January 1, 2004, through June 30, 2004, unless otherwise 
modified or superseded through publication of a closure notification in 
the Federal Register.

ADDRESSES: For copies of Amendment 1 to the Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (Amendment 1) and its Final 
Environmental Impact Statement/Regulatory Impact Review/Final 
Regulatory Flexibility Analysis (FEIS/RIR/FRFA), contact Karyl 
Brewster-Geisz at NMFS Highly Migratory Species Management Division, 
1315 East-West Highway, Silver Spring, MD 20910 or at (301) 713-1917 
(fax). Copies can also be obtained on the web at http://www.nmfs.noaa.gov/sfa/hms/. Comments regarding the collection-of-
information requirements contained in this rule should be sent to the 
HMS Management Division at the address noted above and to the Office of 
Management and Budget (OMB) by e-mail to [email protected], or 
fax to (202) 395-7285.

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, and 
Amendment 1 to the HMS FMP are implemented by regulations at 50 CFR 
part 635.
    NMFS published a Notice of Intent to conduct an EIS and draft 
Amendment 1 to the HMS FMP on November 15, 2003 (67 FR 69180). On 
January 27, 2003, NMFS announced the availability of an Issues and 
Option paper and scheduled seven scoping meetings (68 FR 3853). On 
August 1, 2003, NMFS published the proposed rule regarding Amendment 1 
(68 FR 45196) and announced the availability of the Draft EIS (68 FR 
45237). NMFS held six public hearings and one Advisory Panel meeting 
during the public comment period, which was extended to October 3, 
2003, due to Hurricane Isabel (68 FR 47904, August 12, 2003; 68 FR 
51560, August 27, 2003; 68 FR 54885, September 19, 2003). Additionally, 
NMFS attended several Fishery Management Council meetings regarding 
Amendment 1 and its proposed rule.
    Information regarding the management history of Atlantic sharks, 
Exempted Fishing Permits (EFP), and EFH and the alternatives considered 
in Amendment 1 was provided in the preamble of the proposed rule and is 
not repeated here. Additional information can be found in the Final 
Amendment 1 available from NMFS (see ADDRESSES). A description of the 
changes to the proposed rule can be found after the response to 
comments, followed by information on the available quota and the length 
of the first 2004 fishing season.
    Most of the measures in this rule, such as the requirement to carry 
and use linecutters and dipnets, the change in authorized gear in the 
recreational fishery, and the removal of deepwater and other sharks 
from the management unit, will be effective on February 1, 2004. 
However, some of the management measures that relieve restrictions, 
such as the changes to the commercial quotas (including the quota level 
for large coastal sharks (LCS), small coastal sharks (SCS), and 
establishment of regional quotas (Sec.  635.27(b))), changes to the 
recreational bag and size limit (Sec. Sec.  635.22(c) and 635.20(e)), 
and changes to the commercial minimum size (Sec.  635.20(e)), will be 
effective on December 30, 2003. Additionally, in order to give 
fishermen time to adjust to the new regulations and, if necessary, 
revise their business plans, some of the final measures will be 
implemented after February 1, 2004. For instance, the Mid-Atlantic 
shark closure off of North Carolina (Sec.  635.21(d)(1)) and the 
trimester seasons for the commercial fisheries (Sec.  635.27(b)(1)(i)) 
will be effective on January 1, 2005. Furthermore, the requirements of 
installing and activating a vessel monitoring system (VMS) for bottom 
longline and gillnet vessels (Sec.  635.69(a)(2) and (3)) and 
possessing and using a dehooking device (Sec.  635.21(d)(3)(ii)) are 
delayed indefinitely pending type approval

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notifications to be published at a later date in the Federal Register.

Response to Comments

    A number of individuals and groups provided both written and verbal 
comments during the public comment period. The comments are summarized 
below together with NMFS' responses. Additionally, several questions 
were raised during the waiting period for the FEIS. While not required, 
NMFS has, along with the other comments below, provided further 
clarification to respond to some of the questions raised. All comments 
are grouped in a layout similar to the layout of the preamble of the 
proposed rule.

1. LCS Rebuilding Time Frame

    Comment 1: The proposed rebuilding time frame is illegal and runs 
counter to the precautionary approach. The LCS complex can and must be 
rebuilt within the 10-year time limit envisioned by Congress.
    Response: The National Standard 1 Guidelines, 50 CFR Sec.  600.310, 
specify two strategies for determining the rebuilding time frame. 
First, if a stock can rebuild in less than 10 years, the rebuilding 
time frame can be no longer than 10 years. Second, if a stock will take 
10 years or more to rebuild, the rebuilding time frame can be as long 
as the time to rebuild with no fishing plus a mean generation time. The 
HMS FMP specifies that, because of their slow growth and low 
reproductive potential, a 70-percent probability should be used for 
rebuilding the stock for sharks. The HMS FMP states that a 70-percent 
probability should be used as a guide to ensure that the intended 
results of management actions are realized and to assess the relative 
merits of one rebuilding time frame over another (see the HMS FMP at 3-
61 and 3-289). The HMS FMP also uses a low probability of a negative 
outcome (less than 20-percent probability) as a guide for evaluating 
management measures.
    Under the 70-percent probability, the amount of time required for 
rebuilding under no fishing is 10 years or greater. Thus, the second 
rebuilding strategy, discussed above, would apply. After taking into 
account the biology of the stocks, the results of the 2002 LCS stock 
assessment, the requirements of the Magnuson-Stevens Act and the 
National Standard Guidelines, the criteria in the HMS FMP, and the 
status of the fishing communities that rely on economic activities 
involving the capture of these fish, NMFS does not believe that a 10-
year rebuilding period is appropriate for the LCS complex. The 26-year 
rebuilding period established in Amendment 1 is consistent with the 
Magnuson-Stevens Act, the National Standard Guidelines at 50 CFR part 
600, subpart D, and the HMS FMP.
    Comment 2: If prohibiting fishing for 10 years does not quite give 
a 70-percent chance of rebuilding the LCS complex to MSY, then prohibit 
fishing for 20 years.
    Response: As discussed above, the HMS FMP establishes a 70-percent 
probability as a guide for shark management measures. Eliminating 
fishing would not achieve a 70-percent probability of rebuilding within 
10 years; therefore, NMFS has established a rebuilding period of 11 
years (no fishing period) plus one mean generation time. Prohibiting 
shark fishing for 20 years would give an 86-percent chance of 
rebuilding the LCS complex to maximum sustainable yield (MSY). However, 
prohibiting shark fishing for 20 years is not required by the Magnuson-
Stevens Act, which allows NMFS to consider a number of factors when 
determining the rebuilding time frame, including impacts on fishing 
communities. If NMFS were to prohibit fishing for 20 years, a number of 
businesses including fishermen, processors, and suppliers, could be 
forced out of business and a number of communities, including 
recreational fishing communities, would be adversely affected. 
Additionally, prohibiting fishing for 20 years would eliminate the 
fishery-dependent data that is needed to accurately assess the status 
of the stocks. Given these impacts, the objectives of the HMS FMP and 
Amendment 1, the requirements of the Magnuson-Stevens Act and other 
domestic law, and the results of the 2002 large and small coastal shark 
stock assessments, NMFS does not believe that shark fishing should be 
prohibited for 20 years.
    Comment 3: Our confidence in the 70-percent chance to rebuild 
figure is low given the number of uncertainties and deficiencies in the 
plan particularly the fact that the quota is not reduced by 50 percent, 
the time/area closures to protect juveniles will not be implemented 
immediately, there is no size limit in place, and NMFS has not 
accounted for all sources of mortality such as state landings.
    Response: While some uncertainty is inherent in developing any 
rebuilding plan, based on the best available scientific information, 
NMFS is confident that the combination of management measures in 
Amendment 1 should have a 70-percent chance of rebuilding the LCS 
complex. The 2002 LCS stock assessment found that reducing the catches 
by 50 percent would have, on average, a 67-percent chance of rebuilding 
LCS in 30 years. While the rebuilding time frame in the amendment is 
shorter than 30 years and the commercial quota is reduced by 45 
percent, not 50 percent, NMFS is implementing a number of other 
management measures that should reduce fishing mortality and increase 
the reproductive potential of several stocks in the LCS complex. For 
example, the time/area closure will protect juvenile sharks as 
recommended by the 2002 LCS stock assessment. Numerous studies have 
shown that protecting this life stage provides the greatest benefit to 
increasing the population size. Thus, the time/area closure will be 
more effective at protecting juvenile sharks and rebuilding the 
population than a commercial minimum size because a minimum size would 
force commercial fishermen to discard undersized sharks, which would 
not be counted against the commercial trip limit. This could result in 
more sharks being caught and potentially discarded. In the long-term, 
if dead discards were to increase as a result of a minimum size, then 
the commercial and recreational portions of the optimum yield would 
decrease and both the commercial quota level and recreational retention 
limit could be reduced. A minimum size in the recreational fishery does 
not raise the same concerns because the recreational fishery is 
believed to have low post-release mortality rates and has already been 
limited to one shark per trip, not including the exception for Atlantic 
sharpnose and bonnethead sharks.
    NMFS is also implementing other management measures, such as the 
requirement for commercial fishermen to carry and use line cutters and 
dehooking devices, that should minimize the mortality of sharks that 
are caught and released. Together, these management measures, along 
with accounting for all sources of fishing mortality (including both 
Federal and State commercial landings, dead discards, and recreational 
catches), increasing and improving education and outreach, and 
increasing compliance with the recreational regulations, should give 
the LCS complex a 70-percent chance of rebuilding within the rebuilding 
time frame.
    An additional significant aspect of the HMS FMP is the requirement 
that NMFS conduct periodic stock assessments for species or species-
groups. If new information indicates that the LCS complex is not likely 
to be rebuilt within the required time frame, NMFS can adjust 
management measures, as necessary, to ensure the

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70-percent probability of rebuilding the stock over the course of the 
26-year rebuilding period. Additionally, as more species-specific 
information becomes available, NMFS will attempt to conduct species-
specific assessments and evaluate possible management measures that 
could focus on those species that are the most vulnerable or that need 
the most protection.
    Comment 4: In considering the management options and probability of 
rebuilding sharks, having an additional set of alternatives with a 
higher probability of success would have been useful for comparison 
purposes. As it stands, the most conservative alternatives are the ones 
chosen as the preferred alternatives and they may be insufficient to 
meet the management goals. As such, the preferred alternatives in the 
amendment should be considered the absolute minimum necessary to manage 
sharks consistent with the advice of the 2002 stock assessments.
    Response: As required under NEPA, NMFS considered a wide range of 
alternatives designed to rebuild LCS. The range of alternatives 
included those that could be considered risk-prone (e.g., removing the 
retention and/or size limits in the recreational fishery) to risk-
averse (e.g., allowing no retention in the recreational fishery). From 
all the alternatives considered, NMFS selected a group of alternatives 
that, consistent with the Magnuson-Stevens Act, is likely to rebuild 
the LCS complex within the revised rebuilding time frame while allowing 
for a viable shark fishery. If warranted based on the results of future 
stock assessments, NMFS can adjust the commercial quota or other 
management measures to ensure the 70-percent probability of rebuilding 
the stock over the course of the 26-year rebuilding period.
    Comment 5: The proposed rebuilding time frame is the maximum 
allowed under the National Standard guidelines and is set using the 
entire complex rather than considering the biology of each individual 
species. We encourage NMFS to consider stratifying the time frame by 
considering the biology for individual species.
    Response: NMFS would like to move toward more species-specific 
management in the future and will do so if fishermen can demonstrate a 
better ability to target and/or avoid certain species of sharks, 
species-identification among commercial and recreational fishermen and 
commercial dealers improves, and enough scientific data are collected 
that allows for more species-specific stock assessments. Thus, NMFS 
will consider revising the basis for calculating the commercial quota 
and the classification scheme to consider a more species-specific 
approach to management when sufficient data are available to do so 
effectively.
    Comment 6: The rebuilding time frame should be calculated from the 
time the fishery was declared overfished, in this case 1999. Restarting 
the clock based on new assessment information is not required by the 
Magnuson-Stevens Act.
    Response: NMFS had originally finalized a rebuilding plan in the 
1999 HMS FMP that was designed to rebuild ridgeback LCS in 39 years and 
non-ridgeback LCS in 30 years. This rebuilding plan was based on the 
projections from the 1998 LCS stock assessment. Based on a peer review 
of that stock assessment, NMFS determined that the projections from 
that stock assessment should not be used as the basis for management 
decisions. For this reason and as a result of the change in status of 
the two primary LCS species in the fishery, NMFS determined it was 
necessary to revise the rebuilding plan. Under National Standard 1, a 
rebuilding plan begins when the first measures to rebuild the stock are 
implemented. NMFS notes that under this revised rebuilding plan, the 
LCS complex will be rebuilt by 2030, which coincides with the time 
period projected for rebuilding non-ridgeback LCS sharks under the 1999 
HMS FMP (2029) and is less than the 1999 HMS FMP rebuilding time period 
projected for ridgeback LCS sharks (2038).
    Comment 7: Applying a 70-percent probability to the setting of a 
time frame does nothing to enhance conservation and increases risk to 
the sharks. Choosing the 27-year time frame over a 10-year time frame 
is, at best, conservation neutral because the management measures, at 
least for 2004, are the same regardless of the rebuilding end date. At 
worst, choosing the longer time frame is riskier because it allows 
shark stocks to linger longer at lower biomass levels and could allow 
for inappropriate increases in fishing effort in future years before 
the complex is rebuilt.
    Response: The 70-percent probability of achieving the rebuilding 
target will enhance conservation, reduce risk, and facilitate 
rebuilding of LCS. NMFS disagrees that a 10-year time frame would be 
consistent with the same management measures applied under the revised 
26-year time frame. In the HMS FMP, NMFS decided to use a higher 
probability standard for sharks because the biology of sharks is 
different than other HMS and fish in that they take a number of years 
to mature, have few pups per brood, and generally only reproduce every 
other or every three years. This, combined with the fact that they are 
migratory and that some of their prey species are overfished, has led 
to the determination that a higher level of certainty is required when 
setting management actions for sharks. Under a 10-year rebuilding time 
frame, even with a closure of the fishery, NMFS still would not reach a 
70-percent probability of rebuilding the LCS complex.
    Comment 8: Probabilities of success should be applied only once a 
rebuilding time frame is set. The HMS FMP, other FMPs, and courts have 
all noted that management measures must have at least a 50-percent 
chance of success. The 2002 LCS stock assessment found that a 50-
percent reduction in catch has a 50-percent chance of rebuilding the 
LCS complex within 10 years. Thus, the plan meets the minimum 
probability of success. Ironically, NMFS does not apply the 70-percent 
guide to the selected time frame, noting instead that 64 percent is 
close enough.
    Response: By applying probabilities of success only once a 
rebuilding time frame is set, NMFS would have no basis for determining 
whether or not a stock could likely rebuild in less than 10 years or 
more than 10 years. This could result in unrealistic rebuilding time 
frames that could be so short as to leave no option other than closing 
the fishery or that could be so long as to never result in rebuilding 
the stock. Instead, NMFS uses the probability of success both in 
setting the rebuilding time frame and in selecting all the alternatives 
to ensure that, taken together, the suite of alternatives will meet the 
probability standard. Thus, in Amendment 1, while reducing the overall 
catch by 45 percent does not give a 70-percent probability of success, 
the combination of catch reductions with other management actions that 
will likely reduce mortality of released catch or protect juvenile 
sharks does have a 70-percent probability of success.

2. Commercial Management Measures

A. LCS Classification
    Comment 1: NMFS received a range of comments regarding the proposed 
classification. Comments received included: It is easier to comply with 
one closure date; violators can take advantage of two closure dates. We 
support the preferred alternative because it will simplify the 
regulations and reduce regulatory discards. We agree that species-
specific quotas are not reasonable now and therefore support

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the re-aggregating the LCS complex; however, NMFS should not abandon 
the goal of species-specific management. Because fishermen can actively 
target sandbar and blacktip sharks, we prefer the alternative that 
allows for species-specific shark groupings or, alternatively, the 
ridgeback/non-ridgeback species groupings. The stock assessment 
recommended that every effort be made to manage the LCS fishery on a 
species by species basis; thus, we support LCS groupings with different 
closure dates possible.
    Response: NMFS considered five different LCS classifications in 
developing the proposed and final rule. The aggregate LCS 
classification with one closure date is preferred because, in 
combination with the other preferred alternatives, it is (1) expected 
to maintain historic fishing practices (since 1993) and food 
availability in the market place, (2) expected to reduce burden on 
fishermen for sorting, (3) expected to decrease, or at least not 
increase, the number of protected resource interactions; and (4) not 
expected to increase regulatory discards. During this rulemaking 
process NMFS heard that many fishery participants cannot accurately 
identify or effectively target individual shark species. As such, NMFS 
does not believe that a species-based classification is warranted at 
this time, but will reconsider this issue when the ability to identify 
and target shark species improves.
    Comment 2: The preferred alternative is the same classification 
that was in place from 1993 through 2002 but is not consistent with the 
rebuilt status of sandbar and blacktip shark or the economic needs of 
shark fishermen.
    Response: The final action for LCS classification (i.e., aggregate 
LCS, one closure date) seeks to minimize bycatch (i.e., regulatory 
discards) of both rebuilt and overfished species of LCS, which would 
otherwise occur under separate closure dates or partial closures of a 
mixed fishery. While sandbar and blacktip sharks are no longer 
overfished and, in the case of blacktip sharks, may be able to 
withstand an increase in harvest, NMFS also needs to rebuild overfished 
LCS. As noted above, species-specific management is not feasible at 
this time. This final action allows fishermen the opportunity to catch 
the entire quota without decreasing efficiency (i.e., increased time to 
sort catch, increased time at sea to make up for lost catch resulting 
from regulatory discards, etc.), thus, maximizing economic benefits as 
compared with the other classification alternatives considered.
    Comment 3: NMFS should increase research, survey, and monitoring 
efforts to acquire the critical information on individual life 
histories, ecological requirements, and stock conditions to enable more 
species-specific management. NMFS should develop a plan of action for 
moving towards species-specific management in the future.
    Response: NMFS is supportive of increasing scientific research, 
surveys, and monitoring efforts of shark populations, provided that 
funding is available to do so. Currently, NMFS funds a number of shark 
focused research programs including, but not limited to: (1) 
Cooperative shark research (i.e., between Southeast Fisheries Science 
Center and Mote Marine Laboratory), (2) reducing blue shark bycatch in 
pelagic longline fisheries, (3) delineation of winter nursery grounds, 
migratory patterns, and critical habitat of juvenile sandbar sharks in 
the western Atlantic Ocean, and (4) various observer programs in the 
shark fishery. NMFS will review species-specific information and 
incorporate such information into stock assessments, as appropriate, as 
it becomes available and intends to pursue workshops to improve species 
identification by fishermen and dealers in the future. As such, NMFS 
may consider implementation of species-based LCS classifications when 
the ability to accurately identify and effectively target shark species 
improves.
    Comment 4: National Standard 1 requires NMFS to adopt alternatives 
that result in the lowest quotas for vulnerable and overfished species 
and minimize bycatch to the greatest extent possible. Therefore, NMFS 
should adopt the alternative that aggregates LCS and closes the fishery 
when the quota for the most vulnerable species is meet.
    Response: Of the LCS classification alternatives considered, the 
LCS classification final action best complies with National Standard 1 
because it, in combination with the final action for the quota basis, 
prevents overfishing and facilitates rebuilding of LCS while achieving 
optimum yield on a continuous basis from the fishery. Additionally, the 
selected alternative is expected to decrease, or at least not increase, 
the number of protected resource interactions and not expected to 
increase regulatory discards, which is consistent with National 
Standard 9. Closing the fishery when the quota for the most vulnerable 
species is met is not a viable alternative at this time because to date 
there is limited data available on individual LCS species beyond that 
of sandbar and blacktip. Without species-specific assessments, it is 
difficult to say which LCS species have highest vulnerability or even 
what the quota should be for any individual species. NMFS may consider 
this alternative as more information becomes available in the future.
B. Shark Quota Administration
    Comment 1: NMFS received a range of comments regarding the 
combination of regional quotas and trimester seasons (i.e., three four-
month periods). Comments included: We support the proposed 
administration of regional and trimester seasons. We cannot support the 
proposed administration of regional and trimester seasons. Regional and 
trimester seasons will provide for more flexible management and improve 
quotas as a management tool. The regional quotas and trimester seasons 
will force vessels down to Florida for the January opening and will 
force them to fish for a shorter amount of time.
    Response: NMFS considered three separate alternatives regarding 
seasons and two alternatives pertaining to regional quotas. NMFS is 
implementing trimester seasons with regional quotas because this 
combination will (1) aggregate the majority of shark pupping into one 
fishing season (i.e., second trimester) as opposed to divide it into 
two or more seasons, which is possible with either the semi-annual or 
quarterly season approaches, (2) provide managers with flexibility to 
adjust regional quotas, where necessary, to prevent mortality on 
juveniles and reproductive female sharks, (3) provide a higher degree 
of resolution on which to manage seasonal fisheries, (4) minimize the 
social and economic costs associated with switching gear more often 
(i.e., only three times as opposed to four per year), (5) give a higher 
percentage of the quota to each open season than would occur under a 
quarterly season approach, and (6) will increase the number of open 
seasons (i.e., three as opposed to two) and spread them across the 
calendar year, thereby promoting greater economic stability of fishery 
participants.
    Comment 2: NMFS received a range of comments regarding the proposed 
trimester approach. Comments included: The entire season, from January 
through November, should be closed to protect fish. The second semi-
annual season closes too early. The trimester seasons will spread out 
the landings and avoid current price drops. The trimester approach will 
allow fishermen to catch sharks when grouper prices are lower and helps 
sharks be available year-round. Trimester seasons

[[Page 74750]]

appear to have the greatest potential to accommodate shark pupping 
activities. The second trimester season should be closed to all shark 
fishing to reduce the catch of juveniles.
    Response: NMFS considered three different seasons for the shark 
fishery in the development of the proposed and final rule. Trimester 
seasons (i.e., three four-month fishing seasons) are preferred because 
they will allow managers the flexibility to open and close seasons to 
match species requirements such as aggregating shark pupping seasons 
into one fishing season, as opposed to spreading pupping time-frames 
over multiple open seasons. Trimesters will also avoid undesirable 
dates (i.e., July 1st) for market openings. Additionally, trimester 
seasons will give fishermen a greater chance to build new markets for 
sharks, given that there will be more open seasons (i.e., three as 
opposed to two) spread across the calendar year. Increasing the number 
of open seasons and effectively spreading open seasons out more evenly 
over the calendar year will, in the long-term, result in greater 
economic stability for fishermen and associated communities.
    Comment 3: NMFS should keep the semi-annual seasons and open the 
second season on July 15th each year.
    Response: Maintaining semi-annual seasons could have negative 
ecological, social, and/or economic impacts should semi-annual seasons 
continue to extend into pupping seasons. Given that LCS are overfished 
and overfishing is occurring, continued mortality levels on juvenile 
and reproductive females could cause the complex to decline further 
over time. Further declines in LCS stock status could result in 
additional reductions in available quota and/or other management 
measures, which could impact fishermen and fishing communities both 
economically and socially. Trimester seasons will aggregate the 
majority of shark pupping into one fishing season (i.e., second 
trimester) and simultaneously avoid market problems associated with a 
July 1st opening by providing for openings on January 1, May 1, and 
September 1 of each year.
    Comment 4: NMFS should start each season at the same time to help 
disperse fishing effort and promote equitable distribution of the 
allowable quota.
    Response: While opening shark seasons at the same time for all 
regions may help to disperse fishing effort and promote equitable 
distribution of the allowable quota, allowing managers flexibility to 
determine alternative season opening dates (i.e., by region) will 
promote further consideration of safety at sea and give greater fishing 
opportunities based upon fish availability in each region.
    Comment 5: August and September are not good times for shark 
fishing. Most of the effort should be in October through December. 
Therefore, the quota should be reapportioned from the first two 
trimesters to the last trimester.
    Response: NMFS recognizes that there are temporal differences in 
catch-per-unit-effort as well as catch composition in the shark 
fishery. As such, annual quotas need not be split equally between 
trimester seasons. Instead, trimester seasons will allow managers to 
establish quotas for each open season based on markets, pupping season, 
effort concerns, and other relevant factors. Initially, NMFS will split 
the available quota equally between trimesters for the first year or 
two and will re-evaluate this approach via rulemaking, if necessary, 
based upon observed catch rates and other factors, such as stock 
status.
    Comment 6: NMFS received a range of comments specific to the 
proposed percentages for regional quotas. The comments included: The 
historical percentage of small coastal sharks in the Gulf of Mexico is 
incorrect due to improper identification and reporting. The regional 
quota proposed for the North Atlantic is below the actual take and 
would be filled quickly between the vessels fishing in the region. The 
North Atlantic proposed portion of the LCS quota is too large and 
should be reduced; the percentage was probably inflated due to 
misidentification of sandbar sharks. The South Atlantic proposed 
portion for SCS is too large due to misinformation and 
misidentification; there are just as many LCS reported in that region 
as SCS. We can only support regional quotas if one region does not 
prevent another region from having a fair shot at the fishery.
    Response: NMFS combined information from two separate databases 
containing regional landings information as reported by dealers and 
states to NMFS over several years. These landings data represent the 
best available information pertaining to regional data. Given that the 
regional quotas seek to maintain historical landings, as opposed to 
reducing landings, NMFS does not expect this alternative to change 
previous fishing practices or result in any significant economic 
impact. Fishery participants will be allowed to fish in any region, 
provided that the season for the region in question is open and that 
the quota for that region has not been taken. Over time, this 
alternative may allow NMFS the flexibility to manage quotas to each 
region's maximum economic advantage. Additionally, if reporting 
indicates that participation in one region increases or decreases, NMFS 
may, through another rulemaking, modify the percentages available to 
each region to ensure that fishermen in all regions have a reasonable 
opportunity to fish for sharks. NMFS recognizes the need for more 
accurate species identification and as such, the agency will pursue 
mandatory workshops through a future rulemaking that will focus on 
improving species identification by fishery participants and possibly 
dealers and enforcement agents.
    Comment 7: How will NMFS enforce the regional quota approach? Will 
there be three separate permits for vessels fishing within the regions 
or can a vessel fish in an open region and land catch in a closed 
region? We are only supportive of the regional quota approach if 
permitted vessels can fish in any region.
    Response: Federal fishery participants will be allowed to fish in 
any region, provided that the season for the region in question is open 
and that the quota for that region has not been taken. As such, NMFS 
will not be issuing regional permits to vessels authorizing them to 
fish in a given region. Rather, each regional quota will be enforced by 
monitoring illegal fishing activity in each region, as is done in the 
Atlantic bluefin tuna fishery. As is current practice, the closure date 
for each region will be announced before the start of the season. 
Additionally, state agencies may have different permit and closure 
requirements. As such, fishery participants are encouraged to check 
with state agencies, where state permit and/or closure requirements are 
in question.
    Comment 8: NMFS should not use data from 1999 to 2001 to establish 
the regional quotas. Instead, NMFS should use data from the 1980s 
(i.e., before management) in order to get an idea of where the fishery 
historically operated. If this is done, the North Atlantic will account 
for over half the landings.
    Response: Calendar years 1999-2001 were used as the basis for 
establishing regional quotas because they (1) represent the period of 
time following the last major change in management of the shark 
fishery, (2) fall after implementation of limited access permits, and 
(3) represent the time-frame for which the best regional data are 
available. Using a longer timeframe or only data from the past may not 
provide an accurate representation of the current fishery. Over time, 
NMFS may, if warranted, decide to adjust the

[[Page 74751]]

regional quotas via rulemaking to ensure each region has an opportunity 
to fish.
    Comment 9: NMFS should pay particular attention to regional 
differences in shark pupping activity and use its discretion in 
allocating quotas and setting seasons so as to best prevent mortality 
of congregating pregnant females, pups, and juveniles.
    Response: Spatial differences in fishery practices and catches 
warrant further consideration, and regional quotas provide a means of 
preventing mortality of congregating reproductive females, pups, and 
juvenile sharks. Shark pupping data indicate that spatial differences 
exist between species utilization of various shark pupping grounds. For 
example, species within the SCS complex utilize pupping grounds between 
South Carolina and the Gulf of Mexico, whereas some species within the 
LCS complex utilize only the Atlantic coast for pupping grounds. NMFS 
will periodically assess regional differences in shark pupping activity 
and should changes be required, quota adjustments will be carried out 
via framework action.
C. Shark Quota Basis
    Comment 1: We support the preferred alternative of an MSY basis. In 
the future, NMFS should estimate MSY on a species-specific basis for 
all LCS. NMFS should establish a similar approach for pelagic sharks 
when a validated assessment is available.
    Response: Amendment 1 uses MSY as a basis for establishing 
commercial quotas. NMFS must determine MSY as well as optimum yield 
(OY) and specify status determination criteria to determine the status 
of the stock. As such, the 1999 HMS FMP defined fishing mortality and 
biomass levels necessary to produce MSY and OY on a continuing basis. 
Given that these definitions are not subject to change in this final 
rule, MSY-based quotas provide a direct means for determining 
appropriate fishery management action. MSY and OY estimates are readily 
available from stock assessment outputs and can be updated annually if 
necessary. NMFS is currently limited in its ability to estimate MSY for 
all shark species within each of the management units. However, as new 
information becomes available, NMFS will strive to integrate more 
species-specific information into stock assessments, where MSY could be 
calculated. Once the international stock assessment for pelagic sharks 
is complete, NMFS will re-evaluate the appropriateness of existing 
pelagic shark quotas and the basis for calculating commercial quotas 
for these species.
    Comment 2: NMFS received several comments regarding the reduction 
in LCS quota by 40 percent instead of the recommended 50 percent. 
Comments included: Because the proposed alternative reduces MSY by only 
40 percent instead of the recommended 50 percent, NMFS should adopt 
other conservation methods such as gear restrictions and time/area 
closures whose effects can be quantified to show that they achieve the 
mortality goal of rebuilding with a 70-percent probability. The 40-
percent reduction is not reasonable; there is no reliable basis to 
stray from the scientific advice. The assessment recommendation is 
based on a 50-percent probability of successful rebuilding; if NMFS 
were to apply the 70-percent guide, the proposed reduction would be 
larger not smaller than 50 percent. Therefore, NMFS should reduce the 
quota by a minimum of 50 percent.
    Response: The preferred quota alternatives will implement an LCS 
aggregate quota based upon a 45-percent reduction of average maximum 
sustainable catch (MSC) for LCS, multiplied by the percentage of 
commercial catch attributable to the LCS complex. NMFS reduced the 50 
percent recommended reduction by five percent after considering the 
following factors: (1) While the stock assessment did say that the LCS 
complex should be reduced by 50 percent, it also said that the 
reductions should be on species other than sandbar and blacktip; (2) 
observer data indicates that sandbar and blacktip sharks comprise 
approximately 67 percent of the LCS catch, indicating that a quota 
reduction would mostly apply to those species; (3) peer reviews of the 
2002 LCS stock assessment indicated that the complex assessment may not 
be as accurate as individual species because of biological differences 
between species; (4) catch per unit effort (CPUE) data for silky, 
tiger, and scalloped hammerhead do not indicate a decline; and (5) the 
other preferred measures such as the time/area closure will reduce 
mortality and/or dead discards. Furthermore, the percent reduction has 
been revised upward from the 40-percent reduction originally proposed 
in the draft Amendment based upon public comment received during public 
hearings. The Southeast Fisheries Science Center has indicated that the 
combination of the preferred alternatives, namely the 45-percent quota 
reduction and time/area closure, would increase compliance in the 
fishery and allow for the LCS complex to rebuild within the specified 
time-frame. As such, further reductions in the LCS commercial quota are 
not necessary at this time. However, NMFS will adjust the quota over 
time based upon future stock assessments to ensure that the LCS complex 
rebuilds within the 26-year rebuilding time frame.
    Comment 3: NMFS must also account for state fisheries mortality 
estimates when setting quotas.
    Response: State landings are included as part of the commercial 
landings percentage used to calculate the commercial quotas. Thus, the 
commercial quota is established to include landings by Federal and 
state fishermen. Any overharvests or underharvests will be accounted 
for in the same season of the following year.
    Comment 4: We support the preferred alternative but the draft 
amendment is unclear on how information from future stock assessments 
will be used in setting quotas. Would the same percent of MSY always be 
used regardless of the population level?
    Response: The LCS aggregate quota is based upon a 45-percent 
reduction of average MSC for LCS, multiplied by the percentage of 
commercial catch attributable to the LCS complex. As such, this percent 
reduction may not be used when setting future quotas. Instead, NMFS 
will assess the appropriateness of percent reductions and/or increases 
as new information becomes available in future stock assessments in 
order to ensure that the LCS complex rebuilds within the rebuilding 
timeframe.
    Comment 5: We support the proposed MSY basis as long as that 
calculation continues to incorporate a target fishing mortality rate at 
75 percent of the fishing mortality at MSY (FMSY). We would 
also support expanding this precautionary buffer by lowering the 
percent of F but not increasing the rate toward FMSY.
    Response: The 1999 HMS FMP defined fishing mortality and biomass 
levels necessary to produce MSY and OY on a continuing basis. In 
summary, a species is considered overfished when the current biomass 
(B) is less than the minimum stock size threshold. The minimum stock 
size threshold is determined based on the natural mortality of the 
stock and the biomass at Maximum Sustainable Yield (BMSY). 
The MSY is the maximum long-term average yield that can be produced by 
a stock on a continuing basis. Overfishing is occurring on a species if 
the current fishing mortality (F) is greater than FMSY. When 
one or both of these measures occur, a species is declared overfished 
and action to rebuild the stock and/or prevent overfishing is needed 
within one year.

[[Page 74752]]

A species is considered rebuilt when B is greater than BMSY 
and F is less than FMSY. A species is considered healthy 
when B is greater than or equal to the biomass at optimum yield 
(BOY) and F is less than or equal to the fishing mortality 
at optimum yield (FOY). NMFS is not changing these 
definitions in this rule, thus the target control rule for managing 
healthy stocks continues to be 75 percent of FMSY. This 
definition is consistent with the National Standard guidelines.
D. Minimum Size Restrictions
    Comment 1: NMFS received a range of comments regarding what the 
commercial minimum size should be. Comments included: We support the no 
commercial minimum size alternative. The minimum size in the HMS FMP 
was based on sandbar sharks but does not fit for all ridgeback LCS 
species. We support the proposed no minimum size because the minimum 
size was established for sandbar sharks which is no longer overfished 
and because it will help reduce regulatory discards. We support a 
minimum size for sharks. The minimum size of any shark should be 15 
feet. If recreational fishermen have a minimum size to protect 
juveniles, commercial fishermen should have a minimum size as well. We 
could support no commercial minimum size if juveniles of all species 
were protected by time/area closures; the proposed time/area closure 
does not do this.
    Response: NMFS considered six different minimum size alternatives 
in the commercial fishery. Not implementing a commercial minimum size 
is preferred because, in combination with the other preferred 
alternatives, it will minimize regulatory discards and economic and 
social impacts to commercial fishermen, while providing adequate 
protection for juvenile and neonate sharks through the time/area 
closure off of North Carolina. Furthermore, commercial gear, unlike 
recreational gear, can have high post-release mortality rates. 
Therefore commercial management measures, which are aimed at reducing 
(i.e., quota reductions) or preventing (i.e., via time/area closures) 
catch are better for protecting juvenile and neonate sharks.
    Comment 2: NMFS made a strong case in the HMS FMP for a minimum 
size based on protecting the age classes with the highest reproductive 
potential, demographic information, and the proportion of sharks 
brought to the boat dead. Now that NMFS is backing away from a 
ridgeback LCS quota, this measure is needed to protect the most 
sensitive life stages of ridgeback LCS (sandbar and dusky sharks in 
particular). NMFS should maintain the minimum size, show quantitative 
analyses that indicate a minimum size is not needed, or replace it with 
more effective species-specific measures to protect juvenile dusky and 
sandbar sharks.
    Response: Maintaining the commercial minimum size is not warranted 
at this time. This rule finalizes several commercial management 
measures including, but not limited to, trimester seasons, regional 
quotas, reductions in the LCS quota, bycatch reduction measures, and a 
time/area closure to protect juvenile dusky and sandbar sharks, which 
will facilitate rebuilding of LCS.
    Comment 3: If NMFS does not adopt a minimum size, it must adopt a 
time/area closure to reduce bycatch of juvenile and neonate sharks to 
levels at least as great as would be achieved with minimum sizes.
    Response: Implementation of a time/area closure would reduce 
bycatch of juvenile and neonate sharks, but alone, it would not be 
sufficient to meet the rebuilding target for the LCS complex. As such, 
NMFS is implementing multiple management measures including, but not 
limited to reductions in the LCS quota, bycatch reduction measures, and 
the time/area closure, which are intended reduce bycatch of juvenile 
and neonate sharks.
    Comment 4: NMFS should establish sub-group or species-specific 
minimum sizes within the LCS, SCS, and/or pelagic shark species groups 
as justified by new or updated research.
    Response: Minimum sizes for sub-groups or individual species within 
each management unit are not necessarily the most effective management 
measures. While a commercial minimum size would seek to protect and 
reduce fishing mortality on juvenile sharks, any conservation benefits 
gained may be offset by increases in regulatory discards and associated 
post-release mortality if commercial fishermen are unable to avoid 
mixed-size aggregations of some shark species. For instance, while 
sandbar sharks tend to segregate by size, blacktip sharks and other 
species do not. Regulatory discards may also result in effort increases 
by fishermen in order to make up for lost catches, which could also 
result in increased interactions with protected (i.e., sea turtles and 
marine mammals) and non-targeted (i.e. prohibited sharks and other 
finfish) species. Additionally, regulatory discards of LCS are not 
counted against the 4,000 pound trip limit. Thus, if a fisherman should 
catch a set full of undersized sharks, those sharks would be discarded 
and the fisherman could set the gear again, possibly in another school 
of small sharks. If the ability of fishermen to target certain species 
of sharks improves, then NMFS may reconsider minimum sizes in the 
commercial fishery.
    Comment 5: Commercial fishermen have long claimed that most sharks 
come in alive. Therefore, there does not seem to be any rationale for a 
recreational minimum size while similar commercial measures are 
eliminated. A commercial minimum size for mako sharks is overdue. 
Longliners are willing to compromise for a minimum size on mako sharks.
    Response: Commercial fishery observer data indicate that a number 
of LCS exhibit low survivability following longline capture. These 
species include spinner (63 percent dead when brought to the vessel), 
dusky (81 percent), scalloped hammerhead (87 percent), blacktip (88 
percent), silky (90 percent), and great hammerhead (95 percent). As 
such, NMFS believes that implementation of a minimum size in the 
commercial fishery would result in significant increases in regulatory 
dead discards of LCS. However, sharks caught on recreational gear are 
thought to have low post-release mortality rates and, as such, a 
minimum size in the recreational fishery would contribute to LCS 
rebuilding by protecting juvenile and subadult sharks.
E. Commercial Shark Quota: General
    Comment 1: NMFS received a range of comments regarding what the 
commercial quota level should be, including: Commercial quota levels 
should be reduced or even eliminated until the complex recovers. Quotas 
should be reduced by 700 percent. We support the quota alternatives 
(classification, administration, and basis) insofar as that together 
they result in the lowest overall quotas to ensure sustainable levels 
for all species and protect juveniles.
    Response: NMFS did not propose a specific quota level. Instead, 
NMFS considered a wide range of quotas that resulted from the 
combination of classification and quota basis alternatives, 
specifically seven different commercial quotas for LCS and three 
different commercial quotas for SCS. Each quota alternative carefully 
considered the results of the 2002 stock assessments for LCS and SCS. 
The preferred quota alternatives will implement commercial quota levels 
of 1,017 mt dw for the LCS aggregate and 454 mt dw for the SCS 
aggregate. These quota levels are expected to rebuild the LCS complex 
within the necessary time

[[Page 74753]]

frame and prevent overfishing of SCS. If future stock assessments 
indicate adjustments are necessary to meet these goals, then the 
preferred quota basis alternative will allow NMFS the flexibility to 
address such adjustments.
    Comment 2: The most recent stock assessment called for a 50-percent 
reduction in catches for the LCS complex but the preferred alternatives 
combined result in a 34-percent reduction in commercial catch from 
recent years (1,692.7 mt dw to 1,109 mt dw). While the additional 
measures may result in further reductions in mortality, the other 
proposed measures could increase the quotas and undermine management.
    Response: The combination of preferred alternatives including, but 
not limited to, a commercial quota with a 45-percent reduction in 
catches and a time/area closure aimed at protecting juvenile and 
neonate sharks will rebuild the LCS complex. Analyses by the Southeast 
Fisheries Science Center indicate that the combination of the preferred 
alternatives in the draft Amendment would allow for the LCS complex to 
rebuild within the rebuilding time frame. Furthermore, the other final 
actions (i.e., trimester seasons and regional quotas) will not result 
in an increase in quotas, but will allow for more flexibility in 
management to better refine management measures to protect juvenile 
sharks and rebuild overfished LCS.
    Comment 3: NMFS received several comments regarding the apparent 
increase in quota from the total of 816 mt dw in the HMS FMP to the 
proposed 1,109 mt dw. Comments included: Even though LCS are overfished 
and overfishing is occurring, NMFS is proposing to increase the LCS 
quota by 35 percent; this is hard to understand. NMFS should move 
forward with the MSY quota basis but maintain the 816 mt dw quota level 
until a new, validated stock assessment can be carried out.
    Response: The no action alternative would implement commercial 
quota levels for LCS (i.e., 620 mt dw for ridgeback LCS and 196 mt dw 
for non-ridgeback LCS) totaling 816 mt dw, which were approved in the 
1999 HMS FMP based on projection models in the 1998 LCS stock 
assessment. These quota levels were never implemented due to 
litigation. Taking into consideration the court-approved settlement 
agreement, the results of the 1998 stock assessment peer reviews, and 
other information, NMFS maintained the 1997 commercial quotas for LCS 
(i.e., 1,285 mt dw) as an interim measure pending completion of 
Amendment 1. As such, except for 2003, commercial fishermen have been 
fishing under the LCS quota of 1,285 mt dw, since 1997. The preferred 
alternatives, which would implement a LCS quota of 1,017, represent a 
21-percent reduction in available quota compared to the 1,285 mt dw 
baseline.
    Comment 4: The LCS quota component of the species-specific quota 
alternatives is too low and should be doubled in order to reduce the 
potential for regulatory discards.
    Response: The species-specific quota alternatives (i.e., MSY and 
average landings) incorporated an appropriate percent reduction for 
each species or species group, as recommended in the 2002 LCS stock 
assessment. Additionally, the 2002 stock assessment clearly indicated 
that LCS reductions should focus on species other than sandbar and 
blacktip. Because regulatory discards will occur as a result of 
implementing species-specific quotas in the LCS fishery, NMFS selected 
alternatives, which in combination with one another will aggregate LCS 
species and establish one commercial quota for the complex.
    Comment 5: Fishing pressure on all LCS species except sandbar and 
blacktip has been abated since the HMS FMP. Any need to reduce the 
potential for bycatch of the other species via the use of an aggregate 
quota at a low quota level is inconsistent with the status and biomass 
levels of the principal commercial species and subject to the 
practicability standard of National Standard 9. It is not practicable 
to reduce the commercial fishery now that the primary commercial 
species are rebuilt.
    Response: Amendment 1 seeks to rebuild the LCS complex, which is 
overfished. Consistent with National Standard 9, the preferred 
alternatives, which would aggregate LCS species and establish one 
commercial quota for the complex, will , to the extent practicable, 
minimize bycatch (i.e., regulatory discards of shark) resulting from 
partial closures (i.e., multiple closure dates by LCS grouping or 
individual species as a result of quotas being taken) of a mixed 
fishery and allow fishermen the opportunity to catch the entire quota. 
Additionally, the number of protected resource interactions may 
decrease, or at least not increase, because fishermen would not have to 
increase effort in order to make up for lost catch during partial 
closures and the LCS quota will be lower as a result of the preferred 
alternatives.
    Comment 6: Mexican fishermen catch huge amounts of sharks. Why are 
U.S. fishermen limited? These limitations on U.S. fishermen has kept 
prices down.
    Response: NMFS has regulatory jurisdiction over the exclusive 
economic zone (i.e., from generally 3 nautical miles seaward to the 200 
nautical mile limit) in U.S. waters but cannot regulate the fishing 
activities of other countries. However, consistent with the National 
Plan of Action and the Shark Finning Prohibition Act, NMFS is 
continuing cooperative research efforts with other countries (e.g., 
Canada and Mexico) and engaging in deeper dialogues with international 
fishery management organizations such as the International Commission 
for the Conservation of Atlantic Tunas (ICCAT), the United Nations 
General Assembly, Food and Agriculture Organization (FAO), and others 
as appropriate for shark management.
    Comment 7: We need an adequate incidental quota to reduce/eliminate 
regulatory discards and cover the inevitable secondary catches in many 
fisheries.
    Response: An incidental quota or similar alternatives could be a 
viable alternatives for reducing regulatory discards. NMFS will 
investigate this issue in a future rulemaking.

3. Recreational Management Measures

A. Retention Limit
    Comment 1: NMFS received a range of comments regarding the 
appropriate recreational retention limit, including: We support the 
preferred alternative and suggest that anglers also be allowed one 
additional blacktip shark because the stock is rebuilt. Only one shark 
of any species per vessel per trip should be allowed because most 
recreational anglers cannot identify individual shark species. The 
proposed alternative is appropriate and precautionary because the 
recreational sector has been fishing under regulations based on a stock 
assessment that was overturned and, therefore, contributed more to 
rebuilding. We do not oppose the proposed addition of bonnethead, but 
urge NMFS to monitor this species to prevent overexploitation; South 
Carolina has already taken the proposed action based on the same stock 
assessment results. Any additional catch reductions that may be 
required to meet management goals should come from the commercial 
sector before considering further cuts to the recreational sector. 
Recreational fishermen kill sharks for no reason and cause numerous 
dead discards to wash up on the beach. Recreational take levels should 
be reduced.
    Response: One shark per vessel per trip plus one Atlantic sharpnose 
and one bonnethead shark per person per

[[Page 74754]]

trip is appropriate for the recreational shark fishery. This 
alternative could reduce recreational harvest levels by the 80-85 
percent required under the rebuilding plan in Amendment 1 if angler 
compliance increases. NMFS analyzed other alternatives in Amendment 1 
that would have allowed the retention of additional LCS, SCS, and 
pelagic sharks. However, because the 2002 LCS stock assessment 
indicates that the LCS complex needs a reduction in fishing mortality 
and many recreational anglers cannot correctly identify sharks, those 
alternatives would not achieve the level of reduction needed to rebuild 
LCS. With regard to discards and mortality in the recreational fishery, 
NMFS urges anglers to comply with size and retention limits and release 
sharks in a manner that maximizes their survival. NMFS may adjust size 
and retention limits in the future based on the results of future stock 
assessments.
    Comment 2: NMFS received several comments regarding methods of 
increasing compliance within the recreational fishery, including: Any 
non-compliance by the recreational sector is due to confusion with the 
current regulations and, to a lesser extent, the proper identification 
of different shark species. NMFS can solve these problems by increasing 
angler education and outreach. Compliance and enforcement is not strong 
in Federal waters. NMFS should increase outreach by using the internet, 
linking the HMS regulations to the NOAA weather page, and printing 
flyers for marinas, Sea Grant, port agents, and states.
    Response: Compliance in the recreational fishery, outreach, and the 
availability of educational materials needs to be increased. NMFS will 
distribute a revised Atlantic shark recreational fishery brochure after 
the final rule for Amendment 1 is published. It will contain 
information regarding HMS Angling category permits, HMS Charter/
Headboat permits, bag limits and minimum sizes, release information, 
landing restrictions, the no sale provision, HMS tournament 
registration, tagging information, as well as species that may be 
retained, and species that must be released. Additional brochures on 
other HMS fisheries are available. NMFS is also currently producing an 
identification guide for sharks, tunas, and billfishes of the Atlantic 
and Gulf of Mexico that should be available shortly. Further, NMFS 
received public comment in favor of mandatory educational workshops for 
anglers and commercial fishermen discussing species identification, 
release techniques, and regulations. NMFS intends to move forward with 
requiring participation in mandatory workshops in a future rulemaking 
and will attempt to make voluntary workshops available to the public in 
the interim.
    Comment 3: The one-shark per boat limit is not a problem except in 
tournaments where anglers may be forced to decide between keeping an 
eligible shark or taking a chance on catching a larger one. The 
difference between allowing one or two recreationally caught sharks 
would be minuscule on an annual basis, in comparison with what a 
longliner could kill during the same time period.
    Response: Allowing recreational anglers an additional shark each 
would not have minor impacts compared to the commercial fleet. 
Currently, recreational fishermen take more sharks than commercial 
fishermen (142,000 LCS in 2001 versus 99,200 LCS in the commercial 
fishery). Additionally, recreational fishermen catch smaller sharks 
than commercial fishermen (average size of approximately 10 pounds 
versus 36 pounds in the commercial fishery). This information, combined 
with the facts that most anglers cannot correctly identify sharks and 
the LCS stock assessment recommended protecting juvenile LCS, provides 
support for the one shark limit. Further, the vast numbers of 
recreational anglers could lead to large numbers of LCS being taken. 
NMFS analyzed an alternative that would have allowed vessels with HMS 
Angling category permits participating in registered tournaments, or 
HMS CHB permit holders on for hire trips, to retain one shark per 
person, up to two sharks per vessel, per trip, as well as one Atlantic 
sharpnose and one bonnethead per person per trip. This alternative 
would have resulted in mortality levels greater than those expected 
from some of the other alternatives considered and is not consistent 
with the 2002 LCS stock assessment which indicates that the LCS complex 
needs a reduction in fishing mortality. Additionally, without more 
information regarding the status of pelagic sharks, this alternative 
could have been detrimental to pelagic sharks. However, this 
alternative could be combined with other fishing controls (e.g., 
increased minimum sizes) so that overall mortality is not increased. 
NMFS may consider this approach in the future.
    Comment 4: Many tournaments have restricted eligible species only 
to makos and threshers in order to avoid the waste of sharks not 
normally taken for food.
    Response: NMFS appreciates and encourages conservation efforts by 
anglers and tournament organizers.
B. Minimum Size Restrictions
    Comment 1: NMFS received a range of comments regarding the 
recreational minimum size, including: We support the proposed 
alternative because a minimum size helps to promote the live release of 
young sharks. The number of recreational fishermen who fish for sharks 
from Maine to Texas could number in the millions, which could 
significantly affect the mortality of juvenile sharks especially if 
there is no minimum size. South Carolina has already taken this 
proposed measure; most recreational anglers support a minimum size 
larger than is being proposed. Because many fish are killed before they 
are measured, particularly if they are dangerous, we cannot support a 
recreational minimum size. An exception to the minimum size for 
blacknose sharks should be added, because they are not overfished and 
do not reach the proposed minimum size.
    Response: A 4.5 feet fork length for all sharks and no size limit 
for Atlantic sharpnose and bonnethead sharks is appropriate for the 
recreational shark fishery. Sharks caught in recreational fisheries are 
thought to have low post-release mortality rates and the preferred 4.5 
foot fork length minimum size limit should minimize fishing mortality 
on the stages that contribute the most to population growth by 
maintaining catch-and-release fishing on juvenile and subadult sharks. 
The allowances for the retention of Atlantic sharpnose and bonnethead 
sharks without a minimum size were preferred because these species are 
easily identified, not overfished or experiencing overfishing, do not 
commonly reach the current 4.5 foot fork length minimum size limit, and 
are important recreational catches in some regions. Exceptions for 
other SCS species were not analyzed in Amendment 1 because of 
difficulties with identification (e.g., blacknose sharks) or because 
they are currently experiencing overfishing (e.g., finetooth sharks).
    Concerning the safety of anglers who are required to measure live 
sharks in order to retain them, NMFS recommends that anglers mark areas 
on the outside of fishing vessel hulls (e.g., at the waterline or boot 
stripe) with the minimum size. If a shark is smaller than this 
measurement or if it is a prohibited species, it should be released.
    Comment 2: Information on proper release techniques and equipment 
should be made available to the recreational sector.

[[Page 74755]]

    Response: Workshops demonstrating proper handling and release 
techniques for finfish, sharks, and protected resources, and discussing 
regulations and species identification could reduce bycatch mortality, 
improve compliance with current regulations, and improve accuracy of 
reported data. NMFS intends to move forward with requiring 
participation in mandatory workshops in a future rulemaking and will 
attempt to make voluntary workshops available to the public in the 
interim.
C. Authorized Gears
    Comment 1: NMFS received a range of comments regarding authorized 
gears, including: We support the preferred alternative. Recreational 
fishing techniques should be limited to rod and reel and handlines. 
Spearfishing gear should also be added to the list of allowable 
recreational fishing gears. Bandit gear is not appropriate for the 
recreational fishery. Bandit gear should be an allowable gear. Harpoon 
gear should be added to the list because many fishermen feel it is 
easier and safer to use harpoons than gaffs.
    Response: Rod and reel and handline gear are appropriate gears for 
the recreational shark fishery, because they have lower bycatch and 
bycatch mortality of sharks, finfish, and protected species, and are 
being used in other recreational HMS fisheries. Bandit gear was not 
selected because it has traditionally been considered a commercial 
fishing gear and because the vast majority of recreational fishermen 
use rod and reel or handline gear. Spearfishing gear has not been an 
allowable gear in the recreational shark fishery and therefore was not 
included. However, implements used to secure rod and reel or handline 
catches alongside a vessel (e.g., gaffs and harpoons) are being 
allowed.
    Comment 2: Limiting the recreational fishery to handline and rod 
and reel would prohibit landings by recreational gillnet fishermen.
    Response: This is correct. All sharks caught recreationally with 
gears other than rod and reel and handline in Federal waters must be 
released. NMFS does not believe that this measure will increase 
discards substantially, because the vast majority of recreational 
fishermen already use rod and reel or handline gear and recreational 
fishermen, including those using gillnets, have been limited to one 
shark per vessel per trip since 1999.
    Comment 3: NMFS should provide a provision that would allow 
disabled anglers who cannot hold the gear to fish.
    Response: NMFS will continue to allow fishermen who are unable to 
operate rod and reel or handline gear to apply for an EFP that would 
allow them to fish for sharks recreationally with alternative gear.

4. Bycatch Reduction Management Measures

A. Gear Restrictions
    i. Authorized gear.
    Comment 1: NMFS received a range of comments regarding the proposed 
regulation to ban drift gillnet fishing and allow strikenet fishing 
only, including: Strikenetting and drift gillnetting should be stopped. 
No observations of these gear types is accurate. Because of bycatch 
problems, many states have passed regulations banning drift gillnets; 
therefore, NMFS should as well. Gillnets should not be allowed because, 
in addition to unacceptable levels of bycatch of sea turtles, marine 
mammals, red drum, tarpon, and other game fish, the small shark gillnet 
fishery in Federal waters off Georgia drains limited law enforcement 
resources that are needed elsewhere. We support the preferred 
alternative allowing strikenets only if observer coverage is maintained 
to document a reduction in bycatch. If there is no reduction, this gear 
type should be removed from the list of authorized gear types. There is 
no reason to close the shark gillnet fishery because bycatch of 
protected resources is within the allowance for those species. NMFS 
should not eliminate a viable fishery that has reliable observer 
science behind it. There are only five vessels remaining in the 
fishery, which is down from the historic twelve vessels that used to 
participate.
    Response: The intent of the proposed bycatch alternatives were to 
minimize bycatch and bycatch mortality to the extent practicable. The 
strikenet only alternative minimizes interactions with protected 
resources and reduces the bycatch of non-target species, while allowing 
the commercial shark gillnet fishery to operate. However, NMFS received 
public comment that allowing the use of strikenets only would not 
accomplish this objective because strikenet gear cannot target SCS. 
Therefore, the final regulations permit the use of drift gillnets with 
possible gear modifications or other measures being implemented through 
a future rulemaking, based upon further study.
    Comment 2: The State of Georgia has requested a ban on gillnets 
since 1992 and continues to request this ban. Because Georgia has 
banned gillnets, the presence of a gillnet fishery in adjacent Federal 
waters compromises State management and regulatory statutes and does 
not meet the standards for consistency required under Georgia's Coastal 
Zone Management Act (CZMA) program. Using Global Positioning System 
(GPS) technology, it may be possible for NMFS to close the Exclusive 
Economic Zone (EEZ) to gillnets adjacent to Georgia to alleviate 
ongoing consistency and enforcement problems.
    Response: The CZMA (1972, reauthorized 1996) requires that Federal 
actions be consistent with the enforceable policies of all state 
coastal zone management programs. NMFS has determined that the final 
actions in Amendment 1 and this rule, which seek to rebuild the LCS 
complex, prevent overfishing of the LCS complex, and prevent 
overfishing of other species of sharks, will be implemented in a manner 
consistent to the maximum extent practicable with the enforceable 
policies of the coastal states in the Atlantic, Gulf of Mexico, and 
Caribbean that have federally approved coastal zone management 
programs.
    The State of Georgia objects to the consistency determination due 
to the continuing operation of the shark gillnet fishery in Federal 
waters. NMFS has analyzed several bycatch alternatives in Amendment 1, 
including elimination of the shark gillnet fishery. However, data 
currently available indicate relatively low rates of bycatch and 
bycatch mortality of protected species and other finfish in this 
fishery. In the Biological Opinion (BiOp) conducted for this 
rulemaking, NMFS determined that the continued operation of the shark 
gillnet fishery would not jeopardize any endangered or threatened 
resources and issued a new incidental take statement for the fishery. 
Therefore, NMFS is not prohibiting the use of this gear at this time, 
consistent with National Standard 2 which requires that management 
measures be based on the best scientific information available. NMFS is 
finalizing a measure that will require all shark gillnet vessels to 
install and activate a VMS during right whale calving season, and will 
examine gear modifications or other alternatives to reduce bycatch and 
bycatch mortality in future rulemakings. NMFS will also work with 
existing take reduction teams and relevant Fishery Management Councils 
to examine methods of reducing bycatch. Thus, NMFS finds that the final 
regulations implemented in Amendment 1 are consistent with Georgia's 
Coastal Zone Management Program to the maximum extent practicable.
    Comment 3: If only strikenetting is allowed, the State of Georgia 
would continue to ask for 100 percent observer

[[Page 74756]]

coverage because the reduction of bycatch using strikenet gear in or 
near Georgia waters has not been adequately investigated. Unlike the 
waters off Florida, the waters off Georgia are highly turbid. Without 
adequate observer data, allowing strikenetting for sharks is not a 
risk-averse strategy to reduce bycatch.
    Response: This rule does not remove gillnet gear from the list of 
authorized gears in the commercial shark fishery. The Agency 
understands the concerns about the need for adequate observer data 
documenting gillnet operations and catch near Georgia waters and will 
continue to monitor catch and bycatch, protected species interactions, 
and fishery characteristics through continued observer coverage.
    Comment 4: Many states ban both longling and gillnetting without 
adequate data. If longlines are allowed in Federal waters, then 
gillnets should similarly be allowed.
    Response: NMFS has banned gear types (e.g., gillnets in the 
swordfish fishery) and restricted the use of other gear types (e.g., 
area closures in the pelagic longline fishery) for a variety of reasons 
including reducing bycatch and bycatch mortality. In this case, NMFS is 
not removing gillnet gear from the list of authorized gears at this 
time.
    Comment 5: Blacktip and Atlantic sharpnose sharks make up the 
majority of our drift gillnet landings and are not overfished or 
experiencing overfishing according to the latest stock assessments. Our 
biggest discard species in the LCS fishery are rays. In the small 
coastal shark fishery, our biggest discard species is king mackerel and 
we have petitioned the South Atlantic Fishery Management Council to 
allow us to retain more of this catch per trip.
    Response: The latest LCS and SCS stock assessments indicate that 
Atlantic sharpnose and blacktip sharks are not overfished and 
overfishing is not occurring. In regard to the reduction of bycatch and 
discards, NMFS supports the reduction of bycatch, including regulatory 
discards, in HMS fisheries. According to 2002 shark gillnet fishery 
observer data, king mackerel was observed to be the species most 
commonly discarded from drift gillnet sets, with approximately 248 fish 
discarded; however, great barracuda (approximately 4 fish) and cownose 
rays (one fish) were observed to be the most commonly discarded species 
from strikenet sets. Little tunny, king mackerel, and great barracuda 
were the three non-target species most commonly observed caught in the 
shark gillnet fishery in 2002. In a future rulemaking, NMFS will 
consider additional alternatives such as gear modifications to reduce 
bycatch of all species in the gillnet fishery.
    Comment 6: The preferred alternative allowing only strikenet gear 
appears as if the Agency is trying to supercede the actions of both the 
Atlantic Large Whale Take Reduction Plan and the Bottlenose Dolphin 
Take Reduction Plan. Negotiated actions with members working on these 
plans are about to become final. If NMFS eliminates the use of gillnet 
gear, it would be wrong and set a dangerous precedent. Instead, NMFS 
should start a buyout program for these vessels and regularly attend 
take reduction plan meetings. There is no support from either take 
reduction team to ban drift gillnetting.
    Response: As part of this rulemaking, NMFS analyzed the impacts of 
various bycatch alternatives on bycatch species and protected resources 
in an attempt to minimize bycatch and bycatch mortality in HMS 
fisheries to the extent practicable. In this final action, NMFS is not 
implementing measures to limit or remove gillnet gear from the list of 
authorized gears. A buyout program is beyond the scope of this 
rulemaking, but could be considered in the future should funding become 
available.
    Comment 7: The only way to fish for small sharpnose sharks is with 
a drift gillnet in deep water. Strikenet gear will not work because it 
only catches large coastal sharks.
    Response: NMFS has reviewed available shark gillnet fishery 
observer data and agrees that strikenet gear does not appear to be 
effective at catching Atlantic sharpnose sharks. For this reason, and 
reasons discussed above, drift gillnet gear will not be banned in this 
rulemaking.
    Comment 8: Enforcement efforts in the EEZ could be complicated due 
to similarities between drift gillnet and strikenet gear.
    Response: NMFS agrees that enforcement efforts could be complicated 
due to similarities between drift gillnet and stikenet gear. For this 
reason, and reasons discussed above, drift gillnet gear will not be 
banned in this rulemaking.
    Comment 9: The five vessels actively using drift gillnet should be 
given gillnet endorsements on their directed shark permits to limit 
entry into the fishery. NMFS should consider allowing the five fishing 
vessels currently in the fishery to continue and prevent any new 
vessels from entering the fishery.
    Response: NMFS did not consider specific permit endorsements in 
this rulemaking, but may consider options to limit vessel participation 
in the shark gillnet fishery in the future.
    Comment 10: NMFS received several comments regarding the 
modification of shark gillnet gear to reduce protected resources 
interactions. The comments include: Instead of banning the gear, NMFS 
should reduce the allowable length of the gear. NMFS should consider 
gear modifications to reduce bycatch. My vessel accounted for a large 
number of interactions between marine mammals and sea turtles until I 
replaced a large section of my gear; while I still have some 
interactions with them, they swim away unharmed and are observed to be 
healthy. I used new gear this past summer with tighter mesh and this 
increased my sharpnose catch and decreased my interactions with 
protected species. Fishermen who use shark drift gillnet gear have 
adapted their gear using corks to keep the gear high in the water and 
allow any entangled turtles to get to the surface and survive. 
Fishermen who do not usually fish in the fishery or who use stab nets 
are the fishermen who catch dead turtles. Instead of banning drift 
gillnets, NMFS should consider the use of pingers to reduce 
interactions with protected species.
    Response: Gear modifications have been shown to be effective in 
other fisheries; however, some modification measures can be difficult 
to enforce or can be circumvented by altering fishing patterns, 
resulting in no bycatch reduction. NMFS continues to support research 
projects regarding effectiveness of gear modifications, to the extent 
that funding allows, and will consider the possibility gear 
modifications in a future rulemaking.
    Comment 11: NMFS received several comments regarding sea turtle 
interactions in the shark gillnet fishery. The comments include: In 
terms of actual numbers, relatively few sea turtles have been captured 
in the shark gillnet fisheries. While this fishery is supposed to have 
high levels of observer coverage, this is not always the case. As noted 
in the June 2001 BiOp, this fishery can have a large impact on 
leatherback sea turtles at a time when reproductive females are in the 
area. I have been fishing 18 years and carried an observer for 10 
years; in those 10 years, I have only caught one sea turtle.
    Response: The best available information indicates that relatively 
few sea turtles have been captured in the shark gillnet fishery. The 
October 2003 BiOp estimated that over a five-year period the expected 
take of sea turtles in the shark gillnet fishery would be 10 total 
loggerhead sea turtle captures with one mortality, and 22 total 
leatherback sea turtles captures with three mortalities. The BiOp 
concluded that

[[Page 74757]]

the continued operation of the shark fisheries, including the shark 
gillnet fishery, are not likely to jeopardize the continued existence 
of the endangered Kemp's Ridley, green, hawksbill, and leatherback sea 
turtles, and the threatened loggerhead sea turtle. Although there were 
multiple interactions with leatherback turtles during 2001, NMFS 
believes this was an anomalous event, possibly associated with changes 
in environmental conditions. NMFS believes that events such as this can 
be mitigated through observer coverage, gear modifications, and 
enforcement.
    Comment 12: I can strike at sharks without ``striking'' as you 
define it. I do not use the second vessel.
    Response: NMFS is aware that some vessels have experimented with 
setting strikenet without using a second vessel. To the extent that 
these methods are more economical for fishermen, NMFS supports these 
methods. However, the use of shark strikenet gear in a method 
inconsistent with the current definitions inside the restricted area 
could constitute a violation. Requirements for strikenet vessels 
operating in the restricted area are described in the Atlantic Large 
Whale Take Reduction Plan regulations.
    Comment 13: NMFS says that only six vessels are in the drift 
gillnet fishery. There are actually about a dozen that would be 
affected.
    Response: The best available information indicates that there are 
five vessels that actively target sharks in the shark gillnet fishery. 
NMFS believes that there are a number of fishermen who land sharks 
incidental to their target species in other gillnet fisheries (e.g, 
bluefish, croaker, mackerel). All of these fishermen are affected by 
the general management measures such as changes in the commercial quota 
and the establishment of regional quotas. However, only those fishermen 
who actively targeted sharks would have been affected by the proposed 
measure to prohibit drift gillnet gear. NMFS is not finalizing that 
prohibition in this rule.
    Comment 14: The bycatch of red drum in the shark gillnet fishery is 
of serious concern, given interstate effort to reduce bycatch of this 
species. Red drum is an overfished species whose harvest is strictly 
regulated with slot limits to promote its recovery.
    Response: Red drum is caught incidentally in the shark gillnet 
fishery. However, the limited amounts of observed bycatch of this 
species in the shark gillnet fishery is not expected to impede recovery 
of the stock. Observer data indicate that the shark gillnet fishery 
does not catch large numbers of red drum. In 2002, 28 red drum were 
observed caught, of which, 50 percent were released alive.
    Comment 15: Finetooth sharks are rare in trawl catches off Georgia. 
However, significant numbers are taken by the shark drift gillnet 
fishery. Elimination of the shark drift gillnet fishery would 
contribute towards reducing the overfishing of finetooth sharks.
    Response: The shark gillnet fishery has been observed to target 
Atlantic sharpnose and blacktip sharks. Elimination of the shark drift 
gillnet fishery would not be expected to reduce significantly 
overfishing of finetooth sharks, because they are not a target species. 
In 2002, 21,978 sharks were observed caught in the shark gillnet 
fishery. Of those sharks observed caught, 1,615 (7.3 percent) were 
finetooth sharks.
    Comment 16: The Atlantic sharpnose I catch have stomachs full of 
juvenile sea turtles. NMFS should calculate how many sea turtles are 
saved by allowing the drift gillnet fishery to continue.
    Response: NMFS is concerned with all sources of mortality for 
protected resources and realizes that the ecosystem as a whole needs to 
be considered when rebuilding species. However, NMFS' can only 
influence and mitigate anthropogenic sources of mortality, 
specifically, those due to interactions with fishing gear within NMFS' 
jurisdiction.
    ii. VMS.
    Comment 1: The use of VMS on bottom longline and gillnet vessels, 
combined with time/area closures to protect juveniles, may help reduce 
mortality of vulnerable shark stocks beyond what the quota cuts will 
achieve.
    Response: The preferred time/area closure is designed to reduce 
bycatch and mortality of neonate and juvenile dusky and sandbar sharks 
in a known pupping and nursery area. The preferred time/area closure 
could reduce fishing mortality on the stages that contribute the most 
to population growth. The use of VMS on shark bottom longline and 
gillnet vessels will contribute to the enforcement of time/area 
closures and may enhance the rebuilding of LCS to maximum sustainable 
yield.
    Comment 2: As a gillnet fisherman, I prefer observers over VMS.
    Response: While NMFS understands that individual fishermen may 
prefer using observers over VMS, the VMS alternative is preferred as an 
aid in enforcing time/area closures. Fishery observers are used to 
monitor catch and bycatch, protected species interactions, and fishery 
characteristics, and not used specifically for enforcement purposes.
    Comment 3: One commenter was concerned with the utilization of VMS 
to monitor activities when vessels are engaged in normal fishing 
operations and not operating illegally.
    Response: Currently, VMS is used in many fisheries managed by NMFS. 
VMS is the best technology at this time for monitoring vessel 
locations. It can be used by NMFS to reduce observer program costs, 
improve the enforcement of time/area closures, to deter illegal 
fishing, and to increase the efficiency of surveillance patrols. With 
respect to the shark gillnet and bottom longline time/area closures in 
particular, the size of the closed areas significantly diminishes the 
likelihood of detection through conventional means. Traditional methods 
of surveillance in these areas would be cost prohibitive. Other 
possible benefits of the VMS include increased safety at sea and 
dependable and confidential communications.
    Comment 4: If VMS is implemented, NMFS should hold operators, not 
vessel owners, responsible for violations because the owner has little 
control over what the operator does with the vessel once it leaves the 
dock.
    Response: NMFS is aware of vessel owners' concerns, however, for 
enforcement purposes, both vessel owners and operators will continue to 
be subject to liability for violations. Vessel owners can employ or 
terminate operators based on their compliance with fishery regulations.
    Comment 5: VMS should be phased in to reduce negative economic 
impacts and blended with a communication adaptation that the U.S. Coast 
Guard uses as a homeland security technique.
    Response: The VMS requirement will only be required for five shark 
gillnet vessels and any shark bottom longline vessels operating near 
the time/area closure (approximately 14 vessels). Because this measure 
will be required for only a select few vessels, it can be implemented 
with minimal economic impacts and will not affect the vast majority of 
the shark fishing fleet. To minimize impacts and to give time to NMFS 
to issue a type approval notice, NMFS is delaying the effective date of 
VMS in the shark fishery. In regards to communications adaptions and 
uses of VMS for homeland security, NMFS supports these uses.
    Comment 6: NMFS received several comments regarding the number of 
vessels required to install and activate a VMS unit. The comments 
include: VMS is required for all pelagic longline vessels, why would it 
only be required for a portion of the bottom longline

[[Page 74758]]

fleet? VMS should be expanded to all vessels all-year round.
    Response: VMS is required for all pelagic longline vessels to aid 
in the enforcement of multiple large scale closed areas in a highly 
mobile fishery. In addition to approximately five shark gillnet 
vessels, the VMS requirement analyzed in this rule would require 
vessels located near the time/area closure (approximately 14 vessels) 
to install and activate a VMS unit. Analyses indicate that while 
vessels in the pelagic longline fleet are highly mobile, vessels in the 
bottom longline fleet rarely fish far from their reported homeport. 
Thus, NMFS believes that requiring VMS for only that sub-population of 
the shark fishing fleet that fishes in the vicinity of the time/area 
closures is appropriate because the intent of the measure is to monitor 
vessel activity to ensure that time/area closures are effective.
    Comment 7: If gillnet gear remains authorized for use in the shark 
fishery, VMS must be mandatory to ensure compliance during right whale 
calving season and to facilitate cooperative state/Federal enforcement 
efforts to monitor this fishery.
    Response: The final action requires shark gillnet vessels to 
install and activate VMS units during the right whale calving season 
(November 15-March 31). This measure is expected to facilitate 
enforcement efforts.
    iii. Other Gear Restrictions.
    Comment 1: We support all of the alternatives being considered 
including limited soak times, reducing the length of the gear, and, 
especially requiring circle hooks. Reducing soak time and requiring the 
use of circle hooks could be an effective means of protecting juvenile 
sharks. These measures could reduce discard mortality of dusky sharks, 
which remains a candidate for listing under ESA, and other bycatch 
species.
    Response: NMFS considered multiple gear restriction alternatives in 
Amendment 1. The preferred alternatives that require VMS on a sub 
population of commercial shark fishing vessels as well as require shark 
bottom longline vessels to use corrodible hooks, possess release 
equipment, and move one nautical mile after an interaction with a 
protected species.
    Comment 2: It is unclear from the analyses presented in the draft 
amendment whether the most effective measure to reduce mortality of 
small sharks would be a series of time/area closures, a minimum size 
combined with measures to reduce bycatch, or some other plan. 
Therefore, we express support for measures that seem likely to reduce 
juvenile shark mortality, especially area closures. However, we 
encourage NMFS to do a more thorough analysis of the effectiveness of 
each bycatch reduction measure and to develop a comprehensive bycatch 
reduction plan.
    Response: NMFS believes that a combination of measures will be most 
effective in reducing bycatch and bycatch mortality of protected 
species and small sharks in the shark fishery. Thus, NMFS is 
implementing a time/area closure, a requirement to possess and use 
release equipment, and a minimum size in the recreational fishery. NMFS 
has also issued an implementation plan to enhance current bycatch 
reduction efforts in HMS fisheries under the guidance of the 1998 NMFS 
Report, Managing the Nation's Bycatch. This report, which is posted on 
the NMFS website, contains the Agency's national bycatch goal, which is 
``to implement conservation and management measures for living marine 
resources that will minimize, the extent practicable, bycatch and the 
mortality of bycatch that cannot be avoided.'' The NMFS National 
Bycatch Strategy and the HMS Bycatch Implementation Plan are discussed 
in Amendment 1.
    Comment 3: The requirement of non-stainless steel corrodible hooks 
should be readily accepted by the industry and, because most vessels 
already use these hooks, there will be little or no economic hardships 
or changes in fishing practices. These hooks corrode in a much shorter 
period of time and would decrease impairment of feeding and wounding of 
sea turtles and thus, increase post-release survival.
    Response: NMFS agrees and is implementing a requirement for their 
use on shark bottom longline vessels.
    Comment 4: NMFS received several comments regarding the requirement 
for shark bottom longline vessels to move one nautical mile after an 
interaction with a marine mammal or sea turtle. The comments include: 
Requiring vessels to move one nautical mile after an interaction with a 
sea turtle or marine mammal should not significantly affect normal 
fishing operations because most vessels already move more than one mile 
after hauling their gear particularly if the set caught sea turtles or 
a lot of juvenile sharks. Some vessels travel substantially further to 
dump carcasses from dressed fish in order to prevent contamination of 
the fishing grounds. Requiring a vessel to move after an interaction 
with a protected species can be difficult to enforce unless enforcement 
personnel are on the scene when the gear is retrieved. If sea turtles 
are caught in gear, the vessel should move 20 nautical miles away, not 
one.
    Response: NMFS believes that the requirement for shark bottom 
longline vessels to move one nautical mile after an interaction with a 
protected species is appropriate for the shark bottom longline fishery. 
This requirement would reduce the probability of another interaction 
with a protected species because marine mammals, sawfish, and sea 
turtles often aggregate in clusters. By requiring vessels to move after 
an interaction, the vessel would increase the likelihood of avoiding 
additional animals in a cluster when setting subsequent gear. This 
requirement could increase fuel costs due to increased the time 
transiting to another fishing area and increase time needed to fish if 
alternate fishing grounds are not as productive for target species. 
However, because few marine mammals, sawfish, 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. 
Moreover, NMFS expects that vessels will comply with the requirement 
because, during normal fishing practices, vessels may already move more 
than one mile after hauling their gear. Moving more than one mile 
increases the chance of a vessel encountering another cluster of 
protected species.
    Comment 5: NMFS received several comments regarding the possession 
of release equipment on shark bottom longline vessels. The comments 
include: The safe removal of hooks and line before release can 
dramatically increase the chances of survival of the released bycatch 
and has been endorsed by the U.S. pelagic longline fleet, ICCAT, Inter-
American Tropical Tuna Commission (IATTC), and various non-governmental 
organizations (NGOs). The Southeast Fisheries Science Center has 
developed a line cutter that is safe and effective in removing line 
from entangled marine mammals and sea turtles in the pelagic longline 
fishery. Vessels that can boat smaller sea turtles should boat them in 
order to better control their gear removal procedures. Dehooking 
devices, line cutters, and dip nets are relatively simple to use and 
techniques can easily be transferred from fishery to fishery and nation 
to nation.
    Response: NMFS agrees that there are benefits of using release 
equipment and is implementing an alternative that will require the 
possession of release equipment on shark bottom longline vessels.
    Comment 6: Requiring workshops to certify that a permit holder has 
passed a training course on the proper use of

[[Page 74759]]

release equipment would aid enforcement and be more cost effective as a 
whole. These workshops could also serve as an educational forum for 
fishermen to learn the latest research and regulations, share concepts 
for their fishery that could be transferred to other fisheries (e.g., 
recreational to commercial), gain a feeling of stewardship of the 
environment and their fishery, learn release techniques in a controlled 
environment, and develop and promote educational video tapes or 
literature. The workshops would also give fishermen a chance to talk 
to, and receive answers from, people in NMFS about regulations they do 
not understand. This could lead to a better working relationship over 
time.
    Response: NMFS intends to move forward with this measure in a 
future rulemaking that will evaluate alternatives and implementation 
issues. In the interim, NMFS will attempt to make voluntary workshops 
available to the public.
    Comment 7: We remain deeply concerned that NMFS has failed to offer 
options for increasing compliance in the recreational fishery after 
repeatedly acknowledging that anglers do not adhere to the shark 
regulations and that this non-compliance may be inhibiting stock 
rebuilding. We urge NMFS to develop programs for angler education in 
species identification and other efforts to improve compliance. Angler 
training should be a pre-requisite for obtaining an HMS Angling 
category permit.
    Response: NMFS agrees that angler education could significantly 
improve compliance in the recreational shark fishery. In Amendment 1, 
NMFS analyzed an alternative that would require commercial and 
recreational fishermen to attend mandatory workshops discussing shark 
(and possibly other) species identification, marine mammal, sawfish, 
and sea turtle release techniques, and current regulations. NMFS 
received public comment in favor of mandatory workshops, and while it 
appears that mandatory workshops would be beneficial, outstanding 
implementation and operational issues remain that need to be addressed. 
Based on these issues, NMFS intends to move forward with this measure 
in a future rulemaking, and will attempt to make voluntary workshops, 
informational pamphlets, and an identification guide available in the 
interim.
    Comment 8: At this time, we cannot support mandatory workshops. 
Rather, increased fiscal and other agency resources need to be expanded 
to significantly increase the distribution and availability of 
educational materials such as improved printed materials, electronic 
media, and more. Specific instructional/training workshops should be 
developed to focus on commercial fishing fleets/organizations, charter 
fishermen, tournament organizers, Marine Recreational Fisheries 
Statistics Survey (MRFSS)/other survey clerks, state/federal 
enforcement agencies, and more. Partnerships with other federal and 
state agencies to distribute this material should be explored.
    Response: NMFS is working to increase outreach and available 
educational materials. Currently, NMFS is distributing Atlantic shark 
recreational fishery brochures containing information regarding HMS 
Angling category permits, HMS Charter/Headboat permits, bag limits and 
minimum sizes, release information, landing restrictions, the no sale 
provision, HMS tournament registration, tagging information, as well as 
species that may be retained, and species that must be released. NMFS 
is also currently producing an identification guide for sharks, tunas, 
and billfishes of the Atlantic and Gulf of Mexico. As discussed above, 
NMFS will explore mandatory workshops in a future rulemaking.
    Comment 9: While the United States is trying to protect sea 
turtles, fishermen in Florida watch fishermen just outside the U.S. EEZ 
in Cuba and the Bahamas kill them. I recently watched one vessel in the 
Bahamas kill 39 sea turtles.
    Response: Sea turtles are classified as endangered or threatened 
species in the United States and NMFS has implemented many measures to 
conserve these species. NMFS does not have the authority to determine 
how neighboring countries manage their resources, but will continue to 
pursue improvements in international sea turtle conservation measures.
    Comment 10: Amendment 1 does not adequately address the incidental 
capture of threatened and endangered sea turtles in shark fisheries, 
especially shark bottom longlines. Reducing the rate of bycatch and 
reducing the mortality of sea turtles needs to be a primary priority. 
The impact of shark fisheries on sea turtles appears to be purposefully 
masked by key omissions in Amendment 1 about the level of sea turtle 
take and associated past-hooking mortality. The June 2001 BiOp 
estimates that 207 to 517 loggerheads are caught in the shark bottom 
longline fishery annually. Many of these animals probably die after 
release. Significantly more observer coverage is needed to improve 
confidence intervals. Amendment 1 fails to estimate and discuss the 
implications of post-hooking mortality of sea turtles. The June 2001 
BiOp provides estimates of post-hooking mortality on pelagic longlines. 
This mortality rate in bottom longlines is expected to be higher 
because the turtles are trapped on the bottom unable to breathe. 
Because effort in shark fisheries has increased since 2001, many 
hundreds of sea turtles are being killed annually in shark longline 
fisheries.
    Response: NMFS Protected Resources Division has prepared a new BiOp 
for this rulemaking that analyzes the incidental capture of protected 
resources in the shark fisheries. An estimated 222 loggerhead sea 
turtles were incidentally caught in the shark bottom longline fishery 
from 1994 through 2002. Based on observer data and the reported effort 
in the shark bottom longline fishery, it is estimated that 51 
loggerhead turtles will be killed as a result of an interaction with a 
bottom longline. The highest estimate of post release mortality for sea 
turtles interacting with pelagic longlines is 42 percent for turtles 
ingesting hooks. Assuming all loggerhead turtles that ingest a hook are 
subject to this mortality rate, results in another 72 loggerhead 
turtles will be killed. This gives a total of 123 loggerhead turtles 
killed per year as a result of an interaction with a bottom longline. 
An estimate of 30 leatherback sea turtles were incidentally caught from 
1994 through 2002 in the shark bottom longline fishery. Using the same 
methodology for leatherback sea turtle interactions results in an 
estimate of 17 leatherback turtles killed each year in this fishery. 
The leatherback mortality is very conservative because it is known that 
leatherback turtles rarely ingest or bite hooks, most are usually foul 
hooked on their flippers or carapaces, reducing the likelihood of post-
hooking release mortality. However, leatherback-specific data for this 
fishery are not available and therefore the most conservative estimate 
was used. NMFS agrees that the precision of the estimates is likely to 
improve with greater observer coverage. One of the conditions of the 
BiOp is that NMFS must continue to implement an observer program at 
current or higher levels to monitor incidental takes of protected 
resources in Atlantic (including Gulf of Mexico) shark fisheries. NMFS 
disagrees that effort in shark fisheries has increased since 2001. 
Based on reported effort in the logbook data and the observer programs, 
the total number of hooks set in the shark bottom longline fishery in 
2000-2002, ranged from 2.5 to 2.7 million hooks per year. This level of

[[Page 74760]]

effort is approximately 62 percent less than the reported effort in 
1996. In addition, based on current and historical participation, 
implementation of limited access in the shark fisheries reduced the 
number of shark permit holders from over 2,200 before limited access to 
584 in October of 2003.
    Comment 11: Only one alternative addresses sea turtle bycatch by 
recommending that fishing vessels move one nautical mile after an 
interaction with a sea turtle. Dip nets and line cutters should also be 
required.
    Response: To reduce sea turtle mortality, NMFS is implementing an 
alternative that will require vessels with shark bottom longline gear 
to use corrodible hooks, possess release equipment (line cutters, dip 
nets, and when approved, dehooking devices), as well as move one 
nautical mile after an interaction with a marine mammal or sea turtle.
    Comment 12: NMFS needs to conduct experiments to determine if 
circle hooks are effective in reducing the number of turtles caught and 
the position of the hooks in captured animals.
    Response: The June 14, 2001, BiOp included a recommendation that 
NMFS conduct a three-year experimental fishery in the northeast distant 
statistical reporting area (NED) to attempt to reduce the interactions 
between pelagic longline gear and sea turtles. In the summer and fall 
of 2002, tested the use of circle hooks, mackerel bait, and shortened 
daylight soak time to examine their usefulness in reducing the capture 
of sea turtles. Although NMFS did not specifically investigate the use 
of circle hooks to reduce interactions with sea turtles in the shark 
bottom longline fishery, information from the NED experiments could be 
transferable to or provide helpful information for other fisheries.
    Comment 13: We support the preferred alternatives of line cutters, 
dip nets, and dehooking devices and feel they would reduce mortality by 
recreational fishermen as well.
    Response: Release gear may be beneficial in recreational fisheries; 
however, requiring this equipment for anglers who generally do not use 
heavy monofilament line and rarely encounter protected species is not 
practical at this time. NMFS does support the voluntary use of release 
gear in recreational shark fisheries.
    Comment 14: NMFS should consider a variation of the no discard 
alternative (retention of all sharks with no discards allowed) in order 
to encourage reducing regulatory discards. This is possible but not 
practicable in today's marketplace and would be tough to enforce. Other 
portions of the regulations, such as no filleting at sea or the current 
trip limit, would need to be changed.
    Response: NMFS analyzed the no-discard alternative and determined 
that it could virtually eliminate the bycatch of sharks in the 
commercial shark fishery and reduce fishing effort needed to reach trip 
limits and fill quotas, thereby reducing potential interactions with 
prohibited species. However, this alternative could also increase the 
mortality of juvenile sharks, prohibited species, and other sharks not 
normally retained. Fishermen may also illegally high-grade and discard 
less marketable species to avoid reaching the trip limit, increasing 
waste. If no discards were allowed, trip limits and quotas could be 
reached more quickly, resulting in derby fishing conditions. Derby 
conditions may result in depressed ex-vessel prices, reduced revenues, 
market gluts, and concerns for the safety of fishermen at sea. Due to 
ecological, social, and economic concerns, NMFS does not believe this 
alternative is appropriate for the commercial shark fishery at this 
time. NMFS may consider a variation of this alternative in a future 
rulemaking.
    Comment 15: NMFS received several comments regarding bycatch of 
sharks and non-target species. The comments include: Amendment 1 does 
not contain a comprehensive strategy to avoid and reduce shark bycatch, 
as mandated by law. For years NMFS has highlighted the shrimp trawl and 
menhaden purse seine fisheries as problem fisheries for shark bycatch, 
yet NMFS has not offered any suggestion on how to address these bycatch 
sources. NMFS must take action to address these continual problems. The 
non-targeted species and sub-legal bycatch that are routinely discarded 
as a result of indiscriminate gillnets and longlines is disturbing and 
a waste of our marine resources.
    Response: Bycatch of sharks in trawl, set-net, and hook and line 
fisheries is discussed in Amendment 1. In this rule, NMFS specifically 
addresses shark bycatch in HMS fisheries by implementing several 
measures designed to reduce bycatch and bycatch mortality including: a 
time/area closure, VMS requirements for shark bottom longline and 
gillnet vessels, requiring the use of corrodible hooks, and requiring 
the possession of release equipment (line cutters, dipnets, and, when 
approved, dehooking devices). As described above, NMFS has also issued 
a bycatch implementation plan.
    Comment 16: NMFS needs to examine the bycatch of sharks in monk 
fishing gear.
    Response: NMFS will investigate the bycatch of sharks in a number 
of fisheries to determine if measures are needed to minimize shark 
bycatch and bycatch mortality.
B. Time/Area Closure
    Comment 1: NMFS received several comments regarding the use of 
time/area closures in general. These included: NMFS should establish 
sanctuaries for all fish species. The entire fishery should be closed 
from January through July to protect pupping females and pups. NMFS 
should implement seasonal closures to longlines and gillnets in coastal 
nursery grounds to protect all shark species.
    Response: The time/area closure is based on specific information 
from the shark bottom longline observer program that indicates a high 
proportion of prohibited dusky shark and juvenile sandbar sharks being 
caught off North Carolina from January through July. Closing the entire 
shark fishery from January through July is not warranted. The closure 
will afford some protection to all species that are caught on bottom 
longline gear during that time of year.
    Comment 2: One commenter noted that NMFS should implement the time/
area closure alternative that would close all shark nursing and pupping 
grounds based on EFH for neonate and juvenile sharks, in order to 
protect juvenile sharks from indiscriminate commercial gears. 
Alternatively, another commenter noted that they cannot support the 
blanket alternative for closing all pupping and nursery grounds because 
each proposal needs to be fully evaluated and based on acceptable 
understanding of stock status, life histories, and defined EFH for each 
species.
    Response: NMFS considered an alternative that would close all 
pupping and nursery grounds, i.e., nearly all coastal waters off the 
U.S. Atlantic coast and the Gulf of Mexico, but this final rule would 
implement a targeted time/area closure for a specific time period. 
Currently, there are insufficient data to support a closure of all EFH 
pupping and nursery areas. Moreover, a closure of all coastal waters 
would have had a severe economic impact on fishing communities.
    Comment 3: Any delay in implementation of closures may undermine 
management objectives.
    Response: Delayed effectiveness of time/area closures has been used 
in the past, and is a reasonable approach to allow fishermen to adjust 
to the regulations that affect fishing areas and to the potential 
economic changes incurred by a time/area closure.

[[Page 74761]]

    Comment 4: NMFS should consider time/area closures to protect adult 
dusky sharks as well as juveniles.
    Response: The time/area closure is based on information relating to 
all life stages of dusky sharks, including adults. The time/area 
closure is expected to reduce the catch of all dusky sharks by 
approximately 79 percent and adult dusky sharks by 65 percent.
    Comment 5: Any closure that is considered should be imposed on all 
commercial and recreational shark gear.
    Response: Recreational gears have the capability to release sharks 
alive, whereas many sharks, and dusky sharks in particular, have low 
survival rates when caught with commercial gear. This is due in part to 
the longer soak times required in the commercial fishery. Dusky sharks, 
for example, have an at-vessel mortality rate of 82 percent. If data in 
the future indicate adverse impacts from other gears, NMFS will 
consider closures for other gear types, including recreational.
    Comment 6: The Environmental Protection Agency (EPA) recommends 
marine protected areas (MPAs) for overfished stocks; marine protected 
areas for sharks that exhibit territorial behavior in breeding would 
likely benefit.
    Response: NMFS has selected an alternative that implements a 
targeted time/area closure to protect prohibited dusky sharks and 
juvenile sandbar sharks which are currently experiencing overfishing. 
This time/area closure is a type of MPA and is also an effective means 
to reduce fishing mortality and help rebuild stocks. Based on the best 
available scientific data, NMFS has taken steps to identify and protect 
EFH and Habitat Areas of Particular Concern (HAPCs) for both dusky and 
sandbar sharks. The time/area closure will prevent the catch of both 
pregnant females and neonates during the critical pupping stage.
    Comment 7: Any regulations imposing a closure should have a clear 
scientific exit strategy to reduce and/or eliminate the closure when 
scientifically justified.
    Response: NMFS agrees that closed areas should be re-opened when 
scientifically justified and will thus be reviewing the status of both 
dusky and sandbar sharks, the two species most affected by the time/
area closure, in the near future. Based on the status of those stock 
assessments and other information regarding the effectiveness of the 
closure, NMFS may consider revising the size and scope of the closure, 
the duration of the closure, and potentially elimination of the 
closure.
    Comment 8: NMFS received several comments specific to the proposed 
time/area closure. These comments included: Closing nursery areas has 
always been seen as one of the most beneficial management measures 
possible for sharks and has been recommended by nearly every shark 
stock assessment group assembled; thus we support the proposed time/
area closure and NMFS efforts to work with the two Fishery Management 
Councils to protect important state nursery waters. NMFS should close 
the proposed mid-Atlantic region to bottom longline fishing from 
January through July to protect nursery and pupping areas.
    Response: Time/area closures are an important tool in reducing 
mortality of prohibited species and juvenile life stages of sharks, and 
the current time/area closure will help to protect dusky sharks and 
rebuild sandbars sharks.
    Comment 9: NMFS should look at the fish being sold; this will show 
that the fishermen are not selling small sharks. NMFS should look at 
the average carcass weight, not length.
    Response: One of the principal reasons for the time/area closure 
was to protect prohibited dusky sharks, which are illegal to sell. 
Additionally, because dusky sharks do not mature until approximately 10 
ft (3 m) fork length (FL), even large dusky sharks are considered 
juveniles. For years, the shark observer program and many other 
researchers have been collecting length data for sharks because many 
sharks are released without being landed and weights would be difficult 
if not impossible to collect. The length-to-weight relationship is used 
by scientists to determine the life stage and sexual maturity of most 
fish species, including sharks. Shark bottom longline observer data 
show high rates of neonate and juvenile sandbar sharks less than 137 cm 
FL being caught and landed in the winter fishery off of North Carolina. 
The 137 cm FL corresponds to the recreational minimum size limit for 
sharks which is 4.5 feet FL. It also corresponds to the female smallest 
size at maturity. For instance, one data series for the winter fishery 
off North Carolina in 2001 shows approximately 83 percent of 1,188 
sandbar sharks observed caught were less than 137 cm FL, with an 
average length of approximately 120 cm FL. Sandbar shark pups are born 
from March to early August and measure about 60 cm FL at birth.
    Comment 10: The information used to support the time/area closure 
is flawed because shark observers are mis-identifying dusky sharks.
    Response: The commercial shark bottom longline fishery observers 
are trained to identify all species of sharks, including dusky sharks. 
NMFS acknowledges that some misidentification of sharks may occur, 
however, the preponderance of the data, including fishery independent 
data collected by researchers and trained biologists who participate in 
tagging efforts indicates that the area off North Carolina is a pupping 
and nursery area for dusky as well as sandbar sharks. NMFS did not rely 
solely on information from the shark observer program to make its 
determination for a time/area closure, but relies on many other data 
sources as well.
    Comment 11: Dusky shark catches before 1999 should not be 
considered because we could not land them then; since 1999, our catch 
of dusky sharks has decreased.
    Response: Since dusky sharks were prohibited in June 2000, the data 
from that point forward has been analyzed separately from earlier data 
in the final Amendment. However, it is also important to examine data 
prior to 2000 because it helps to establish the high rate of historical 
bycatch and the importance of the area as a pupping and nursery ground 
for both dusky and sandbar sharks. In analyzing the shorter time 
period, NMFS found that the number of dusky sharks being caught off 
North Carolina and elsewhere has declined since June 2000, but that a 
much higher percentage of dusky shark are observed caught in the time/
area closure than in other areas, particularly when the relatively 
small size of the time/area closure is compared to all other open areas 
of the Atlantic and Gulf of Mexico.
    Comment 12: We do not support the time/area closure at this time 
because of the significant economic and social impacts that would 
result in the affected fishing communities and the fact that the 
document does not sufficiently analyze the closure or enforcement of 
the closure. If done properly, a time/area closure can benefit all 
concerned; however, the proposed time/area closure is not reasonable. 
The decision to close the area seems to be driving the science.
    Response: The original time/area closure proposed in the draft 
Amendment would have closed a large area (31,487 square nautical miles) 
and may have had severe economic and social impacts. Based on public 
comments, NMFS re-analyzed the data and proposed a revised time/area 
closure of 4,490 square nautical miles in part to mitigate social and 
economic impacts on fishing communities in

[[Page 74762]]

North Carolina. The revised time/area closure will still be effective 
at reducing dusky catch by 79 percent, and neonate and juvenile sandbar 
catch by 55 percent.
    Comment 13: It is not clear if other measures are sufficient to 
rebuild sandbar and dusky sharks without the addition of time/area 
closures.
    Response: Rebuilding of dusky and sandbar sharks is based on the 
combination of management measures including the reduction in quota, 
the time/area closure, gear restrictions that should reduce post-
release mortality, and a minimum size on recreationally caught sharks. 
Without the time/area closure, NMFS would need to implement other 
reductions or restrictions in order to ensure that LCS are rebuilt 
within the necessary time frame.
    Comment 14: NMFS received a number of comments regarding the depth 
of the closures. Comments included: most nursery grounds are in 
nearshore areas; closing areas 20 fathoms in depth to the shore should 
be suitable to protect neonates and juveniles. NMFS does not need to 
close areas out to the 200 mile limit unless the desire is to fiercely 
impact these shark fishing entities. Regions outside of 20 fathoms 
should remain open. We question any justification for closing anything 
other than state waters during pupping seasons. We cannot support 
closures inside of 10, 20, or any other fathom mark at this time.
    Response: NMFS examined catches based on depth and found that both 
dusky sharks and juvenile sandbar sharks are caught at depths of up to 
50 fathoms. Since large numbers of sharks appear to be caught in a line 
along the 50 fathom contour, a buffer of approximately two miles was 
included to extend the seaward boundary of the time/area closure to 
approximately 60 to 80 fathoms. The time/area closure is one of the few 
known areas where shark pupping and nursery grounds extend into Federal 
waters. It is also one of the only areas designated as a HAPC (for 
sandbar sharks) in Federal waters.
    Comment 15: NMFS received several comments regarding the proposed 
time/area closure and the burden being placed on North Carolina 
fishermen. Comments included: Juvenile sharks are caught all along the 
coast and North Carolina fishermen are being targeted unfairly. If 
closures are needed to rebuild sharks, then fishermen in all states 
need to share the task, not just North Carolina fishermen. The time/
area closure is payback for previous lawsuits by the commercial 
industry.
    Response: Juvenile sharks are caught along much of the U.S. 
Atlantic and Gulf of Mexico coasts; however, the proportion of juvenile 
and neonate dusky and sandbar sharks being caught off North Carolina is 
substantially higher than in other areas. This is because the waters 
off North Carolina are pupping and nursery areas for these two species, 
and pregnant females, pups and juveniles aggregate in the area. EFH 
areas for both sandbar and dusky sharks, and HAPC areas for sandbar 
sharks have been designated off North Carolina. Data indicate that from 
1994-2002, 1,099 or 79 percent of all dusky sharks were caught in the 
time/area closure from January through July. Of these, 1,016 or 92 
percent were neonates or juveniles. Of the 12,445 sandbar sharks 
observed caught in the Atlantic from 1994-2002, 6,755 or 54 percent 
were caught in the time/area closure between January and July, of which 
61 percent were juveniles and neonates. While there may be other 
nursery and pupping areas in coastal waters, this is one of the only 
areas where such a high proportion of neonate and juvenile sharks have 
been documented being caught in Federal waters.
    Comment 16: The proposed time/area closure is absurd; the period 
should be April 1 through June 30 or maybe July 15. NMFS should not 
close the area for the entire time from January through July because 
most fishermen do not see any pregnant females in the area after mid-
July.
    Response: Data from the commercial shark observer program indicates 
that there are substantial numbers of juvenile and neonate sharks being 
caught in all months from January through July, not just from April 
through July. This is because in addition to being a primary pupping 
area from May to August, the area is also a secondary nursery and 
overwintering ground for young-of-the-year and juvenile sharks.
    Comment 17: The five vessels with a history of landing most of the 
juvenile sandbar sharks should be given some options on how to catch 
bigger sharks.
    Response: NMFS has not analyzed specific information regarding 
which vessels are catching small or large sharks, but has relied 
instead upon analysis of all data gathered in the time/area closure 
over various time periods to form the basis for the closure. Even if 
information were available to indicate that certain vessels were 
responsible for the majority of juvenile landings, options to remedy 
the problem would have to be made available to the entire fleet, not 
just selected vessels. Commercial shark fishery participants who fish 
in the area are encouraged to share information on fishing gears, 
methods, and locations that might reduce the catch of juvenile sharks. 
The intent of the closure is to reduce all interactions between 
commercial fishing operations and pupping and nursery grounds and hence 
reduce both the catch and mortality of dusky and juvenile sandbar 
sharks.
    Comment 18: Shrimp nets catch more small sharks than the directed 
shark fishery in North Carolina.
    Response: NMFS agrees that the shrimp fishery is responsible for 
large catches of SCS. The bycatch of SCS in the shrimp trawl fishery in 
the Gulf of Mexico has been documented and was taken into account 
during the latest 2002 SCS stock assessment which indicates that SCS 
are not overfished and overfishing is not occurring. While there may be 
benefits to the SCS stock as a result of the closure, the intent of the 
closure was to reduce the catch of juvenile sandbar sharks and 
prohibited dusky sharks.
    Comment 19: If an area is closed, landings should not be allowed in 
states adjacent to the area no matter where the fish are harvested.
    Response: NMFS does not agree that adjacent states should be closed 
as well, or that landings should not be allowed in adjacent states. The 
time/area closure is based on specific information about catches off 
North Carolina in a known pupping and nursery area. Although there are 
pupping and nursery areas in state waters, most notably Chesapeake Bay, 
Maryland, and Delaware Bay, Delaware, fishing effort there has 
historically been low. Additionally, most other areas adjacent to the 
closure off North Carolina are not known pupping and nursery areas and 
have a much higher proportion of adult sandbar sharks, and far fewer 
dusky sharks. NMFS is implementing VMS to aid in enforcement of the 
time/area closure. VMS will benefit fishermen by allowing them to 
traverse the closed area to offload.
    Comment 20: The time/area closure will push more vessels into other 
areas such as the Florida East Coast. This combined with the regional 
quotas and trimester seasons will mean that all the vessels will be 
working for one sixth of the normal January opening quota. There is 
only a small area off of Florida where you can shark fish. If more 
vessels go to that area, there will not be enough room to set gear.
    Response: The original time/area closure proposed in the draft 
Amendment would have closed all waters off North Carolina, and portions 
of Virginia and South Carolina to

[[Page 74763]]

commercial bottom longline fishing. Based on public comments that the 
catch of dusky sharks has declined in recent years, and that the time/
area closure would have severe economic impacts on commercial fishing 
entities in those states, NMFS re-examined the data for the time/area 
closure, specifically by looking at a shorter time period of catches 
from 2001-2002. Based on an analysis of the data, NMFS revised the 
time/area closure to close the portion of the original time/area 
closure which had the highest catch rate of dusky and juvenile sandbar 
sharks. NMFS believes that the revised time/area closure will reduce 
the catch of dusky and juvenile sandbar sharks, while also mitigating 
the economic impact of the closure by allowing vessels to continue 
fishing in waters north and south of the time/area closure off North 
Carolina from January through July. This should prevent vessels from 
having to fish in Florida, and will allow the quota to be harvested 
over a larger area.
    Comment 21: NMFS received several comments regarding how the 
proposed boundaries were established. Comments included: NMFS needs to 
improve the transparency in how the time/area boundaries were 
established and include maps of all observed trips and research 
cruises, not just observed takes of sandbar and dusky sharks.
    Response: The final Amendment provides a more thorough explanation 
and justification for the boundaries established for the revised time/
area closure. The seaward boundary of the revised area follows the 60 
to 80 fathom contour, and was selected to include all observed catches 
of dusky sharks and sandbar sharks. No dusky or sandbar sharks were 
observed caught east of approximately 50 fathoms. Since large numbers 
of sharks appear to be caught in a line along the 50 fathom contour, a 
buffer of approximately two miles was included thus extending the 
boundary to 60 to 80 fathoms. The northern boundary was selected to 
include the HAPC for sandbar sharks off Cape Hatteras, and because 
areas north of Cape Hatteras have historically had low catches of both 
dusky and sandbar sharks. The southern boundary was selected based on 
low numbers of dusky sharks that have been observed caught there in 
recent years, and because the proportion of juvenile and neonate 
sandbar sharks is much lower there than in the time/area closure. In 
summary, the revised time/area closure will reduce the catch of dusky 
sharks by 79 percent versus 85 percent under the original proposal, and 
will reduce the catch of sandbar sharks by 51 percent versus 66 percent 
under the original proposal. Detailed maps of the revised time/area 
closure, all observed trips, and research cruises are provided in the 
final Amendment.
    Comment 22: Why is Virginia closed? The marginal benefit of 
extending the closed area into Virginia does not appear as great as it 
would be off of Cape Canaveral, Florida. There appears to be another 
area of high sandbar and dusky abundance off central Atlantic Florida; 
NMFS should have proposed a similar closed area in that region.
    Response: Based on public comments received, NMFS re-examined the 
data and concluded that the waters off Virginia did not warrant being 
closed at this time. The time/area closure boundary has been revised to 
include only waters south of the HAPC off Cape Hatteras. For the area 
near Cape Canaveral, Florida, NMFS found that the area accounted for 
only 8 percent of the observed dusky shark catch from 1994-2002, and 
less than 14 percent of sandbar sharks, of which a very high proportion 
were adults. Given the low percentage of catch of prohibited dusky 
sharks from this area, and the high proportion of adult sandbar sharks, 
NMFS did not feel it was appropriate to close the area at this time.
    Comment 23: NMFS must adopt the alternative that would establish a 
time/area closure for smalltooth sawfish critical habitat. The 
smalltooth sawfish is the first marine fish to be listed under ESA, and 
although critical habitat has not yet been designated, NMFS should act 
immediately.
    Response: NMFS does not have the basis for implementing a time/area 
closure for smalltooth sawfish at this time. Without information about 
smalltooth sawfish critical habitat, NMFS does not have sufficient 
information to identify an appropriate time/area closure. Once a 
recovery plan is developed and critical habitat identified, NMFS will 
reconsider a closure to protect smalltooth sawfish.
    Comment 24: The depths on the maps depicting the time/area closure 
are incorrect.
    Response: NMFS has provided updated maps showing the correct 
bathymetry in the final Amendment.
    Comment 25: NMFS needs to compare the number of dusky shark takes 
in the commercial and recreational fisheries. MRFSS data are not 
credible.
    Response: NMFS has provided estimates of the number of dusky sharks 
caught in the commercial and recreational fisheries in the final 
Amendment. The estimates show that the number of dusky sharks caught in 
the commercial fishery was considerably higher (18,867) than in the 
recreational fishery (5,570) in 1999, but that the recreational fishery 
may have caught more dusky sharks in 2000-2001 (8,100 vs. 6,063). MRFSS 
data are not the only data used in calculating recreational catch 
estimates. Other data are obtained from the NMFS Headboat Survey 
(HBOAT) and the Texas Parks and Wildlife Recreational Fishing Survey 
(TXPWD).
    Comment 26: The proposed time/area closure splits South Carolina. 
How will enforcement enforce the regulation?
    Response: The revised time area closure is located entirely off the 
coast of North Carolina and enforcement should no longer be an issue 
off South Carolina. Other time/area closures have been implemented that 
did not fully encompass a state's waters, and NMFS utilized VMS to 
ensure the effectiveness and enforcement of the closures. NMFS intends 
to implement VMS for the current time/area closure as well. VMS will 
have the added benefit of allowing vessels to transit the closed area.

5. Other Management Measures

A. Deepwater and Other Sharks
    Comment 1: NMFS received a range of comments regarding the 
alternatives for the deepwater and other species group. The comments 
include: Deepwater sharks should be protected. Because there is little 
practical effect of leaving or removing them from the management unit, 
deepwater and other sharks should be left in the management unit. 
Leaving the deepwater and other sharks in the management unit could 
decrease the time needed to act, if necessary. Deepwater and other 
sharks should remain in the management unit because if any fishery 
should develop, it could take years to create an FMP following section 
305(a) of the Magnuson-Stevens Act in terms of gear evaluation and 
notification of entry. We support the preferred alternative. NMFS 
should continue to collect data on these species until such a time that 
they can be assessed or until a potential fishery develops. If needed, 
NMFS should move to put them back in the management unit to protect 
them.
    Response: Maintaining data collection only on the deepwater and 
other sharks is sufficient because there are not significant landings 
of the species in this group and no known fishermen target these 
species. If directed fisheries were to start, NMFS would evaluate data 
available at that time to see if an FMP amendment or other regulatory 
measures would be warranted.
    Comment 2: Fishing for deepwater and other sharks should be 
prohibited

[[Page 74764]]

because they are more likely to be overfished than coastal sharks.
    Response: At this time, there are no known fishermen targeting 
deepwater and other sharks. Prohibiting these species would be 
precautionary, but it may not significantly reduce mortality because 
these species are only caught rarely in non-HMS fisheries. Further, 
prohibiting landings of these species in HMS fisheries could reduce the 
availability of important data on them.
    Comment 3: To the extent that deepwater sharks are a target of 
fisheries in the Caribbean, the complex should be assessed and managed.
    Response: NMFS will assess this species group when more biological 
and fishery information becomes available.
    Comment 4: Deepwater and other sharks were added to the management 
unit not only to ban their finning, but also to preclude possession of 
species that may be vulnerable to overfishing and to help prevent 
development of directed fisheries or markets for uncommon or seriously 
depleted species.
    Response: The species added to the prohibited species group in the 
HMS FMP were added because they were known to be vulnerable to 
overfishing, uncommon, or seriously depleted. The deepwater and other 
group was included in the management unit only to prohibit finning of 
these species. No other regulations were placed on this group (e.g., no 
permitting or reporting requirements). Presently, the only protection 
afforded under the HMS FMP, a ban on finning, is now afforded 
nationally under the Shark Finning Prohibition Act (February 11, 2002, 
67 FR 6194). Given the national protection, maintaining data collection 
only on these species is sufficient at this time.
B. Prohibited Species
    Comment 1: Fishermen should be fined $10,000 for every prohibited 
species they capture.
    Response: Currently, the possession and landing of prohibited 
species is illegal. Penalties and fines vary with the severity of the 
infraction. At this time, NMFS does not believe a $10,000 fine for 
capturing a prohibited species would be appropriate under all 
circumstances.
    Comment 2: NMFS received a range of comments stating that dusky 
sharks should be removed from the prohibited species list in order to 
determine where and how many are caught. Alternatively, some commenters 
stated that NMFS should not remove dusky sharks because they have 
suffered a severe population decline and all measures to reduce 
mortality should be imposed.
    Response: Dusky shark catch rate data indicate large population 
declines since the early 1970s. Dusky sharks have a high bycatch 
mortality, approximately 80 percent, and are usually dead when gear is 
retrieved. Although commercial shark fishery observer data shows that 
dusky sharks comprise approximately one percent of total catch in 
recent years, removing dusky sharks from the prohibited species list 
could result in increased mortality of this overfished species by 
allowing the retention of individuals that may otherwise be released 
alive. NMFS determined that removing dusky sharks from the current 
prohibited species group would likely have significant ecological 
impacts.
    Comment 3: NMFS received several comments regarding the addition of 
the deepwater and other species to the prohibited species group. The 
comments include: Because they are slow growing and because new 
fisheries can spring up and deplete populations before action can be 
taken, deepwater and other sharks should be added to the prohibited 
species list. Removing deepwater and other sharks reduces the chances 
for conserving slow growing deepwater sharks. NMFS continues to assert 
the lack of a fishery for deepwater sharks and yet has failed to 
reconcile their previous finding in the National Plan of Action for 
Reducing Fishing Capacity that deepwater sharks are overcapitalized.
    Response: NMFS determined that adding the deepwater and other 
species to the prohibited species group would likely have only minor 
positive ecological impacts. Prohibiting these species takes a 
precautionary approach, but may not significantly reduce mortality 
because these species are only caught rarely in non-HMS fisheries. 
Further, prohibiting the landing of these species in HMS fisheries may 
limit the availability of data pertaining to them. If directed 
fisheries started, NMFS would evaluate data available at that time to 
see if an FMP amendment or other regulatory measures would be 
warranted. The draft National Plan of Action for Reducing Fishing 
Capacity stated that deepwater sharks are overcapitalized. NMFS 
believes the deepwater and other species were given this designation 
because the management group was included along with other shark 
management groups which are overcapitalized. The Highly Migratory 
Species Management Division has recommended that this finding for the 
deepwater and other species be amended because there are no known 
fishermen who target these species.
    Comment 4: We support adding finetooth sharks to the prohibited 
species list. Possession should be prohibited until effective 
management measures to stop overfishing are implemented.
    Response: NMFS analyzed an alternative that would add the finetooth 
sharks to the prohibited species group, but determined that this 
alternative would likely have limited positive ecological impacts as 
finetooth sharks are common bycatch in non-HMS fisheries and 
prohibiting them in HMS fisheries will not prevent their capture. 
Additionally, finetooth sharks are not overfished and are commonly 
caught in HMS fisheries. As such, finetooth sharks do not appear to 
meet the criteria established in the selected alternative. As described 
in Amendment 1, NMFS will take a long-term approach of identifying 
where finetooth sharks are caught and work with the appropriate Fishery 
Management Council to reduce fishing effort, as appropriate.
    Comment 5: NMFS received several comments regarding the preferred 
alternative for prohibited species. The comments include: We support 
the proposed alternative for prohibited species. We support the 
proposed alternative but recommend removing the criterion of rarity in 
LCS catch. If a species is commonly caught in the LCS fishery, but is 
depleted and warrants protection according to the biological criteria, 
then the species should be prohibited. We support the proposed 
mechanism but note that the criteria and procedures in the draft 
Amendment 1 require further investigation and clarification regarding 
appropriateness before finalization. We support the proposed mechanism 
but suggest that the criterion for adding and removing species be 
separated because the action may be contrary.
    Response: NMFS believes the mechanism for adding and removing 
species to and from the prohibited species list and the associated 
criteria are appropriate for addressing the biological needs of 
individual shark species. In regard to concern over the second 
criterion, a species may be rarely caught in HMS fisheries but stock 
assessments show few signs of depletion (e.g, HMS gear types are not 
efficient at catching the shark species or the species is caught in 
areas not fished by HMS fishermen). Before any species is added or 
removed from the list, NMFS would issue a proposed and final rule that 
fully describes how and if the species meets the criteria. If 
adjustments to the criteria are found to be needed in the future, NMFS 
can modify the criteria in a future rulemaking.
    Comment 6: NMFS should return to the original five prohibited 
species. All

[[Page 74765]]

LCS should be assessed. If they remain on the prohibited species list, 
NMFS will not have the data they need to assess them. Similarly, we 
support the proposed mechanism but NMFS should also remove any species 
that are logically not likely to be overfished (e.g., rarely caught 
species).
    Response: The 1997 prohibition on the possession of whale, basking, 
sand tiger, bigeye sand tiger, and white sharks within Federal waters 
was a precautionary measure developed to ensure that directed fisheries 
did not develop for these species. These five species were identified 
as highly susceptible to over exploitation. In 1999, the HMS FMP 
prohibited the retention of the remainder of the prohibited species 
because they were known to be vulnerable to overfishing, uncommon, or 
seriously depleted. Although the preferred alternative includes a 
mechanism and lays out criteria for the inclusion and removal of 
species from the prohibited species group, NMFS does not believe any 
changes to this group are warranted at this time. Each species will be 
considered on a case by case basis in future rulemakings. In the 2002 
LCS stock assessment, there was sufficient information to assess the 
LCS complex as a whole, and sandbar and blacktip sharks individually. 
NMFS will assess individual species as more biological and fishery 
information become available.
    Comment 7: If the proposed mechanism is finalized, what type of 
request would we be required for NMFS to start rulemaking to remove 
species?
    Response: NMFS would require a petition for rulemaking to alter the 
prohibited species list. A petition for rulemaking should contain 
sufficient information for NMFS to consider the substance of the 
petition. For a petition regarding changes to the prohibited species 
list, the petition should, at a minimum: (1) Indicate what species are 
requested to be added to or removed from the list; (2) identify how the 
criteria warrant the addition or removal of the species; (3) provide 
data and other information relevant to those identified criteria; (4) 
state if additional research may be necessary to develop the requested 
change; (5) explain the interest of the petitioner or other 
stakeholders regarding the requested change; and (6) explain the 
importance of the action requested to promoting established NMFS' 
priorities and policies.
    Comment 8: If the proposed mechanism is finalized, will NMFS 
conduct an annual assessment regarding which species will be placed on 
the prohibited species list?
    Response: NMFS will assess individual species as additional data 
becomes available and not necessarily on an annual basis.
C. EFPs
    Comment 1: We support the preferred alternative as long as NMFS 
maintains some accountability on how the sharks are used, particularly 
the prohibited species. Any demographic information for age, growth, 
and offspring that evolves from aquarium use should be provided to NMFS 
annually for use as a comparative database for life history analyses 
versus wild stocks.
    Response: NMFS maintains an EFP database which accounts for each 
highly migratory species requested, authorized, taken/collected, and/or 
tagged under an approved EFP. As for data reporting, each permitted 
individual is required to submit interim reports throughout the 
calendar as well as submit an annual report documenting the amount, 
composition, and disposition of the catch as well as information 
pertaining to fishing activities. Additionally, NMFS has finalized a 
rule that amends HMS reporting requirements under EFPs (68 FR 63738, 
November 10, 2003). Additional issues regarding EFPs and Display 
permits may be addressed in a future rulemaking.
    Comment 2: We support a separate display permitting system, apart 
from research or EFPs. NMFS should overhaul the EFP system and 
establish separate classifications of permits for each specific use 
(e.g., public display, research, and other exempted activities).
    Response: NMFS agrees and is establishing display permits in this 
rule. Other purpose classifications of exempted fishing permits may be 
addressed in future rulemakings.
    Comment 3: NMFS received several comments regarding the issuance of 
permits. Comments included: NMFS should not issue any more permits for 
scientific research. Background checks should be made of all permit 
holders; anyone with previous violations of any kind should be denied a 
permit. Requests for EFPs and SRPs need to be fully evaluated, taking 
into consideration past performance and other background, particularly 
for species that are already critically overfished.
    Response: Valuable information is gathered from activities under 
scientific research permits (SRPs) that would otherwise be prohibited. 
For example, SRPs have facilitated the collection of life history, 
migration, and age and growth information from prohibited shark 
species. As noted above, NMFS recently amended the reporting 
regulations for EFPs and SRPs and will be investigating additional 
improvements in the permitting processes.
    Comment 4: Fishermen catching sharks for display purposes should be 
required to have a purchase order from an aquarium in hand before going 
out. Annual follow-up investigations to the aquarium should be made to 
ensure that the shark is cared for properly. If someone is caught 
without a purchase order, the fine should be $10,000 per shark.
    Response: NMFS will be investigating these issues further in a 
future rulemaking.
    Comment 5: Several changes are needed to the EFP process including 
incorporating more public comment into the EFP allocation process and 
letting the public know what the final decision is and what the 
environmental impacts are of its decision.
    Response: NMFS will be investigating alternatives to improve the 
process in a future rulemaking and notes that information on the types 
of and number of permits issued are presented in the annual Stock 
Assessment and Fishery Evaluation (SAFE) reports.
    Comment 6: Efforts should continue with the Atlantic States Marine 
Fisheries Commission (ASMFC) regarding coordination between state and 
federal permits. There often appears to be too many permits and too 
little oversight.
    Response: NMFS supports continuing dialogues with the ASMFC 
regarding coordination between state and federal permits and has been 
working on improving its own database and collection methods, in part, 
to improve communication between NMFS and state agencies.
    Comment 7: While criteria for each EFP may vary, there should be 
uniform standards of performance, reporting, and accountability that 
are equally applicable to fishermen, aquariums, researchers, and 
educational institutions. Implementation of measures to ascertain the 
educational need justifying the harvest of these animals and improving 
reporting should be investigated.
    Response: NMFS will be investigating these issues further in a 
future rulemaking.

6. Essential Fish Habitat Update

    Comment 1: EPA recommends including a discussion on whether shark 
EFH is being affected by other fishery practices. For example, if shark 
EFH is protected by limiting clamming or

[[Page 74766]]

trawling in coastal bays, then the fishery may support higher quotas.
    Response: Because sharks use both estuarine and coastal inshore 
habitats, their EFH may be negatively impacted by fisheries that target 
species other than sharks. These fisheries may be either state or 
Federally managed. In particular, shark pupping and nursery habitats 
may be subjected to fishing impacts from gears of other fisheries, 
e.g., shrimp trawling, but the degree of overlap between the various 
trawl fisheries and shark EFH, the extent to which habitat is altered 
by these gears, and the resulting impact on EFH are currently not 
known. Further research would be required to determine habitat-related 
production rates for sharks (the highest, most refined level of 
information available with which to identify EFH, and which is 
currently not available for sharks) and the potential impact of other 
fisheries on these production rates. Even if clamming or trawling were 
limited in some way to reduce impacts on shark EFH, the decision to 
raise quotas would only be made after appropriate stock assessments 
were conducted to determine whether the status of the stock had 
improved as a result of the conservation and enhancement actions.
    Comment 2: NMFS should identify EFH based on the entire geographic 
range of the species.
    Response: The EFH final rule recommends distinguishing EFH from all 
habitats potentially used by a species (50 CFR 600.815(a)(1)(iv)(A)). 
NMFS considered identifying EFH based on the entire geographic range of 
the species, but because specific information from scientists, 
observers, and tagging programs was available, decided to identify EFH 
more precisely based on observed distributions and knowledge about 
habitat requirements of individual species. The final action identifies 
EFH based on an initial analysis of 100 percent of the observed 
distribution, which may then either be expanded or reduced based on the 
status of the stock. If new information is not available, the existing 
EFH identifications would be maintained. The basis for this alternative 
is to provide flexibility to increase or decrease the extent of EFH 
based on the status of the stock. Since overfished resources are 
considered to be at greater risk, the percentage of habitat identified 
as EFH for overfished species would be greater than that of fully 
fished or not overfished species. Identifying the entire range could 
potentially have resulted in inclusion of the entire EEZ for certain 
species, which would include more than the range of areas necessary for 
spawning, feeding, breeding and growth to maturity as defined in the 
EFH regulations. Areas currently identified as EFH in Amendment 1 are 
based upon the best available science and represent the most accurate 
identification of EFH.
    Comment 3: We support the use of the preferred alternatives to 
identify EFH as specifically as possible and the use of data to 
increase or decrease the identifications for each species.
    Response: The final action provides an objective way of identifying 
EFH, and allows for the expansion or contraction of EFH based on the 
status of a particular species or life stage. For example, for 
overfished species, 90 percent of the range of distribution could 
hypothetically be identified as EFH, and for a species that is not 
overfished, 75 percent of the range of distribution might be identified 
as EFH.
    Comment 4: Sandbar shark EFH should include areas in the northern 
Gulf of Mexico.
    Response: Current sandbar shark EFH for all life stages includes 
areas in the northeastern Gulf of Mexico from Key West, Florida, as far 
west as Cape San Blas, Florida, on the Florida Gulf coast at 80[deg] 
15' North, including Apalachicola Bay, Florida. NMFS did not have 
sufficient information to include areas farther west at this time.
    Comment 5: NMFS should work with Mexico and Cuba to include their 
waters as EFH. Twenty percent of all dusky shark tags are returned from 
Mexico after having been tagged in the mid-Atlantic region. Expanding 
EFH would help present all information possible about EFH throughout 
the immediate range.
    Response: Habitats that satisfy the criteria in the Magnuson-
Stevens Act and the EFH regulations have been identified and described 
as EFH; some additional habitats may lie outside the U.S. EEZ, and 
therefore cannot be identified as EFH under the Magnuson-Stevens Act. 
Instead, these areas may be highlighted as particularly important 
habitats and actions that may adversely affect the habitat may be 
addressed through international agreements as recommended in the EFH 
regulations (50 CFR 600.805(b)(2)). The U.S. has engaged in discussions 
with Mexico regarding fisheries issues in the past, and met again 
October 22-24, 2003, for U.S. Mexico Bilateral Consultations in 
Mazatlan, Mexico. Currently the U.S. does not have diplomatic relations 
with Cuba, and working cooperatively to determine shark habitat in 
Cuban waters would be difficult.
    Comment 6: The Amendment discusses changes to EFH based on human 
impacts but does not discuss natural impacts such as red tide or rising 
temperatures.
    Response: Both red tide and rising temperatures may influence EFH. 
Red tides may have a short term impact by altering distribution of 
organisms, and temperature rise may have a long term influence by 
changing the distribution and abundance of predators and prey, benthic 
and water column habitat characteristics, and a host of other related 
issues. Red tides and rising temperatures have been linked to human 
activities, and as such, the final Amendment includes conservation 
measures that could reduce the runoff of coastal pollution which may 
influence or exacerbate red tides, and discusses many other influencing 
factors that are land-based and may have an impact on coastal waters 
and EFH.

7. The Stock Assessments and the Status of the Sharks

    Comment 1: NMFS received a range of comments regarding the current 
abundance of sharks. One commenter noted that a research scientist told 
him that there are plenty of sharks and that the scientist has seen 
more in his research this year than in other years. Another commenter 
noted that he no longer sees as many large coastal sharks as he used to 
and that shark harvesting should be stopped.
    Response: Because of a number of factors including, but not limited 
to, environmental changes, the gear used, the random sampling scheme 
used, and past experience of the fisherman, the number of sharks seen 
by one person or in one year of a time series compared to other years 
or other people can vary. The models used in the 2002 large and small 
coastal shark stock assessments take this variation into account when 
examining the data provided by fishermen and scientists and are 
considered to be the best available science and an appropriate basis 
for management action.
    Comment 2: How could blacktip sharks be overfished in 1998 and now 
be rebuilt?
    Response: As a result of a settlement agreement with commercial 
fishermen, NMFS had the 1998 LCS stock assessment peer reviewed. Those 
reviews found that the scientific conclusions and recommendations in 
the 1998 stock assessment were not based on scientifically reasonable 
uses of appropriate stock assessment techniques. As a result of these 
peer reviews, NMFS went back to the 1998 stock assessment and conducted 
a number of sensitivity analyses on the data and the models used at 
that time.

[[Page 74767]]

These analyses found that the data and models used for blacktip sharks 
were particularly sensitive to a number of factors and that changing 
some of the factors could lead to results that indicated the stock was 
either rebuilt or was well below sustainable levels. The sensitivity of 
the results (to computational issues) was largely attributed to the 
CPUE series within the analyses, which showed contradictory trends. As 
a result of these sensitivity analyses, before the actual 2002 stock 
assessment was conducted, scientists and other stakeholders examined 
each time series and model available and determined which ones were the 
most appropriate for use. Given these decisions on data inputs and 
modeling approaches, the condition of blacktip sharks was determined to 
be rebuilt. The peer review of the 2002 LCS stock assessment found that 
the models and data used were appropriate.
    Comment 3: Given the short period of shark management and the long 
time required for sandbars to attain maturity, the assertion that 
sandbar sharks are restored is something of a scientific miracle. 
Sandbar sharks used to be so common in the mid-Atlantic that they could 
be counted upon to save almost every summer shark trip. After a few 
years of intense commercial shark fishing, that species was practically 
wiped out. We still do not see them.
    Response: The latest LCS stock assessment constitutes the best 
scientific information available. It was conducted by some of the most 
respected shark and stock assessment scientists in the United States 
and, as is attested by the results of the peer review, used state-of-
the-art models. Additionally, the data and models used in the stock 
assessment were examined and debated by scientists, environmentalists, 
and fishermen in a stock evaluation workshop before the stock 
assessment itself. The assessment found that sandbar sharks are no 
longer overfished but are experiencing overfishing. It is important to 
note that a change in status from overfished to rebuilt does not mean 
that the population is restored to levels of an unexploited or lightly 
exploited population. In general, a fish population that is capable of 
producing MSY on a continuous level (i.e., a population that is not 
overfished) is roughly half that of an unexploited population. Thus, 
NMFS would not expect sandbar shark catch rates to return to the catch 
rates that occurred at the start-up phases of either the recreational 
or commercial fisheries.
    Comment 4: How can a species have overfishing occurring but not be 
overfished?
    Response: Overfishing relates to the rate of fishing mortality and 
indicates that the standing stock is being reduced because removals 
exceed the capacity of the stock to replace itself. Fishing pressure or 
fishing mortality needs to be reduced on a species that is experiencing 
overfishing or the species will become overfished. A species is 
overfished if the biomass or the number of fish in the population is 
too low to produce the desired level of harvest on a continuing basis. 
In the case of an overfished species, fishing mortality must be reduced 
in order to keep more individuals in the population and contributing to 
reproduction. An overfished population cannot rebuild unless 
overfishing is stopped.
    Comment 5: NMFS received several comments regarding the accuracy of 
species identification and its impact on data quality and the accuracy 
of stock assessments. Comments included: NMFS needs to improve species 
identification and reporting by shark dealers. The data you are using 
is wrong because fishermen have normally listed everything as a 
``sandbar shark.'' NMFS should work within the Atlantic Coastal 
Cooperative Statistics Program (ACCSP) to better standardize fishery-
dependent survey data collection and address the tendency of dealers to 
simply categorize shark landings as ``sharks.''
    Response: Since 1993, species-specific reporting has been required. 
However, some fishermen and dealers still report sharks as ``shark'' or 
as ``large coastal.'' Both the small and large coastal shark stock 
assessments use a variety of data including fishery-dependent (e.g., 
self-reported data such as logbooks) and fishery-independent data 
(e.g., research cruises with a set sampling scheme). While some 
fishermen or dealers may report the incorrect species on logbooks, 
other fishermen and dealers do report the correct species, as is 
required by the regulations, and observers or scientists trained in 
species-identification report the correct species level data. Both 
stock assessments conducted numerous sensitivity analyses to examine 
what happens to the results of the models if only relative abundance 
data reported by fishermen or only data reported by scientists are 
used. The overall results of the stock assessments consider these 
sensitivity analyses and constitute the best scientific information 
available at this time. Recognizing that the accuracy of stock 
assessments and management can be improved with correct species-
identification, NMFS will be releasing a species-identification guide 
shortly and will be examining, in a future rulemaking, methods of 
requiring mandatory workshops for both commercial and recreational 
fishermen in order to improve, among other things, species-
identification. NMFS continues to work within the ACCSP and other 
relevant forums to improve the reporting process of shark data.
    Comment 6: How independent were the peer reviews?
    Response: For the 1998 and 2002 LCS stock assessments, Natural 
Resources Consultants, Inc. (NRC) hired several non-NMFS scientists to 
conduct the peer review. These non-NMFS scientists provided information 
to show they had no conflict of interest. NMFS provided NRC with all 
the supporting documentation the scientists required such as copies of 
the stock assessment and the related documents. However, pursuant to a 
court-approved settlement agreement, NRC did not disclose the 
identities of the peer reviewers to fisheries management staff at NMFS 
until after the reviews were complete.
    Comment 7: All shark fishing should be stopped. The PEW Report and 
other reports by independent, unbiased scientists indicate that 
overfishing is occurring. NMFS is not accurate when it says ``sandbar 
sharks are no longer overfished.''
    Response: As explained above, the current LCS stock assessment 
underwent an independent peer review and is the best available science 
on the status of the stocks.
    Comment 8: NMFS received a range of comments regarding the menhaden 
fishery and shark bycatch. These comments included: The menhaden 
fishery catches a lot of sharks. Does NMFS incorporate bycatch 
information from the menhaden fishery in the stock assessment? NMFS 
should monitor and control the bycatch in the menhaden fishery.
    Response: The Gulf of Mexico menhaden purse seine fishery does have 
some bycatch of sharks. It is estimated that approximately 75 percent 
of the sharks encountered in the fishery die, and 97 percent of the 
sharks encountered are LCS while 3 percent are SCS. The 2002 LCS stock 
assessment included these discard estimates for LCS, blacktip, and 
sandbar in the Gulf of Mexico menhaden purse seine fishery from 1981 to 
2001. Additionally, different sensitivity analyses were conducted to 
determine how much the results would change if data extended back to 
1964. Results from those sensitivity analyses indicated that extending 
the series of menhaden discard estimates back in time had almost no 
effect. NMFS will continue to work with the Gulf States Marine 
Fisheries Commission and the Gulf of

[[Page 74768]]

Mexico Fishery Management Council to monitor the situation and, as 
needed, examine methods of reducing bycatch of sharks in this fishery.
    Comment 9: The two species that have been assessed outside the LCS 
complex have been shown to be not overfished; NMFS needs to assess the 
other 20 LCS species to find out what their status is. All LCS, except 
sandbar and blacktip sharks, are considered overfished. Some of these 
species are rare event animals in the ecosystem; they have never, nor 
will ever be, overfished because they cannot be targeted in U.S. 
waters. These species should not be considered overfished. Despite 10 
years of management, NMFS has failed to conduct species-specific 
assessments for all LCS. Similarly, some of the prohibited LCS, such as 
bigeye sand tiger and narrowtooth sharks, are listed as overfished but 
should not be. These animals are rarely caught or found in U.S. waters.
    Response: NMFS continues to collect species-specific data in 
support of species-specific stock assessments. To date, NMFS has 
conducted individual stock assessments for sandbar, blacktip, Atlantic 
sharpnose, finetooth, blacknose, and bonnethead sharks. As additional 
biological and fishery-related data become available, NMFS will conduct 
other species-specific stock assessments. As noted in the 2002 LCS 
stock assessment, NMFS plans to conduct a dusky shark stock assessment 
in the near future. Until that time, NMFS must use the best available 
data to conduct stock assessments. For many species of sharks, this 
means conducting group stock assessments of the entire complex. These 
results indicate that some species in the LCS complex are in apparent 
decline while other species are not. Until stock assessments can be 
conducted on individual shark species, NMFS is implementing a mechanism 
that uses a number of criteria to determine if the species should be on 
the prohibited species list. If a species, such as narrowtooth sharks, 
is rarely caught but does not meet the other criteria, such as 
sufficient biological data to indicate a decline, then the species can 
be removed. However, if the species is rarely caught because its stock 
is depleted, the species would be added to, or maintained on, the 
prohibited species list.
    Comment 10: NMFS' dusky data is incorrect and is not a true 
indicator of what is being caught. Juvenile dusky sharks are not caught 
off the east coast of Florida. Only giant dusky sharks were reported in 
logbooks in the past.
    Response: The data collected on dusky sharks is from a variety of 
sources including fishermen, dealers, observers, and scientists. While 
there may be some problems with species identification on the part of 
those individuals not trained, observers and scientists who have been 
trained to identify sharks do provide species level data. These data 
indicate that juvenile dusky sharks (dusky sharks do not mature until 
they are approximately 10 ft (3 m) FL) are caught off the east coast of 
Florida.
    Comment 11: NMFS received several comments regarding the assessment 
results for finetooth sharks. Comments include: The data on finetooth 
sharks is flawed; I only land a few and there is only a small area 
where they are caught. Assessments for finetooth sharks can be improved 
with better landings and bycatch information. NMFS states that 
overfishing is occurring for finetooth sharks because of excessive 
bycatch, yet according to the SCS stock assessment, no bycatch numbers 
were used in the model; NMFS should improve the data on finetooth 
sharks.
    Response: Results for finetooth sharks are uncertain, possibly due 
to limited catch and CPUE series, lack of bycatch estimates, and no 
catches reported in some years. NMFS is also examining which fisheries 
are actually landing the majority of the finetooth sharks. The majority 
of finetooth shark landings come from gillnets in the South Atlantic 
fishery; however, observer data indicate that the gillnet vessels that 
are known to be targeting small coastal sharks, including finetooth 
sharks, do not land as many finetooth sharks as are reported. Given the 
uncertainty of the results of the models and the need to collect 
information on these non-HMS fisheries that are landing finetooth 
sharks, NMFS intends to prevent overfishing of finetooth sharks by 
improving species-identification, particularly by recreational 
fishermen, and working with the Fishery Management Councils to identify 
and improve monitoring of fisheries that land finetooth sharks.
    Comment 12: NMFS received several comments regarding future 
assessments. Comments included: NMFS should use an assessment protocol 
similar to the South Atlantic Fishery Management Council's Southeast 
Data and Assessment Review (SEDAR) process for future stock 
assessments. Species level assessments for several of the primary LCS 
species need to be developed as soon as possible. NMFS needs to 
schedule LCS and SCS stock assessments for 2004 to prepare plans for 
future shark issues of importance. An assessment for the pelagic shark 
group needs to be completed as soon as possible.
    Response: The process for conducting shark stock assessments 
continues to evolve and improve over time. As new data and techniques 
become available, NMFS makes every effort to examine the possibility of 
using those data and techniques for assessing the status of sharks. 
Additionally, NMFS considers and will continue to consider the process 
of other fisheries stock assessments and the needs of the fishing 
communities to improve the overall stock assessment process. Under the 
HMS FMP, NMFS committed to hold stock assessments for each complex 
every two to three years. At this time, NMFS has not yet decided when 
the next SCS or LCS stock assessments will be conducted. However, NMFS 
will make every effort to ensure interested parties can attend the 
shark evaluation workshop. As for pelagic sharks, because of their 
migratory nature, NMFS is working with ICCAT to collect data and 
conduct an international stock assessment of several species of pelagic 
sharks. That stock assessment should occur in 2004.
    Comment 13: NMFS should make efforts to document fully landings in 
Mexican waters and to work with that country in coordinating shark 
management.
    Response: NMFS agrees and is working through international means 
and with Mexican scientists to improve communication and facilitate the 
exchange of data.

8. Economic Impacts

    Comment 1: NMFS received several comments regarding the range of 
economic impacts that should be analyzed. Comments included: NMFS 
should focus on the probability of extinction of sharks instead of the 
economic impacts on commercial fishermen. NMFS should not focus on the 
economic impacts on commercial fishermen but on U.S. citizens as a 
whole.
    Response: In this rulemaking, NMFS considered the status and 
biology of the stock, the ecological impacts of management measures, 
and social and economic impacts, as required under the National 
Environmental Policy Act, 1969 (42 U.S.C. 4321 et seq.), Regulatory 
Flexibility Act, 1980 (5 U.S.C. 601 et seq.), Small Business Regulatory 
Enforcement Fairness Act, 1996 (5 U.S.C. 801 et seq.), Regulatory 
Planning and Review, 1993 (Executive Order 12866), and Proper 
Consideration of Small Entities in Agency Rulemaking, 2002 (Executive 
Order 13272). NMFS conducted economic and ecological analyses in an 
EIS, Initial Regulatory Flexibility Analysis (IRFA), Final

[[Page 74769]]

Regulatory Flexibility Analysis (FRFA), and a Regulatory Impact Review 
(RIR), which document economic impacts on the affected fishery, small 
entities, and the nation as a whole.
    Comment 2: The revised quotas will put fishermen out of business. 
The current quotas are good and the overall fishery is improving.
    Response: According to the 2002 LCS stock assessment, the LCS 
complex is overfished and overfishing is occurring (Cortes, 2002). As 
such, the 2002 stock assessment recommends that adjustments to quotas 
be made in the form of percent reductions in catch. Economic analyses 
indicate that the LCS quota was worth $2,895,521 in 2001 under the 
baseline for comparison (i.e., 1,285 mt dw). Implementation of the 
preferred alternatives will result in a 21-percent reduction in total 
gross revenues for both the fishery as a whole as well as small 
entities. If NMFS did not act, the quotas from the 1999 HMS FMP, which 
are 20-percent lower than the LCS quotas finalized in this rule, would 
go automatically into place and result in a 24-percent reduction in 
total gross revenues for both the fishery as a whole and small 
entities.
    Comment 3: The combination of the classification for LCS and quota 
basis would stabilize some of the economic impacts that have unfolded 
upon the directed shark participants since 1997 due to regulations and 
inadequate science.
    Response: While the combination of the final actions would increase 
total gross revenues by 33 percent to both the fishery as a whole as 
well as small entities, this economic benefit may be short-lived if the 
fishery continues to decline as a result of substantial increases of 
regulatory discards that are anticipated with multiple closures in a 
mixed LCS fishery. Fishermen would likely need to increase effort in 
order to make up for lost catches during partial closures, which may 
result in increased protected resource interactions and mortality on 
non-targeted species. Moreover, longer sorting times per set are likely 
to increase opportunity costs to fishery participants. Additionally, 
lengthening of trips may occur in order for fishermen to compensate for 
lost catches during a partial closure. Increased time at sea reduces 
the profits fishermen gain due to increased costs for fuel, bait and 
ice, and could raise safety at sea concerns if fishermen fish longer or 
harder to counteract for lost revenues.
    Comment 4: The regional quotas and estimates of catches by region 
are flawed and will put North Atlantic fishermen out of business. This 
regional quota and a trimester approach will give the North Atlantic 
1.3 percent of the quota or 14.4 mt dw for each season. This is not 
sufficient to maintain a crew.
    Response: NMFS combined information from two separate databases 
containing regional landings information as reported by dealers and 
states to NMFS. The landings information represent the best available 
information pertaining to regional data. Given that regional quotas 
seek to maintain historical landings, as opposed to reducing landings, 
NMFS does not expect that regional quotas would change previous fishing 
practices or result in any significant economic impact. To the extent 
that the LCS quota itself is being reduced, fishermen in all regions 
will likely have reduced landings. However, NMFS believes that having 
more open seasons (i.e., three as opposed to two) and spreading the 
open seasons out more evenly, will result in greater economic stability 
for fishery participants, including crew members. Additionally, over 
time, regional quotas may allow NMFS the flexibility to manage quotas 
to each region's maximum economic advantage.
    Comment 5: NMFS received a range of comments regarding the economic 
impact of a trimester approach. Comments include: We cannot support the 
trimester season approach because it would hurt the market and because 
it could have economic costs for fishermen who would need to switch 
their gear types three times a year instead of two times. Grocers need 
at least a month to develop their advertising and know their potential 
supply and price; a trimester approach would not give enough time for 
grocers to advertise. I like the trimester approach because it would 
allow for more advertising and therefore a higher price. I do not need 
to switch my gear because I use the same gear for grouper, sharks, and 
tuna. NMFS, as part of the Department of Commerce, should be more 
sensitive to seafood markets and should know that changing the seasons 
from biannual to trimesters will cause extreme harm to the established 
market routine for sharks.
    Response: NMFS recognizes that trimesters may take time for 
fishermen and associated communities (e.g., dealers, processors, retail 
agents) to adapt to, given that new markets will need to be established 
at different times of the year. Fishery participants will need time 
(i.e., between two weeks and a month) to work with grocers to advertise 
shark products and under trimester seasons the time available for such 
advertisements may be further limited, as compared with the no action 
alternative. Additionally, since fishermen may be able to land sharks 
at the same time as other fish, there could be fluctuations in markets 
for other fisheries. Spreading open seasons out more evenly over the 
calendar year could, in the long-term, result in greater economic 
stability for fishermen and associated communities because the amount 
of time between open and closed seasons would be reduced and sharks 
would be available in the market more frequently throughout the year. 
In order to reduce the economic impacts associated with trimesters, 
NMFS will implement a delay in effectiveness to give fishery 
participants an opportunity to work with dealers and grocers to enhance 
markets and advertising solutions in advance of season openings. NMFS 
also recognizes that variation in open seasons could result in short-
term social and economic burdens, given that fishermen will need to 
adjust fishing practices, including but not limited to, re-rigging gear 
more often to fish for shark, as opposed to other species, during what 
would otherwise be a closed season. Social and economic costs 
associated with switching gear more often may be minimized, if shark 
fishery participants use the same gear in other fisheries (e.g. similar 
gear is used to fish for shark, grouper, and tuna). Trimester seasons 
are preferred to quarterly seasons because trimesters will minimize the 
costs of switching gear (i.e., only three times as opposed to four per 
year) and give a higher percentage of the quota to each open season 
than would occur under a quarterly season approach.
    Comment 6: I want a buyout if you are going to set the regional 
quotas and trimester seasons. My vessel is worth more than $200,000 to 
me.
    Response: NMFS has the authority to reduce capacity under the 
Magnuson-Stevens Act (Section 312(b)-(e)) and may investigate options 
to reduce capacity during a future rulemaking.
    Comment 7: If NMFS bans drift gillnet, all shark gillnet fishermen, 
including those already using strikenet gear, will go out of business 
because you can only use strikenet from January through April when the 
LCS are schooling and the season is open. You cannot use strikenet to 
target SCS which is what shark gillnet fishermen rely on when the LCS 
season is closed. You also cannot use strikenet gear in the summer 
because the sharks in this area are not schooling. Shark gillnet 
fishermen cannot fish for Mackerel due to the Florida net ban; 
therefore, most of their money comes from shark fishing. Strikenet 
fishing requires two large vessels to retrieve the gear, two small

[[Page 74770]]

vessels to deploy the gear, and an airplane. Buying new gear itself 
costs at least $70 K. That is a large amount of capital investment and 
because it captures a large amount of blacktip sharks at a time, the 
gear can only support two vessels.
    Response: As explained above, NMFS no longer prefers the 
alternative that would allow only strikenet method in the shark gillnet 
fishery. Based on public comment, NMFS re-examined available data. 
These data indicate that allowing the use of strikenets only would not 
accomplish the objective of allowing the gillnet fishery to continue 
while minimizing interactions with protected resources as well as 
reducing bycatch of non-target species because strikenet fishermen do 
not target SCS. Therefore, the final regulations will permit the use of 
drift gillnets with possible gear modifications or other measures 
designed to reduce interactions and mortality of bycatch being 
implemented through a future rulemaking, based upon further study.
    Comment 8: The complete prohibition of a gear in a fishery is not 
unusual in fisheries management, especially in regards to entanglement 
gear. Gillnets have been disallowed in other fisheries that are 
considerably larger and with more socioeconomic impact than the six to 
eight gillnet vessels in this fishery. Beside protected species, 
gillnets kill gamefish species such as tarpon and large red drum that 
support recreational and charter fisheries that contribute over $500 
million to Georgia's economy. The kill of these premier gamefish in 
this gear presents a clear threat to Georgia's growing recreational and 
charter fishing fleets, with distinct economic implications to the 
State.
    Response: While it may be true that prohibitions of gear types 
exist in other fisheries and that those actions may have resulted in 
economic impact to the concerned fishery as well as small entities, it 
is likely that the decision-making associated with why those 
prohibitions were originally considered and ultimately approved 
differs. In this instance, NMFS proposed the strikenet method only to 
minimize interactions with protected resources and reduce bycatch of 
non-target species to the extent practicable while allowing the 
commercial shark gillnet fishery to continue. Through public comment it 
has been brought to the attention of NMFS that allowing the use of 
strikenets only would not accomplish this objective. Therefore, the 
final regulations will permit the use of drift gillnets with possible 
gear modifications or other measures being implemented through a future 
rulemaking.
    Comment 9: I use small mesh monofilament stab nets to fish for 
whiting, bluefish, Spanish mackerel, and croakers. I normally land more 
than the incidental limit of sharks. If you allow only strikenets, I 
will go out of business.
    Response: NMFS originally proposed allowing the strikenet method 
only in the shark gillnet fishery in order to reduce bycatch of 
protected species. This alternative would have allowed incidental shark 
landings from vessels participating in other gillnet fisheries, such as 
those mentioned in the comment above. However, as explained above, NMFS 
is not implementing this alternative at this time.
    Comment 10: The time/area closure off of North Carolina will put 
many fishermen out of business.
    Response: NMFS acknowledges that some fishermen may go out of 
business as a result of the time/area closure. Original economic 
analyses in the draft Amendment indicated that the time/area closure 
offshore of South Carolina, North Carolina, and Virginia could have a 
direct economic impact on a total of 34 vessels (out of 251 total 
directed permits issued in 2002 [sim] 14 percent) with directed shark 
permits. In response to comments, NMFS revised the time/area closure. 
Economic analyses, based on revisions to the time/area closure, 
indicate that 23 vessels (out of 256 total directed permits issued in 
2003 [sim] 9 percent) with directed shark permits may experience direct 
economic impacts. Additionally, original analyses pointed toward a 
total of 13 vessels with home ports located in South Carolina, North 
Carolina, and Virginia as having reported shark landings during 2001. 
These vessels reported gross revenues totaling $351,600 during that 
year. Revised economic analyses indicate that only 8 vessels with home 
ports located in North Carolina reported shark landings during 2001. 
This revised analysis indicates that the time/area closure off of North 
Carolina will result in a 15-percent reduction in total gross revenues 
for the fishery as a whole and in a three-percent reduction of revenues 
for the small entities directly affected by the proposed closure. As 
such, the revised time/area closure mitigates the economic impacts by 
$17,956 in total gross revenues for the small entities directly 
affected by the closure as compared with the original preferred 
alternative as outlined in the draft Amendment.
    Comment 11: NMFS received several comments regarding VMS. Comments 
included statements that the proposed VMS is not as expensive as the 
program run out of the Northeast; therefore, we encourage your program. 
VMS is expensive and a violation of privacy. A VMS requirement would 
put bottom longline fishermen out of business.
    Response: Economic analyses of the impacts associated with the VMS 
requirements indicate that only five percent of the fleet would be 
affected and that this will result in a eight-percent reduction in 
total gross revenues for the fishery as a whole and a 26-percent 
reduction in total gross revenues for the 12 vessels directly affected 
by this proposed requirement during the first year of implementation. 
For every year thereafter, economic analyses indicate that annual costs 
will result in a seven-percent reduction in total gross revenues for 
the fishery as a whole and a seven-percent reduction in total gross 
revenues for the 12 vessels directly affected by this proposed 
requirement.
    Comment 12: Will the agency pay for VMS for this fishery?
    Response: Implementation of the VMS requirement in this final rule 
will result in five gillnet vessel owners and seven bottom long-line 
vessel owners having to pay for VMS units and all associated costs. 
Specifically, the costs associated with implementing a VMS program in 
the Atlantic shark gillnet fishery include an initial average cost per 
vessel of approximately $2,275 (not including postage costs for 
returning certification statement), an average annual maintenance cost 
of approximately $500/year, and approximately $197.28/year for 
communications during the right whale calving season. Costs associated 
with implementing a VMS program in the directed shark bottom longline 
fishery include an initial average cost per vessel of approximately 
$2,275 (not including postage costs for returning certification 
statement), an average annual maintenance cost of approximately $500/
year, and approximately $305.28/year for communications during the 212 
day shark bottom longline time/area closure.
    Comment 13: The fuel that it takes to move one nautical mile after 
an interaction with a protected species is not significant and should 
not have a large economic impact.
    Response: NMFS believes that most fishing vessels will move at 
least one nautical mile during the course of normal operations. As 
such, fuel costs associated with a requirement to move one nautical 
mile after an interaction with a protected species are insignificant 
and would have minimal, if any, economic impacts.
    Comment 14: The retrieval of fishing gear (i.e., hooks, leaders, 
and crimps) saves the fisherman money replacing

[[Page 74771]]

the lost gear and time and effort. Dehooking and disentanglement 
techniques would speed up, in most cases, their fishing operation and 
reduce CPUE. Additionally, line cutters and dehooking devices are 
relatively inexpensive and are a one-time cost that could be paid back 
with the savings from retrieved hooks from one or two trips.
    Response: NMFS agrees that costs associated with purchasing release 
equipment are minimal and that retrieval of fishing gear will reduce 
some of the costs associated with replacement of lost gear.
    Comment 15: If HMS fishermen properly use release equipment, they 
would have the ability to call their target species ``sea turtle 
friendly'' at the marketplace. This would allow for a market edge for 
US-caught fish over imports.
    Response: NMFS agrees that economic costs associated with purchase 
of release equipment could be minimized if consumers perceive the shark 
fishery as conservation minded and correspondingly begin to support the 
sale of shark products in the marketplace. Examples of eco-labeling 
programs, such as those supported by the Marine Stewardship Council, 
illustrate this effect.
    Comment 16: Private sector gear technologists, NGOs, educational 
grants, and other interested parties may be willing to help pay for 
educational workshops. Trainers could donate their time. Fishermen and 
anglers could absorb the costs of travel and time and contribute 
assistance in funding if necessary.
    Response: NMFS will pursue the requirement of mandatory workshops 
during a future rulemaking and intends to investigate these funding 
options at that time.
    Comment 17: NMFS is proposing a number of measures that may change 
the allocation methodology of potential future quotas and cause 
expensive and unnecessary negative impacts to the current commercial 
shark fleet. NMFS should be patient with the shark fishing community 
and minimize the potential for socioeconomic impacts until further 
efforts to stabilize the fleet through better analysis, sufficient 
quotas, buyback program, etc., become more progressed. NMFS should not 
be in a hurry to put fishermen out of business.
    Response: The 2002 stock assessment for LCS documents that the 
complex is overfished and that overfishing is occurring. Under the 
Magnuson-Stevens Act, NMFS must take action to prevent overfishing and 
rebuild overfished stocks. However, to the extent practicable, NMFS is 
delaying implementation of certain measures such as VMS and the time/
area closure to give fishermen time to adjust and will implement relief 
restrictions such as the quota and commercial minimum size immediately. 
This delay in implementation is aimed at minimizing some of the 
economic impacts associated with VMS and the time/area closure.
    Comment 18: NMFS should consider some type of individual quota 
evolved from the current directed shark limited access permit holders. 
These quotas could reduce derby effects and seasonal market gluts.
    Response: Individual transferable quotas (ITQs) may be a viable 
alternative and NMFS may investigate this and other alternatives in a 
future rulemaking.
    Comment 19: NMFS should consider restricting imports of shark 
products to help boost the domestic market.
    Response: The Magnuson-Stevens Act authorizes use of import 
prohibitions under certain circumstances, most notably where another 
country is not complying with an applicable international fishery 
agreement. To date, no such agreement has been reached with regard to 
Atlantic sharks. As such, NMFS cannot impose importation restrictions 
on other countries. However, NMFS is supportive of continuing dialogues 
with international fishery management organizations such as ICCAT, FAO, 
and others as appropriate for developing international fishery 
agreements aimed at shark management.
    Comment 20: NMFS shark management has been both an ecological 
disaster and a knife in the backs of recreational shark fishermen. 
While NMFS spends millions of taxpayer's money to buy out commercial 
fishermen who destroyed the stocks with overfishing, there is no offer 
to compensate those in the recreational fishing business who have been 
bankrupted by NMFS policies.
    Response: There are a variety of Federal programs, which provide 
economic relief to fishermen and other businesses affected by fishery 
management measures. A summary of these programs can be found in 
Chapter 8 of the FEIS. As such, NMFS believes that equal opportunities 
are given to all members of the affected environment, where fishing 
regulations and economic relief are concerned.
    Comment 21: Amendment 1 claims that shark fishermen are paid $0.91 
per pound for LCS. This is quite an achievement given that dealers are 
selling meat for $0.70 to $1.20 per pound to seafood chains.
    Response: The average price used in this rulemaking comes from the 
data submitted to NMFS on weigh-out slips submitted by dealers. The 
average ex-vessel price changes based on which gear was used and which 
area the fish was sold in. For example, LCS caught on pelagic longline 
and sold in the states bordering the Gulf of Mexico had an average ex-
vessel price of $0.45 per pound while pelagic longline-caught LCS sold 
in the South Atlantic had an average ex-vessel price of $1.69 per 
pound. The average of the average prices by gear and region equals the 
$0.91 used in this rulemaking to estimate the gross revenues of 
Federally-permitted fishermen. NMFS does not collect information 
regarding wholesale prices; however, some information from the Fulton 
Fish Market indicates that the average wholesale price also varies 
depending on the species, the state sold, and the month sold.
    In 2003, NMFS began collecting mandatory cost-earnings trip level 
information from 20 percent of all Federal shark permit holders. The 
information collected via this mandatory system should allow NMFS to 
more accurately estimate gross and net revenues of shark fishermen. 
Additionally, the information collected in that system will allow NMFS 
to verify the weigh-out data submitted by dealers.
    Comment 22: In the 2003 SAFE Report produced by the Highly 
Migratory Species Management Division, NMFS reported that over 3 
million pounds dw of LCS had been landed in 2001. In the economic 
analyses of Amendment 1, NMFS reports that only 1.5 million pounds dw 
of LCS had been landed in 2001. These numbers should match.
    Response: The numbers in the SAFE Report include all sharks that 
were reported landed from all available data including landings by 
state fishermen. The SAFE Report numbers are the actual tally of sharks 
landed and are the numbers used in the stock assessment and throughout 
most of Amendment 1. The numbers in the economic analyses in Amendment 
1 are limited in scope and include only those sharks reported landed in 
2001 by fishermen who hold a current Federal shark permit. Thus, the 
numbers in the SAFE Report and the economic analyses of Amendment 1 
should not match.
    Some fishermen who held a permit in 2001 and reported landings, may 
not currently hold a permit, may have let their permit lapse during the 
time NMFS queried the permit database, or

[[Page 74772]]

may have transferred their permit onto another vessel. Thus, their 
landings would not be included in the economic analyses of Amendment 1. 
Similarly, some fishermen fish for sharks only in state waters and do 
not hold a Federal permit. Those landings were not included in the 
economic analyses for Amendment 1. In terms of the economic analyses 
for Amendment 1, this approach is appropriate because any management 
action will have a direct impact on those fishermen who currently have 
Federal permits.

9. General

    Comment 1: The EPA stated that in some cases it is unclear how the 
No Action alternative is assessed for impacts and recommended including 
further information. As an example, EPA refers back to the statement on 
page 4-10 of the draft environmental impact statement that semi-annual 
seasons would not have any ecological impacts because the fishery had 
been managed that way since 1993.
    Response: In the final environmental impact statement, NMFS has 
clarified the No Action alternatives, particularly the explanation of 
any impacts of continuing a particular course of action. In the 
specific example cited by EPA, NMFS does not agree that semi-annual 
seasons have caused adverse ecological impacts. Semi-annual seasons can 
have some ecological impacts if they extend into pupping seasons; 
however, it is unlikely that providing fishermen two fishing seasons 
caused the decline of the stock. Rather, it is likely that the overall 
level of fishing mortality, combined with environmental factors, led to 
the decline of the stock.
    Comment 2: The EPA states that it would be useful for a baseline 
comparison if NMFS could explain why a No Fishing alternative would be 
reasonable or unreasonable.
    Response: In the case of Atlantic sharks, NMFS does not believe 
that a No Fishing alternative is reasonable nor would such an 
alternative be consistent with the Magnuson-Stevens Act. The latest 
stock assessments indicate that the SCS complex is not overfished and 
overfishing is not occurring and that while the LCS complex is 
overfished, the two primary LCS species are not. Given the status of 
the SCS complex, there is no reason why NMFS would consider a No 
Fishing alternative. For the LCS complex, alternatives are available 
that would allow fishing to continue while still allowing the stock to 
rebuild. As described in the Amendment, NMFS feels a No Fishing 
alternative is not consistent with the Magnuson-Stevens Act in that it 
would not minimize social and economic impacts, to the extent 
practicable, nor would it be based on the best available science.
    Comment 3: EPA notes that summary tables that provide clear and 
relevant background information and recommends including a glossary of 
terms, a list of acronyms, and other visual diagrams such as pie 
charts.
    Response: In the final environmental impact statement, NMFS has 
included a list of acronyms and several more diagrams and figures. Many 
of the tables presented in Amendment 1 come straight from the stock 
assessments or other supporting documents, and NMFS feels it would be 
best to rely on the information as it was first presented rather than 
to convert it to an unfamiliar format. Throughout the FEIS, NMFS 
provided definitions for fishing-related terms, such as MSY, in the 
text.
    Comment 4: EPA comments that NMFS should clarify the effects of 
other fisheries on the stocks of sharks and clearly connect relevant 
information throughout the document. As an example, EPA refers to a 
quote regarding the amount of commercial landings of SCS compared to 
bycatch (page 3-13 of the draft Amendment) and compares this quote to 
other quotes regarding the amount of LCS bycatch in the menhaden 
fishery (page 3-75 of the draft Amendment). EPA also mentioned the need 
to clarify and expand upon the discussion of collection of sharks for 
public display.
    Response: NMFS has tried to clarify and connect relevant 
information throughout the final Amendment in order to provide a 
context for any related analyses. Regarding the specific example given 
by EPA, NMFS notes that the SCS and LCS fisheries are two different 
fisheries with different species of sharks and that bycatch of SCS is 
not necessarily related to bycatch of LCS. For example, while the 
menhaden fishery catches both SCS and LCS, 97 percent of the catch of 
sharks are LCS and only 3 percent are SCS. Regarding the example of 
public display, NMFS has added details regarding the number of sharks 
taken for public display each year and the impact on the stocks.
    Comment 5: EPA comments that NMFS should clarify the impact of 
other fishery practices on sharks. If sharks are being significantly 
diminished by other fishery practices, the FEIS should contain a short 
discussion of what other FMPs are doing to minimize impacts on sharks 
and provide a webpage link to that other FMP.
    Response: NMFS agrees that knowledge regarding the relationship 
between shark catches in other fisheries and their impact on shark 
stocks needs to be examined and improved. For several years, NMFS has 
been working on including this type of information in the stock 
assessments. For example, the 1998 LCS stock assessment included 
Mexican catches for the first time and the 2002 LCS stock assessment 
expanded upon the Mexican catches and included information regarding 
shark bycatch in the menhaden fishery. However, while the total number 
of sharks taken as bycatch in other fisheries might be large, most 
fishery managers consider the bycatch in individual fisheries under 
their purview to be a low priority, particularly compared to the target 
catch and bycatch of other managed or protected species. Thus, many 
FMPs do not analyze in detail the impacts of the specific target 
fisheries on sharks. Additionally, as described above, NMFS recently 
released National Bycatch Implementation Plans for different fisheries. 
Several of the implementation plans for other fisheries outline 
recommendations for improving monitoring of bycatch in these fisheries. 
As information on shark bycatch in these fisheries becomes available, 
it will be incorporated in future stock assessments.
    Comment 6: Draft Amendment 1 was too large. The document needs to 
be condensed to be easily understood.
    Response: Legal requirements dictate the content of fishery 
management plans and plan amendments, the analyses that are required, 
and the need to respond to public comments. However, to enhance the 
public's ability to understand the final Amendment, NMFS has provided 
an executive summary in the final Amendment, an updated one-page chart 
that outlines the regulations and highlights major changes from the 
draft Amendment, and summary and explanatory tables and figures 
throughout the document. As required by the Regulatory Flexibility Act, 
NMFS will also be providing a small entity compliance guide for the 
final rule. Additionally, NMFS will be updating and revising the 
current recreational and commercial brochures based on the changes to 
the regulations.
    Comment 7: NMFS should accept comments via e-mail.
    Response: NMFS is working towards a system that would allow the 
public to submit comments electronically over the web. In 2001, NMFS 
issued the first ``e-comment'' pilot program for a proposed rule 
regarding issues in HMS charter/headboat fisheries. Based on the 
results from this pilot, NMFS made a number of improvements and 
continues to test the program on other rules in

[[Page 74773]]

order to ensure that the final e-comment program is user-friendly and 
provides an adequate method of providing comments. A link to 
regulations that are accepting comments via the web can be found off 
the main NMFS Web page at: http://www.nmfs.noaa.gov. NMFS is also 
working on a system that would allow commenters to submit comments via 
e-mail. This system may be available for use in 2004.
    Comment 8: NMFS received a range of comments on the rule and 
Amendment as a whole. Comments included: NMFS should be commended for 
adhering to the scientific recommendations from recent stock 
assessments and proposing conservation measures that have a reasonable 
chance to protect all shark species. This proposed rule is an 
encouraging step forward in the long process of rebuilding; management 
is on the correct path to rebuilding and sustaining this fishery. The 
continued communication and cooperation between various stakeholders 
and the inclusion of interested parties and user groups from the 
inception of the process has helped to ensure the success of these 
management measures. NMFS has proposed a rule that walks down the 
middle to allow for a viable commercial fishery while protecting the 
most vulnerable species; all the alternatives are linked to account for 
the 50-percent reduction that is needed. The proposed measures will not 
be enough catalyst to regain a healthy population across the whole 
spectrum of the shark species; the ``collective impact of humanity'' on 
the total population has to be addressed as well as the simplistic 
concept of the population being overfished.
    Response: Management measures in this document are a step forward 
towards rebuilding and are a result of the participation and 
cooperation of various stakeholders and user groups. Consistent with 
the Magnuson-Stevens Act, the measures in the final Amendment and this 
rule are based on the best available science, will rebuild the LCS 
complex, prevent overfishing of Atlantic sharks, provide for commercial 
and recreational fisheries, and will clarify other shark-related 
management measures. Without these management measures, some management 
measures that are not based on the best available science, such as the 
1999 commercial quotas, will go in place, contrary to the Magnuson-
Stevens Act. NMFS will continue to work with stakeholders on issues not 
addressed in this rulemaking during a future rulemaking process.
    Comment 9: NMFS received a range of comments regarding who is 
influencing agency decisions. One commenter noted that NMFS settled 
with the commercial fishing industry but is fighting the environmental 
groups tooth and nail in order to protect commercial fish profits. 
Another commenter was concerned that NMFS is being overly influenced by 
environmentalists.
    Response: Environmental groups, recreational fishermen, and 
commercial fishermen all had the chance to participate in the process 
and submit comments on the scoping documents and the Draft Amendment 1 
and proposed rule. While NMFS considers these comments in selecting the 
alternatives, the Agency follows the mandates of the Magnuson-Stevens 
Act and other domestic law when finalizing actions, not the influence 
of particular stakeholders.
    Comment 10: While state waters are outside of NMFS' jurisdiction, 
ensuring rebuilding of overfished sharks is not. NMFS must develop a 
strategy for working with states and state commissions to implement 
cooperative shark management in nearshore waters.
    Response: NMFS will continue to work with states and the Fishery 
Management Councils with a goal of consistent management in mind. At 
the time of finalization of the HMS FMP, several states indicated their 
intent to develop more consistent regulations but decided to postpone 
their efforts due to the unstable legal environment for Federal shark 
management. Upon completion of this rule and during the scoping 
processes for future rulemakings, NMFS hopes to work with those and 
other states, possibly through the implementation of Memorandum of 
Understandings, to ensure that, at the minimum, NMFS can have access to 
all state shark landings and catches from all fisheries for use in 
future stock assessments.
    Comment 11: NMFS must reduce bycatch and mortality of sharks in 
both directed and non-directed fisheries; establish a standardized 
bycatch reporting methodology; account for all sources of mortality 
when determining shark quotas and closures; and allocate levels of 
observer coverage that are adequate to provide statistically 
significant estimates of catch and bycatch.
    Response: As described above, NMFS recently issued National Bycatch 
Implementation Plans for various fisheries, including HMS fisheries. 
Sources of shark mortality other than the directed fishery landings are 
included as part of the stock assessments from which the quotas were 
developed. Levels of observer coverage are generally set at five 
percent of the total effort in each fishery unless there is a concern 
that more coverage would be beneficial, as is the case for the shark 
gillnet fishery where 100 percent observer coverage is required during 
the right whale calving season.
    Comment 12: NMFS should identify and quantify the potential impacts 
of any HMS fisheries on seabirds so that appropriate protocols can be 
developed to alleviate potential chronic mortalities associated with 
the fishery or gear. This will be especially important in future 
actions associated with pelagic sharks and other components with the 
HMS FMP.
    Response: Potential impacts to seabird populations should continue 
to be monitored and where appropriate, protocols developed to alleviate 
bycatch problems. Relatively few seabird interactions have been 
identified in the Atlantic shark fisheries. If a potential problem is 
identified with the pelagic longline fishery this can be addressed in a 
future rulemaking.
    Comment 13: Draft documents need to ensure that detailed effort 
data is incorporated into the text and tables, especially regarding the 
bycatch of sea turtles, marine mammals, and sea birds. For example, 
draft Amendment 1 does not properly quantify the level of observer 
effort involved in documenting seabird bycatch in the Atlantic pelagic 
longline fishery (Table 3.38). Therefore, the conclusion that seabird 
interactions are relatively low holds little merit.
    Response: The Final Amendment 1 provides an overview of the types 
of seabird interactions in the shark fishery. The conclusion regarding 
the level of seabird interactions in Amendment 1 is based on the take 
of a single seabird in nine years of observer data from the shark 
bottom longline fishery.
    Comment 14: NMFS should increase boat and catch monitoring efforts.
    Response: NMFS already requires 100 percent observer coverage for 
shark gillnet vessels operating during the right whale calving season 
and approximately 50 percent outside of the calving season. Observer 
coverage in the shark bottom longline fishery is targeted as five 
percent while pelagic longline vessels operating in the NED 
experimental area are required to carry an observer at all times. A 
target of five percent observer coverage for pelagic longline vessels 
fishing outside of the NED is in place. Additional resources would need 
to be identified in order to increase observer coverage.
    Comment 15: I need time to prepare for other fisheries and hire 
crew between notice of the final rule and implementation.
    Response: For a number of regulations, such as implementation of 
the time/area closure and VMS

[[Page 74774]]

requirement, NMFS is providing time for fishermen to adjust to and 
prepare for the changes. The commercial quotas, elimination of the 
commercial minimum size, and certain other measures will be effective 
at the start of the 2004 fishing year to ensure that more restrictive 
measures do not go into effect. NMFS provided the approximate dates of 
effectiveness for the requirements in the Executive Summary of 
Amendment 1 and before the Response to Comments section of this rule.
    Comment 16: Are you leaving the 4,000 lb LCS trip limit alone? NMFS 
should consider some type of trip limit tolerance because the trip 
limit is not working well now that sandbar and blacktip sharks are not 
overfished.
    Response: This rule will not change the 4,000 lb LCS directed trip 
limit. In the Issues and Options paper released during the public 
scoping phase of Amendment 1, NMFS indicated that changing the 4,000 lb 
LCS directed trip limit could be one of the management measures 
addressed in Amendment 1. However, given the possible changes as a 
result of Amendment 1, NMFS felt some of the items in the Issues and 
Options paper, including the 4,000 lb LCS trip limit were beyond the 
scope of this rulemaking. NMFS may consider those issues in a future 
rule.
    Comment 17: NMFS should allow fishermen to fish until the quota is 
caught instead of scheduling closure dates. I am afraid that if we have 
a couple of years where we do not catch the quota because of weather, 
that the quota will be taken away from us. NMFS should monitor landings 
and allow the season to remain open until the quota is filled.
    Response: Before the HMS FMP, NMFS monitored the landings and gave 
five days notice before closing the fishery. This technique led to the 
quota being exceeded, derby fishing, and unreliable markets because no 
one knew when the fishery would be closing. Additionally, some dealers 
and fishermen delayed sending in their reports in an effort to keep the 
fishery open longer. To address these concerns, in the HMS FMP, NMFS 
decided to announce, based on previous catch rates, the closing date of 
the fishery before the fishery opened. Additionally, any over-or 
underharvest would come off of or be added to the same season's quota 
of the following year (e.g., first semi-annual season to first semi-
annual season). This technique appears to be working (e.g., fewer 
seasonal quotas have been exceeded and fishing seasons have lengthened) 
and during scoping few fishermen wanted to change the current system. 
With the transition to trimester and regional quotas, there may be some 
adjustment needed in terms of calculating catch rates and estimating 
the length of the seasons in each region; however, NMFS does not intend 
to ``take quota away'' because of underharvests. In the future, NMFS 
might adjust the percent of quota available in each fishing season 
(e.g., if one season is always exceeded while another season always has 
quota left, some of the quota may be moved to the first season from the 
second) or might adjust the percent of quota available to each region 
(e.g., if one region always exceeds its quota while another region does 
not land its full portion, some of the quota from the second region 
might be transferred to the first region). However, any such adjustment 
would require a rulemaking and would not change the overall total quota 
available.
    Comment 18: NMFS should be relying on an observer report from 1994 
through 2002, not a report from recent years.
    Response: NMFS is using the best available science which includes 
several observer reports that cover only one or two years each.
    Comment 19: NMFS should re-examine the five percent fin ratio rule. 
The legal percentage does not work accurately unless the sandbar shark 
catch is blended down by other LCS with smaller fins.
    Response: NMFS first implemented the five percent fin ratio in the 
1993 Shark FMP. This ratio was based on research that indicated that 
the average ratio of fin weight (including first dorsal, pectorals, and 
lower caudal fins) to dressed weight of the carcass was 3.6 percent and 
the sandbar fin ratio was 5.1 percent. Observer data indicate that, 
except for a couple of years, the fin ratio for all observed sharks has 
been under five percent. In December 2000, the Shark Finning 
Prohibition Act was signed. This Act, which implements the five percent 
finning ratio for all shark fisheries in the United States, was fully 
implemented through a final rule released in February 2002. Thus, any 
changes to the five percent fin ratio would have to be the result of 
Congress modifying the Act.
    Comment 20: Because porbeagle sharks are often caught while 
pursuing cod, mackerel, and other New England finfish, northeast 
groundfish commercial fishermen should be allowed to keep one porbeagle 
shark per day per trip without a commercial shark fishing permit.
    Response: Since 1993, fishermen who have caught and sold sharks in 
Federal waters have been required to have a Federal shark permit. In 
1999, NMFS implemented a limited access program for the Atlantic shark 
fisheries. Under this program, any fisherman who had a Federal shark 
permit and reported landing a limited number of sharks could qualify 
for either a directed or incidental Federal shark limited access 
permit. This program was implemented to reduce latent effort in the 
shark fishery and reduce overcapitalization in order to rebuild the LCS 
complex and prevent overfishing on other shark species. From past 
experience, NMFS knows that porbeagle sharks are highly susceptible to 
overfishing. Until a stock assessment on porbeagle sharks indicates 
that the porbeagle shark is not overfished and is not experiencing 
overfishing, NMFS does not want to re-open that sector of the shark 
fishery. However, those fishermen wishing to land porbeagle sharks can 
either obtain a commercial permit from someone leaving the fishery or 
obtain a recreational permit. Any porbeagle sharks that are landed 
would have to be caught with an authorized gear type.
    Comment 21: NMFS has not done one iota to protect mako sharks 
except limit recreational fishermen. While the proposed rule does have 
some positive proposals that limit commercial fishing, conservation of 
the most important recreational sharks left, pelagic sharks, continues 
to be ignored.
    Response: NMFS is working with ICCAT to collect data in order to 
conduct an international stock assessment of pelagic sharks. Because 
pelagic sharks traverse the Atlantic Ocean, NMFS is not able to conduct 
an accurate stock assessment without data from other countries. The 
international stock assessment is expected to occur in 2004. Once the 
international stock assessment is complete, NMFS will consider the 
results and will modify the management measures for pelagic sharks, as 
appropriate.
    Comment 22: NMFS should consider converting directed shark permits 
that have been inactive since July 1999 to incidental permits. This 
could help reduce latent effort from becoming active during the 
rebuilding period.
    Response: NMFS is considering several options to could lead to 
changes in the current limited access program in a future rule. NMFS 
will consider comments such as this one at that time.
    Comment 23: The number of shark permits should be reduced to 10.
    Response: In 1999, NMFS implemented a limited access program in the 
commercial shark fishery to reduce latent effort and capitalization in 
the fishery. This program established two types of commercial shark 
permits: directed and incidental. The directed

[[Page 74775]]

permits allow fishermen to target sharks while the incidental permits 
were designed to allow fishermen who target other species to land a 
limited number of sharks, thus reducing regulatory discards. At this 
time, NMFS recently approved a Saltonstall-Kennedy Grant to researchers 
who are examining the feasibility of a buyout program for commercial 
shark fishermen. Additionally, NMFS will consider other options, such 
as conversion of directed to incidental permits or individual 
transferable quotas, to revise and refine the current limited access 
program in a future rule.
    Comment 24: Enforcement personnel should be hired and trained to 
catch fishermen who illegally take and kill any fish species. The 
budget for enforcement is too small and should be increased by 800 
percent.
    Response: Enforcement personnel are trained to catch fishermen who 
illegally take and kill any fish species. With a budget increase, more 
enforcement personnel could be hired and additional resources could be 
obtained to enhance enforcement efforts throughout the Atlantic Ocean, 
Gulf of Mexico, and Caribbean Sea.
    Comment 25: The more information NMFS has, the more money fishermen 
lose.
    Response: Improved information ensures that NMFS can better address 
economic, social, and ecological impacts of proposed management 
measures. For example, in the 1999 HMS FMP, NMFS finalized commercial 
shark quotas that are lower than those quotas selected in Amendment 1. 
However, based on new information and analyses, the latest stock 
assessment indicates that two species of LCS are no longer overfished. 
Thus, NMFS is able to select the higher quotas in Amendment 1 than 
those finalized in 1999. Ideally, as the status of LCS improves, the 
commercial quota should be able to increase. However, without data from 
the fishermen, NMFS will not know if the status is improving and 
therefore would not be able to increase the quota. Indeed, with less 
data, NMFS may decide that the best, most risk-averse, course of action 
would be to lower the quotas.
    Comment 26: NMFS should integrate the Large Pelagic Survey (LPS) 
within the MRFSS in order to expand and improve the acquisition of 
recreational landings data for sharks and other HMS.
    Response: NMFS continues to explore improvements to the design of 
the LPS and has implemented some of these for the 2003 fishing year. 
The biggest change was integrating the charterboat and headboat sectors 
of the LPS and MRFSS into a single For-Hire Survey for the Atlantic 
Coast. A separate For-Hire Survey was implemented in 2001 for the Gulf 
of Mexico. Both of these efforts should provide improved estimates of 
recreational catch and landings of HMS as well as non-HMS. Evaluation 
of other modifications already implemented for the LPS are ongoing and 
may lead to additional changes to survey design and estimation 
procedures.
    Comment 27: NMFS received several comments regarding where public 
hearings should have been held because there are a lot of fishermen who 
could be affected by the proposed regulations. These areas included New 
Jersey, Virginia, and Fort Pierce, Florida. NMFS also heard that 
Montauk, New York should not have had a public hearing because there 
are no fishermen in the area and it is too far to drive.
    Response: NMFS tries to schedule a number of public hearings along 
the Atlantic and Gulf of Mexico coasts in areas where there are a 
number of fishermen but understands that some areas with many fishermen 
will likely be unintentionally missed. For Amendment 1, NMFS tried to 
coordinate public hearings with Fishery Management Council meetings in 
order to reduce travel for stakeholders who were interested in 
attending both meetings. In other cases, NMFS scheduled hearings at 
areas where attendance at previous hearings has been large. People who 
are unable to attend a public hearing are always welcome to submit 
written comments or to call NMFS and speak to someone directly. 
Comments provided over the phone during the comment period are 
considered part of the public record.
    Comment 28: NMFS needs to mail fishermen information about public 
hearings to notify permit holders. While we were mailed information 
about the hearings for the proposed rule, we did not hear about the 
scoping meetings.
    Response: NMFS announces its intentions in a variety of methods 
including automated infolines, the HMS Fax network, the HMS web page, 
the weekly electronic newsletter FishNews, and through mailings. 
Because some permit holders have told NMFS that they feel many of the 
mailings sent are equivalent to junk mail, in this case NMFS limited 
the mailing to information regarding the actual proposed rule and not 
the scoping meetings. However, for both the scoping and proposed rules, 
NMFS used all other methods to announce relevant information. If you 
would like to be included on any of these automatic distributions 
(e.g., the HMS Fax network or FishNews) please call the HMS Management 
Division at (301) 713-2347 or visit the NMFS home page at http://www.nmfs.noaa.gov for more information.

Changes From the Proposed Rule

    NMFS has made several changes to the proposed rule. These changes 
are outlined below.
    (1) In the proposed rule, NMFS proposed a LCS rebuilding time frame 
of 27 years from 2004. In the final rule, NMFS corrects an error in 
calculating the mean generation time for LCS. The correction of this 
error leads to a rebuilding time frame of 26 years from 2004 in the 
final rule.
    (2) In the proposed rule, NMFS proposed a LCS quota of 1,109 mt dw 
(2.4 million lbs dw) based on a 40-percent reduction from MSY. Based on 
public comment regarding the proposed reduction, a review of the draft 
Amendment 1 by the Southeast Fisheries Science Center, and revisions to 
the proposed time/area closure, NMFS increased the quota reduction to 
45 percent. Thus, this final rule establishes the annual LCS quota at 
1,017 mt dw (approximately 2.2 million lbs dw) based on a 45-percent 
reduction from MSY.
    (3) NMFS proposed a prohibition on drift gillnet gear while 
allowing strikenet gear in order to reduce protected species 
interactions while allowing gillnet vessels to continue to fish. In the 
comment period, NMFS heard that strikenet gear was not an efficient 
method of fishing for SCS, almost all the gillnet fishermen would go 
out of business, and it would be difficult for enforcement to tell if a 
shark was taken via strikenet or drift gillnet gear. Thus, this final 
rule does not prohibit drift gillnet. Instead, NMFS will consider other 
methods to reduce bycatch in the drift gillnet fishery in a future 
rulemaking.
    (4) NMFS proposed a time/area closure for bottom longline gear off 
the coasts of Virginia, North Carolina, and South Carolina in order to 
reduce catch of dusky sharks and juvenile sandbar sharks. While some 
fishermen agreed with the principle of closing areas in nursery 
grounds, they commented that the proposed area was too large and 
encompassed more than just nursery grounds. Fishermen also suggested 
closing areas only in shallow waters. As a result, NMFS refined the 
time/area closure. The time/area closure for bottom longline gear in 
this final rule encompasses an area off of part of North Carolina out 
to approximately 60 fathoms.
    (5) In order to enforce the proposed time/area closure for bottom 
longline

[[Page 74776]]

gear and the existing time/area closure for gillnet gear, NMFS proposed 
the installation and use of VMS on vessels with bottom longline and 
gillnet gear on board. Analyses indicated that shark bottom longline 
vessels are not mobile. Therefore, the proposed rule required VMS on 
bottom longline vessels only between 32[deg] and 38[deg] N. latitude. 
Because NMFS has reduced the size of the time/area closure for bottom 
longline gear, this final rule also reduces the size of the area where 
VMS is required for directed shark vessels with bottom longline gear. 
This final rule requires directed shark vessels with bottom longline 
gear on board to have VMS on board from January through July when they 
are located between 33[deg] and 36[deg]30' N. latitude, and directed 
shark vessels with gillnet gear on board to have VMS on board right 
whale calving season.
    (6) NMFS also made several non-substantial changes to the final 
regulatory text to facilitate enforcement and clarify the regulations 
and their intent.

Annual Landings Quotas

    The 2004 annual landings quotas for LCS and SCS are established at 
1,017 mt dw (2,242,078 lbs dw) for LCS and 454 mt dw (1,000,888.4 lbs 
dw) for SCS. The 2004 quota levels for pelagic, blue, and porbeagle 
sharks are established at 488 mt dw (1,075,844.8 lbs dw), 273 mt dw 
(601,855.8 lbs dw), and 92 mt dw (202,823.2 lbs dw), respectively. 
These quotas are split equally between the two 2004 fishing seasons. 
The trimester seasons (i.e., three four-month periods), finalized in 
this rule, will not go into effect until January 1, 2005.
    In 2003, the first semiannual fishing season quota for ridgeback 
LCS was set at 391.5 mt dw and for non-ridgeback LCS was set at 465.5 
mt dw. As of September 2003, approximately 451 mt dw ridgeback LCS and 
461 mt dw non-ridgeback LCS had been reported landed. This constitutes 
an overharvest for the first 2003 semiannual fishing season for the LCS 
complex of 55.4 mt dw. Thus, consistent with Sec.  635.27(b)(1)(vi), 
the first 2004 semiannual fishing quota for LCS is established at 453.1 
mt dw (508.5 mt dw-55.4 mt dw). Consistent with Sec.  
635.27(b)(1)(iii), this semiannual fishing season quota is further 
split between the three fishing regions as follows: Gulf of Mexico--
190.3 mt dw (419,535.4 lbs dw); South Atlantic--244.7 mt dw (539,465.6 
lbs dw); and North Atlantic--18.1 mt dw (39,903.3 lbs dw).
    In the 2003 first semiannual fishing season for SCS, the quota was 
established at 163 mt dw. As of September 2003, approximately 109 mt dw 
had been reported landed. This constitutes an underharvest for the 
first 2003 semiannual fishing season of 54 mt dw. Thus, consistent with 
Sec.  635.27(b)(1)(vi), the first 2004 semiannual fishing quota for SCS 
is established at 281 mt dw (227 + 54 mt dw). Consistent with Sec.  
635.27(b)(1)(iv), this semiannual fishing season quota is further split 
between the three fishing regions as follows: Gulf of Mexico--11.2 mt 
dw (24,691.5 lbs dw); South Atlantic--233.2 mt dw (514,112.7 lbs dw); 
and North Atlantic--36.5 mt dw (80,467.9 lbs dw).
    The first 2004 semiannual quotas for pelagic, blue, and porbeagle 
sharks are established at 244 mt dw (537,922.4 lbs dw), 136.5 mt dw 
(300,927.9 lbs dw), and 46 mt dw (101,411.6 lbs dw), respectively. 
These are the same quotas that were established for the first 2003 
semiannual season. As of September 2003, approximately 39 mt dw had 
been reported landed in the first 2003 semiannual fishing season in 
total for pelagic, blue, and porbeagle sharks combined. Additionally, 
data indicate that in 2002, 68 mt whole weight (ww) of blue sharks were 
discarded dead in the pelagic longline fishery. Thus, the pelagic shark 
quota does not need to be reduced consistent with Sec.  
635.27(b)(1)(vi).
    NMFS will take appropriate action before July 1, 2003, in order to 
determine and announce the second 2004 semiannual quotas for Atlantic 
sharks.

Fishing Season Notification

    The first semiannual fishing season of the 2004 fishing year for 
the commercial fishery for LCS, SCS, pelagic sharks, blue sharks, and 
porbeagle sharks in all regions in the western north Atlantic Ocean, 
including the Gulf of Mexico and the Caribbean Sea, will open January 
1, 2004. To estimate the closure dates of the LCS, NMFS calculated the 
average reported catch rates for each region from the first seasons 
from recent years (2000, 2001, 2002, and 2003) and used these average 
catch rates to estimate the amount of available quota that would likely 
be taken by the end of each dealer reporting period. Because state 
landings after a Federal closure are counted against the quota, NMFS 
also calculated the average amount of quota reported received after the 
Federal closure dates of the years used to estimate catch rates. 
Additionally, pursuant to Sec.  635.5(b)(1), shark dealers must report 
any sharks received twice a month: those sharks received between the 
first and fifteenth of every month must be reported to NMFS by the 
twenty-fifth of that month and those received between the sixteenth and 
the end of the month must be reported to NMFS by the tenth of the 
following month. Thus, in order to simplify dealer reporting and aid in 
managing the fishery, NMFS will close the Federal LCS fishery on either 
the fifteenth or the end of any given month.
    Based on average LCS catch rates in recent years in the Gulf of 
Mexico region, approximately 78 percent of the available LCS quota 
would likely be taken by the last week of February and 103 percent of 
the available LCS quota would likely be taken by the second week of 
March. Dealer data also indicate that, on average, approximately 27 mt 
dw of LCS have been reported received by dealers after a Federal 
closure. This is approximately 14 percent of the available quota. Thus, 
if catch rates in 2004 are similar to the average catch rates from 2000 
to 2003, 92 percent (78 + 14 percent) of the quota could be caught over 
the entire semiannual season if Federal waters are closed during the 
last week of February. If the fishery remains open until the second 
week of March, the quota would likely be exceeded. Accordingly, the 
Assistant Administrator for Fisheries (AA) has determined that the Gulf 
of Mexico LCS quota for the first 2004 semiannual season will likely be 
attained by February 29, 2004. Thus, the Gulf of Mexico LCS fishery 
will close on February 29, 2004, at 11:30 p.m. local time.
    Based on average LCS catch rates in recent years in the South 
Atlantic region, approximately 73 percent of the available LCS quota 
would likely be taken by the second week of February and 94 percent of 
the available LCS quota would likely be taken by the end of February. 
Dealer data also indicate that, on average, approximately 58 mt dw of 
LCS are reported received by dealers after a Federal closure. This is 
approximately 24 percent of the available quota. Thus, if catch rates 
in 2004 are similar to the average catch rates from 2000 to 2003, 97 
percent (73 + 24 percent) of the quota could be caught over the entire 
semiannual season if Federal waters are closed during the second week 
of February. If the fishery remains open until the end of February, the 
quota would likely be exceeded. Accordingly, the AA has determined that 
the South Atlantic LCS quota for the first 2004 semiannual season will 
likely be attained by February 15, 2004. Thus, the South Atlantic LCS 
fishery will close on February 15, 2004, at 11:30 p.m. local time.

[[Page 74777]]

    Based on average LCS catch rates in recent years in the North 
Atlantic region, approximately 33 percent of the available LCS quota 
would likely be taken by the second week of April and 42 percent of the 
available LCS quota would likely be taken by the end of April. Dealer 
data also indicate that, on average, approximately 10 mt dw of LCS are 
reported received by dealers after a Federal closure. This is 
approximately 60 percent of the available quota. Thus, if catch rates 
in 2004 are similar to the average catch rates from 2000 to 2003, 93 
percent (33 + 60 percent) of the quota could be caught over the entire 
semiannual season if Federal waters are closed during the second week 
of April. If the fishery remains open until the last week of April, the 
quota would likely be exceeded. Accordingly, the AA has determined that 
the North Atlantic LCS quota for the first 2004 semiannual season will 
likely be attained by April 15, 2004. Thus, the North Atlantic LCS 
fishery will close on April 15, 2004, at 11:30 p.m. local time.
    When quotas are projected to be reached for the SCS, pelagic, blue, 
or porbeagle shark fisheries, the AA will file notification of closure 
at the Office of the Federal Register at least 14 days before the 
effective date.
    During a closure, retention of, fishing for, possessing or selling 
LCS are prohibited for persons fishing aboard vessels issued a limited 
access permit under 50 CFR 635.4. The sale, purchase, trade, or barter 
of carcasses and/or fins of LCS harvested by a person aboard a vessel 
that has been issued a permit under 50 CFR 635.4 are prohibited, except 
for those that were harvested, offloaded, and sold, traded, or bartered 
prior to the closure and were held in storage by a dealer or processor.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    As required under the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) 
for the draft Amendment 1 and its proposed rule (68 FR 45196, August 1, 
2003) and prepared an FRFA for the final Amendment 1 and this final 
rule. The FRFA examines the economic impacts of the management 
alternatives on small entities in order to determine ways to minimize 
economic impacts. A summary of the information presented in the FRFA is 
below. Amendment 1 provides further discussion of the economic impacts 
of all the alternatives considered.
    The need for and objective of the final rule are fully described in 
the preamble of the proposed rule (68 FR 45196, August 1, 2003) and in 
final Amendment 1 and are not repeated here.
    As set forth above, NMFS received many comments on the proposed 
rule and draft Amendment 1 during the comment period. NMFS did not 
receive any comments specific to the IRFA, but did receive a limited 
number of comments on the potential for substantial impacts related to 
the proposed commercial quota reductions, implementation of trimester 
seasons and regional quotas, gillnet restrictions, VMS requirements, 
and the time/area closure. In summary, commenters noted that commercial 
quota reductions, VMS requirements, and the bottom longline time/area 
closure offshore North Carolina would put fishermen out of business and 
create less economic stability among industry participants; 
implementation of trimester seasons and regional quotas could disrupt 
existing markets and lead to insufficient income; and requiring the 
strikenet method only would not allow the commercial shark gillnet 
fishery to continue while minimizing interactions, as it was originally 
intended.
    The economic analyses and IRFA for the proposed rule acknowledged 
that reductions in commercial quotas, implementation of trimesters, 
regional quotas, VMS requirements, and the time/area closure would 
likely result in economic impacts to the fishery as a whole, some of 
which may be significant for small entities/vessel owners. However, all 
of these alternatives, when compared to the other alternatives 
considered, mitigate undesirable or greater economic impacts associated 
with continued overfishing, shortened seasons, bycatch of vulnerable 
species, and economic instability of fishery participants and 
associated fishing communities in the long-term. The combination of 
these preferred alternatives is necessary for LCS to rebuild and SCS to 
achieve optimum yield, consistent with the objectives of this rule, the 
Magnuson-Stevens Act, and other domestic laws.
    In order to mitigate some of the economic impacts, NMFS will delay 
effectiveness of trimester seasons, VMS requirements, and the time/area 
closure in order to give fishermen time to (1) purchase VMS units, (2) 
work with dealers to enhance market prices and plan out advertising 
strategies with grocers, and (3) prepare and plan for the closure. 
Furthermore, NMFS re-evaluated and refined the size of the proposed 
time/area closure. The revised time/area closure, which is anticipated 
to affect only eight vessels as opposed to 13 anticipated in the 
proposed rule, mitigates the economic impacts to small entities 
directly affected by the revised closure by $17,956 in total gross 
revenues as compared with the original preferred alternative. Finally, 
the final regulations will permit the use of drift gillnets with 
possible gear modifications or other measures being implemented in a 
future rulemaking, based upon further study.
    NMFS considers all permit holders to be small entities. In October 
2002, there were approximately 251 directed shark permit holders and 
376 incidental shark permit holders for a total of 627 permit holders 
who were authorized to fish for sharks. As of September 2003, there 
were approximately 256 directed permit holders and 351 incidental 
permit holders for a total of 607 permit holders who are authorized to 
fish for sharks and could be affected by the preferred alternatives 
outlined in the final rule. Only about 20 percent of all permit holders 
are actually active in the fishery. Currently, 120 vessels (i.e., 
number of vessels that reported landings of shark during 2001) would be 
directly affected by changes (i.e., increases/decreases) in shark 
quotas or other changes to the commercial management measures.
    The revised time/area closure would have a direct economic impact 
on a total of 23 vessels (out of 256 total directed permits issued in 
2003 [sim] 9 percent) with directed shark permits. As of September 
2003, only eight vessels with home ports in North Carolina reported 
shark landings during 2001.
    NMFS knows of fewer than 11 shark fishermen who have used drift 
gillnet gear to target sharks at some point in the past and only five 
in recent years. These five vessels would have been affected by the 
strikenet only requirement in the proposed rule; however, NMFS is not 
implementing that requirement.
    The recreational requirements proposed in this rulemaking could 
affect all recreational HMS permit holders including HMS angling 
category permit holders ([sim] 18,249 as of September 2003) and HMS 
charter/headboat permit holders ([sim] 4,041 as of September 2003). 
These permit holders can target any HMS; however, few actually target 
sharks.
    Other sectors of HMS fisheries such as dealers, processors, bait 
houses, and gear manufacturers might be affected by these regulations, 
particularly the shift to trimester seasons for commercial fisheries, 
reduction in commercial LCS

[[Page 74778]]

quota/increase in commercial SCS quota, and time/area closure off North 
Carolina during the winter commercial fishery. However, the final 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 not discussed in the FRFA.
    Some of the preferred alternatives in this document may result in 
additional reporting, record-keeping, and compliance requirements. The 
final rule requires Atlantic directed shark fishermen located near the 
bottom longline time/area closure (approximately eight vessels) and 
approximately five shark gillnet vessels to install and activate a VMS 
unit. As discussed below, OMB has approved this collection of 
information. The costs associated with implementing a VMS program in 
the Atlantic shark gillnet fishery include an initial average cost per 
vessel of approximately $2,275 (not including postage costs for 
returning certification statement), an average annual maintenance cost 
of approximately $500/year, and approximately $197.28/year for 
communications during the right whale calving season. Costs associated 
with implementing a VMS program in the directed shark bottom longline 
fishery include an initial average cost per vessel of approximately 
$2,275 (not including postage costs for returning certification 
statement), an average annual maintenance cost of approximately $500/
year, and approximately $305.28/year for communications during the 
seven month shark bottom longline time/area closure. The position 
reports generated by the VMS units are automatic so no time burden is 
imposed on the vessel operator. Installation of VMS will likely 
increase costs to the vessel owner but should not increase the needed 
skill level required for HMS fisheries.
    The increase in the recreational bag and size limits, change in 
authorized gear types, addition of the bottom longline time/area 
closure, requirement to have and use release equipment, and requirement 
to move 1 nmi after interacting with a protected species may change the 
way and areas in which fishermen can fish and set their gear, require 
the possession and use of specific equipment, limit the gears 
authorized for use in recreational shark fisheries, and increase the 
skill level needed to participate in HMS fisheries. The increased 
recreational bag and size limit could result in positive economic 
benefits if they result in increased tournament participation and 
business profits within the charter/headboat industry for sharks. NMFS 
does not expect changes to the recreational authorized gear to have any 
substantive economic impacts, because sharks caught recreationally in 
Federal waters cannot be sold and the majority of HMS recreational 
fishermen already use the gears being authorized in this final rule. 
The bottom longline time/area closure and VMS could have significant 
economic impacts, particularly for those fishermen in states bordering 
the closure (i.e., North Carolina). However, for vessels not directly 
affected by the closure there might be a few economic benefits, and 
NMFS anticipates long-term benefits to the fishery as a whole when the 
LCS complex rebuilds. The bycatch release equipment and moving 1 nmi 
after an interaction would likely only have minor economic impacts 
(e.g., the purchase of stainless-steel hooks and release equipment and 
minor increases in fuel costs to move one mile after an interaction). 
Although the release equipment is relatively simple to use, limited 
training may be required to use them effectively.
    No economic impacts are anticipated from the display permit 
alternative, because this is an administrative name change that does 
not affect current application processes or related regulations. In 
addition, the quotas and fishing seasons in this final rule are not 
likely to change reporting or compliance in the fishery.
    NMFS considered a number of alternatives that could minimize the 
economic impact of the preferred alternatives, particularly those 
pertaining to LCS commercial quota reductions, revised time/area 
closures, VMS requirements, and use of corrodible hooks and release 
equipment aboard bottom longline vessels. Detailed analyses relating to 
the economic impacts of each alternative considered are provided in the 
final Amendment 1; a summary is provided here.
    The final actions for commercial management measures (i.e., the LCS 
complex classification, regional quotas, trimester seasons, MSY based 
quotas, and no minimum size) were designed to minimize economic impacts 
incurred on fishermen, while simultaneously enhancing equity among 
users groups, allowing healthy stocks to be managed at optimum yield, 
and allowing overfished stocks to rebuild. For the LCS complex 
classification, NMFS considered four alternatives: (1) Ridgeback/non-
ridgeback groups with different closure dates (no action); (2) 
ridgeback/non-ridgeback groups with the same closure date; (3) 
aggregate LCS complex (final action); and (4) species-specific groups. 
Compared with the other alternatives considered, aggregating the LCS 
complex may reduce costs associated with the lengthening of trips 
(i.e., fuel, bait, and ice) due to sorting inefficiencies and simplify 
compliance and reporting requirements. The other classification 
alternatives, in conjunction with the preferred alternative for the 
quota basis alternatives, could result in larger quotas; however, those 
classification alternatives were rejected because they could increase 
confusion in the fishery and, inconsistent with the Magnuson-Stevens 
Act, may result in delays for LCS to rebuild.
    For quota administration, NMFS considered five alternatives: (1) 
Semi-annual seasons (no action); (2) no regional quotas (no action); 
(3) regional quotas (final action); (4) trimester seasons (final 
action); and (5) quarterly seasons. Implementation of regional quotas 
is not anticipated to result in any changes to economic benefits or 
costs because it maintains current fishing patterns based on dealer 
reports and is anticipated to enhance equity among user regions. 
Trimester seasons would spread open seasons out more evenly over the 
calendar year and could, in the long-term, result in greater economic 
stability for fishermen and associated communities because the amount 
of time between open and closed seasons would likely be reduced. Thus, 
in the long-term, the combination of regional quotas and trimester 
seasons could help minimize any economic impacts caused by other final 
actions. While maintaining the semiannual seasons and no regional 
quotas would have no negative economic impacts in the long-or short-
term, these alternatives would have no positive economic benefits 
either.
    NMFS considered a wide range of quotas that resulted from the 
combination of the four LCS complex classification alternatives and the 
three quota basis alternatives which included: (1) Quota basis from the 
1999 HMS FMP (no action); quota based on MSY (final action); and (3) 
quota based on average landings for past three years. The economic 
impacts of the quota basis alternatives vary depending on the 
classification alternatives, thus, the two issues are considered 
together. Specifically, NMFS evaluated seven different commercial 
quotas for LCS (ranging from 816 mt dw and 2,559 mt dw) and three 
different commercial quotas for SCS (ranging from 300 mt dw to 454 mt 
dw). NMFS carefully considered the results of the 2002 stock 
assessments for LCS and SCS in evaluating possible quotas. The final 
action alternatives (quota based on MSY

[[Page 74779]]

and aggregating the LCS complex) will implement commercial quota levels 
of 1,017 mt dw for the LCS aggregate and 454 mt dw for the SCS 
aggregate, resulting in a 21-percent reduction in LCS quota and a 10-
percent increase in SCS quota, respectively, from the baseline quotas 
outlined in Amendment 1. While combinations of other alternatives could 
result in increased quotas for LCS, those combinations were rejected 
because they are likely to result in rebuilding delays for the LCS 
stock, which is inconsistent with the Magnuson-Stevens Act. Moreover, 
economic impacts could be incurred in the fishery over the long-term 
should LCS stocks continue to decline.
    NMFS considered six commercial minimum size alternatives: a 4.5 ft 
FL for ridgeback LCS (no action), no minimum size (final action), and 
four other alternatives with varying minimum size requirements. This 
final rule eliminates the current commercial minimum size, thus 
relieving a restriction that would impose negative economic impacts on 
the commercial shark fishery. The other alternatives would have imposed 
varying minimum sizes and were rejected because they would have had 
greater economic impacts and because other alternatives that protect 
juvenile sharks, as recommended in the stock assessment, are being 
implemented in this rule. Given that the current minimum size for 
commercial fishery has never been implemented due to litigation, NMFS 
does not anticipate any significant changes in economic benefits or 
costs from this final action.
    Similar to the final actions for commercial quotas, the final 
action alternatives for recreational retention (i.e., existing limits 
plus one bonnethead) and minimum size limits (i.e., existing size 
limits plus no minimum size for bonnethead) were designed to minimize 
the economic impacts on recreational fishermen, while simultaneously 
allowing healthy stocks to be managed at optimum yield and overfished 
stocks to rebuild. NMFS considered seven recreational retention limits 
including: (1) One shark per vessel per trip plus one Atlantic 
sharpnose shark per person (no action); (2) one shark per vessel per 
trip plus one Atlantic sharpnose and one bonnethead shark per person 
per trip (final action); (3) no limit; (4) catch and release only; and 
(5) other retention limits. Since the final retention allows the 
additional retention of bonnethead sharks, this alternative may 
increase revenues to charter/headboats and other small entities above 
the no action and catch and release only alternatives. Even though 
other alternatives were considered, such as no retention limit, that 
might further minimize economic impacts, they were rejected because 
they do not meet fishery management plan goals and objectives including 
rebuilding overfished LCS and preventing overfishing of Atlantic 
sharks.
    NMFS considered six size limit alternatives including: (1) 4.5 ft 
FL for all sharks and no size limit for Atlantic sharpnose sharks (no 
action); (2) 4.5 ft FL for all sharks and no size limit for Atlantic 
sharpnose and bonnethead sharks (final action); and (3) various other 
size limits ranging from no size limit to different size limits 
depending on the species and the area fished. The final size limit 
alternative takes into account the fact that bonnethead sharks do not 
reach the minimum size currently in place and simplifies compliance for 
small entities with the final retention limits for bonnethead sharks. 
The final size limit alternative is anticipated to increase the 
willingness to pay, angler consumer surplus, and current revenues to 
charter/headboat captains and other small entities who rely on the 
recreational shark fishery for income. Other recreational size limit 
alternatives were rejected because of economic and stock status 
concerns.
    The final action regarding recreational authorized gear limits 
fishermen in the recreational fishery to handline and rod and reel and 
addresses the need for NMFS to clarify which gear types are authorized 
specifically for recreational fishing activities. Most recreational HMS 
fishermen already use handline as well as rod and reel in the fishery. 
As such, there are no anticipated economic costs or benefits associated 
with implementation of the final action. The no action alternative 
would have no economic costs but was rejected because it is not 
consistent with other HMS fisheries and because other, more commercial 
gears, have higher post-release mortality rates, which could delay 
rebuilding of LCS. No other alternatives were considered because 
handline and rod and reel are the only gears typically used for 
recreational fishing for sharks.
    The final action to remove the deepwater and other sharks from the 
management unit seeks to simplify compliance and reporting requirements 
under the final rule for small entities. No economic costs are 
anticipated with from this alternative or from the no action 
alternative.
    The final action that retains the current 19 prohibited species and 
establishes a criteria for the addition/removal of other species to/
from the prohibited species group, also simplifies compliance and 
reporting requirements. Given the possibility that recreationally or 
commercially valuable species may either be added/removed from the 
prohibited species group, it is possible that economic impacts/benefits 
would be experienced by small entities. While removing or adding sharks 
to the prohibited list could have economic impacts, maintaining the 
status quo while establishing a process to add or remove, should not 
have economic impacts on a substantial numbers of small entities. Some 
of the other alternatives considered (returning to five prohibited 
species, adding finetooth sharks, or removing dusky sharks) could have 
varying positive or negative economic impacts. These alternatives were 
rejected because they could delay rebuilding of LCS, inconsistent with 
Magnuson-Stevens Act, and could result in long-term negative economic 
impacts if stocks decline further. The other alternative considered 
(adding deepwater and other sharks) was rejected for similar reasons to 
those that resulted in removing the group from the management unit.
    NMFS considered nine alternatives for bycatch reduction including a 
no action alternative, modifying authorized gears, limiting gears or 
soak times, and not allowing any discards. The final actions for 
bycatch reduction (i.e., install and activate VMS, obtain and use 
release equipment, use non-stainless steel corrodible hooks, and move 1 
nmi after an interaction with a protected species) were designed to 
minimize the economic impacts on fishermen, while simultaneously 
promoting bycatch reduction of protected species in shark fisheries. 
Installation of VMS units could result in economic impacts to small 
entities in the short-term. However, in the long-term, this alternative 
could result in increased revenues by preventing more burdensome 
regulations and allowing more fishing time. Additionally, bottom 
longline vessels would be able to traverse the closed area, while 
gillnet vessels may require less observer coverage. No other 
alternatives are available at this time that are as effective at 
enforcing closed areas.
    Under the VMS requirement approximately five gillnet shark fishing 
vessels and approximately eight directed category bottom longline shark 
fishing vessels will need to install VMS units. Requiring VMS for only 
a portion of the shark fishing fleet, minimizes the economic impact on 
the remainder of the fleet. Economic analyses of the impacts associated 
with VMS requirements on small entities indicate

[[Page 74780]]

that the average gross revenue by permit holder, during the first year 
of implementation, will be reduced by nine percent. For every year 
thereafter, economic analyses on small entities indicate that the 
average gross revenue by permit holder will be reduced by two percent. 
As noted above, to minimize economic impacts, NMFS is delaying the 
effective date of this requirement and will, in the future, type 
approve VMS units for use in the Atlantic shark fisheries.
    The final alternative regarding release equipment, corrodible 
hooks, and moving after an interaction with a protected species 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. Although many shark fishermen may 
already use non-stainless steel corrodible hooks, this may increase the 
financial burden on fishermen who will have to purchase new hooks. The 
requirement to move one nautical mile after an interaction with a 
marine mammal, sea turtle, or sawfish 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, sea turtles, 
or protected species have been observed caught, NMFS does not believe 
that this requirement would affect more than a few trips for all 
vessels combined, each year.
    Because the no action alternative does not modify the existing 
regulations, this alternative is not expected to have any substantive 
economic impacts. However, this alternative also does not reduce 
bycatch to the extent practicable as required by the Magnuson-Stevens 
Act. Some of the other alternatives considered (banning gillnet gear or 
allowing only strikenet gear) could have significant economic impacts 
and put some vessels out of business. While these alternatives would 
reduce bycatch, NMFS has made a commitment to consider other, less 
burdensome alternatives in a future rulemaking. The alternative that 
would limit the length of the mainline, limit the soak time, and 
require corrodible steel hooks could have various negative economic 
impacts depending on the fishing practices of the fishermen. These 
alternatives were rejected due to safety and enforcement concerns and 
due to a lack of sufficient information.
    NMFS is also finalizing a time/area closure for sandbar and dusky 
shark nursery and pupping areas offshore North Carolina during the 
winter fishery. This alternative is designed to reduce bycatch of 
neonate and juvenile sandbar sharks and prohibited dusky sharks by 92 
percent and 61 percent, respectively. This alternative is likely to 
have significant impacts on the small entities/vessel owners directly 
affected by the closure. As discussed above, NMFS has refined the size 
of the time/area closure in this final action, thus reducing the number 
of vessels affected from 13 to 8 and mitigating the economic impacts by 
$17,956 in total gross revenues for the small entities directly 
affected by the closure as compared with the original preferred 
alternative.
    For those vessels affected by the time/area closure, the closure 
would impose a reduction in catch and income from areas traditionally 
relied upon and affect fishing practices 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. 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 time/area 
closure will facilitate rebuilding of the LCS complex, thus providing 
for longer term economic stability, and it minimizes the economic 
impacts compared to the other larger time/area closure alternative 
considered. The no action/no closure alternative would not impose 
short-term economic impacts, but could have long-term economic impacts 
if LCS do not rebuild.
    None of the four alternatives considered for identifying EFH would 
affect small entities in any way that would complicate compliance and 
reporting requirements for EFH or result in significant economic 
impacts for small entities.
    For EFPs, NMFS considered a no action alternative and an 
alternative that would administratively separate EFPs for scientific 
research from display permits. Neither alternative is expected to 
affect small entities in any way that would complicate compliance and 
reporting requirements for EFPs or result in significant economic 
impacts for small entities.
    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 Paperwork Reduction Act (PRA) unless that 
collection of information displays a currently valid OMB control 
number.
    This final rule contains new collection-of-information requirements 
subject to review and approval by OMB under the PRA. The requirement 
for installation and activation of VMS aboard vessels with bottom 
longline or shark gillnet gear on board has been cleared by OMB under 
control number 0648-0483. The public reporting burden for this 
collection of information is estimated at: 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 final rule also contains collection-of-information 
requirements that have 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, 5 minutes for a 
catch report from a holder of a shark display permit, 30 minutes for a 
year-end report by a permit holder, 5 minutes for a notification 24 
hours prior to a fishing trip, and 2 minutes for the application of a 
Passive Integrated Responder tag at the time of collection of a shark.
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding these burden estimates, or any other aspect of 
these data collections, including suggestions for reducing the burden 
to NMFS and OMB (see ADDRESSES).
    These regulations are not expected to have an adverse impact on 
protected species under the ESA. A BiOp issued October 29, 2003, in 
response to the proposed rule for Amendment 1 concluded that the level 
of anticipated take in the Atlantic shark fishery is not likely to 
jeopardize the continued existence of endangered green, leatherback, 
and Kemp's ridley sea turtles, the endangered smalltooth sawfish, or 
the threatened loggerhead sea turtle. Furthermore, it concluded that 
the actions in the rule are not likely to adversely affect marine 
mammals.
    The species of sea turtles that are expected to be affected by the 
actions in this final rule are all highly migratory. NMFS believes that 
no individual members of any of the species are likely to be year-round 
residents of the action area. Individual animals will make migrations 
into nearshore waters as well as other areas of the North Atlantic

[[Page 74781]]

Ocean, Gulf of Mexico, and the Caribbean Sea. Therefore, the range-wide 
status of the affected species of sea turtles most accurately reflects 
the species' status within the action area. Sea turtles can be captured 
as a result of the use of bottom longlines, gillnets and rod and reel/
handline fishing gear. Captured turtles can be released alive uninjured 
or can be killed as a result of the interaction. Some turtles that are 
released alive from bottom longline gear may die later as a result of 
the ingestion of a hook, endangerment in the gear, or the trailing of 
gear that was not cut away prior to release.
    Smalltooth sawfish are not highly migratory species, although some 
large, mature individuals may engage in seasonal north/south movements. 
The U.S. Distinct Population Segment (DPS) of smalltooth sawfish is 
confined to only a small portion of the action area, mainly waters off 
Florida and possibly occasionally off Georgia. Only large, mature 
individuals are known to occur in the action area. Information is not 
available regarding how much time smalltooth sawfish of different sizes 
spend at different depths. Generally smaller (younger) animals are 
restricted to shallower waters, whereas large animals are believed to 
roam over a larger depth range. The smalltooth sawfish may only be 
present in the U.S. EEZ intermittently, spending the rest of their time 
in shallower waters. Based on this information, the range-wide status 
of smalltooth sawfish most accurately reflects the species' status 
within the action area. Smalltooth sawfish can also be captured as a 
result of the use of bottom longlines, gillnets and rod and reel/
handline. The October 2003 BiOp for Atlantic shark fisheries represents 
the first Federal fishery to undergo formal consultation for this 
species.
    In the bottom longline fishery a total of 43 sea turtles were 
observed caught from 1994 through 2002 based on 862 observed sets. Of 
the 43 sea turtles observed, 31 were loggerhead sea turtles of which 17 
were released alive. Another nine loggerheads were released in an 
unknown condition and five were released dead. Based on extrapolation 
of observer data and reported effort from the logbook data, the BiOp 
estimates that a total of 2,003 loggerhead sea turtles were taken in 
the shark bottom longline fishery from 1994 through 2002. An additional 
503 unidentified sea turtles were estimated to have been taken. On 
average, 222 loggerhead sea turtles and 56 unidentified sea turtles 
were taken annually during this time period in the shark bottom 
longline fishery. The BiOp estimates that approximately 123 loggerheads 
are killed per year on bottom longline gear.
    Four of the 43 observed sea turtles taken in the bottom longline 
fishery were leatherback sea turtles; three of these were released in 
an unknown condition and one was released dead. Based on these 
observations, the BiOp estimates that 269 leatherback sea turtles were 
taken in the shark bottom longline fishery during 1994 through 2002. On 
average, approximately 30 leatherback sea turtles each year were taken 
by the shark bottom longline fishery during 1994 through 2002 and an 
estimated 17 leatherbacks were killed per year.
    Smalltooth sawfish have also been observed caught (seven known 
interactions, six released alive, one released in unknown condition) in 
shark bottom longline fisheries from 1994 through 2002. Based on 
extrapolation of these observations, a total of 466 sawfish are 
estimated to have been taken in this fishery from 1994 to 2002, 
resulting in an average of 52 takes per year. All of the sawfish takes 
observed, except for one, were released alive. Based on this 
information, NMFS expects no smalltooth sawfish will be killed on 
bottom longline gear as a result of the measures in this final rule 
over the next five years.
    In the shark gillnet fishery, loggerhead sea turtles are rarely 
caught. During the 1999 right whale calving season no loggerhead sea 
turtles were caught in this fishery. No loggerhead sea turtles were 
observed caught with strikenets during the 2000-2002 right whale 
calving seasons. However, three loggerhead sea turtles have been 
observed caught with drift gillnets during right whale calving season, 
one each year from 2000 to 2002. During the 2000 and 2001 non-right 
whale calving seasons, no loggerhead sea turtles were observed caught 
in gillnets fished in a strikenet method while one loggerhead sea 
turtle was observed caught and released alive in gillnets fished in a 
driftnet method. No loggerhead sea turtles were caught outside of the 
right whale calving season in 2002. Expanded take estimates for sea 
turtles in the shark drift gillnet fishery provides the following 
estimated takes of loggerhead sea turtles by year: 1999--none; 2000--
one mortality and 4.4 live takes; 2001--one live take; and 2002--1.7 
live takes.
    In the shark gillnet fishery, leatherback sea turtles are 
sporadically caught. During the 1999 right whale calving season, two 
leatherback sea turtles were caught in this fishery, and both were 
released alive. No leatherback sea turtles were observed caught with 
strikenets during the 2000-2002 right whale calving seasons. 
Leatherback sea turtles have also been observed caught with gillnets 
including fourteen in 2001 and two in 2002. NMFS temporarily closed the 
shark gillnet fishery (strikenetting was allowed) from March 9 to April 
9, 2001, due to the increased number of leatherback interactions that 
year (66 FR 15045, March 15, 2001). During the 2000 and 2001 non-right 
whale calving seasons, no leatherback sea turtles were observed caught 
in gillnets fished in strikenet or driftnet methods. No leatherback sea 
turtles were caught outside of the right whale calving season in 2002. 
The estimated takes of leatherback sea turtles by year were as follows: 
1999--none; 2000--none; 2001--two mortalities and 12 live takes; and 
2002--3.4 live takes.
    To date there has been only one observed catch of a smalltooth 
sawfish in shark gillnet fisheries. The sawfish was taken on June 25, 
2003, in a gillnet set off of southeast Florida and it was released 
alive. The set was characteristic of a typical drift gillnet set, with 
gear extending 30 to 40 feet deep in 50 to 60 feet of water. The 
previous absence of smalltooth sawfish incidental capture records is 
likely attributable to the relatively low effort in this fishery and 
the rarity of smalltooth sawfish, especially in Federal waters. These 
factors may result in little overlap of the species with the gear. The 
recently observed smalltooth sawfish was cut from the net and released 
alive with no visible injuries. This indicates that smalltooth sawfish 
can be removed safely if entangled gear is sacrificed.
    As discussed in the proposed action, gillnets are also used to 
``strikenet''. When strike gillnetting fishers target and encircle 
specific schools of sharks after visually detecting them (usually by 
spotter pilot). Given the large and or distinct morphology of 
smalltooth sawfish, this species would likely be detected visually, as 
well as distinguished from shark species, and thus avoided. This 
fishing method has also been shown to reduce potential encounters by 
limiting the time that gear is in the water. Strikenet sets are 
typically only one to two hours in contrast to six to 10 hours for each 
drift gillnet set. Endangered and threatened species, or protected 
marine mammals have never been observed taken in strikenet sets.
    Given the high rate of observer coverage in the shark gillnet 
fishery, NMFS believes that smalltooth sawfish takes in this fishery 
are very rare. The fact that there were no smalltooth sawfish caught 
during the year 2001, when 100 percent of the fishing effort

[[Page 74782]]

was observed, indicates that smalltooth sawfish takes (observed or 
total) most likely do not occur on annual basis.
    Recreational fishermen targeting sharks generally use bait and 
hook. Sea turtles are known to take baited hooks. NMFS has no data 
specifically showing that sea turtles are taken by recreational anglers 
fishing for sharks. Most recorded sea turtle captures by recreational 
fishermen occur off fishing piers where sea turtles are known to 
frequent due to lighting and the concentration of bait. There were no 
sea turtles caught during the June Gulf Coast Shark Census held each 
year between 1991 and 1999 (operating out of Sarasota) which happens 
offshore and not on fishing piers. The selected measures in Amendment 1 
pertain to recreational shark fishing in Federal waters. Based on the 
information above NMFS believes that the chances of a recreational 
shark fishermen catching a sea turtle in Federal waters is 
discountable.
    Smalltooth sawfish are known to be occasionally hooked with rod and 
reel and/or handline during recreational fishing. These captures occur 
most frequently in state waters in the vicinity of the Everglades 
National Park and Florida Bay, where the current population is 
concentrated. North of this area, the number of reported captures 
declines greatly. The National Park Service, Everglades National Park, 
monitors fishing activity and harvest in this area in part by 
conducting interviews with anglers and fishing guides at local boat 
ramps. These interviews indicate that the majority of anglers do not 
try to catch any particular kind of fish. Target species of the 
minority group that did try to catch a particular type, however, 
included snook, spotted sea trout, red drum, and tarpon. Thus the vast 
majority of incidental smalltooth sawfish captures are not from shark 
fishing.
    The only indication that smalltooth sawfish may be occasionally 
hooked by a fishermen targeting sharks stems from the June Gulf Coast 
Shark Census between 1991 and 1999. Five smalltooth sawfish were 
captured and released in 20,000 line hours of recreational fishing 
effort. The captures, however, were all from either inside the barrier 
islands or just offshore from barrier islands, along the southwest 
Florida coast between Cape Romano and Saint Petersburg; thus all within 
state waters.
    Given the overall scarcity of smalltooth sawfish encounters in 
state waters where this species is believed to occur in greater 
abundance and density, the chances of a smalltooth sawfish being 
encountered during recreational fishing in Federal waters are extremely 
rare. The MRFSS database has no records of smalltooth sawfish captured 
in Federal waters, let alone one during fishing targeting sharks. 
Therefore, NMFS believes that the chances of a recreational shark 
fisherman catching a smalltooth sawfish in Federal waters are 
discountable.
    The final action to reduce the LCS commercial quota from 1997-2002 
levels, resulting in a 45 percent reduction, is expected to reduce 
fishing effort for the shark bottom longline fishery. Effort reductions 
are not expected in the shark gillnet fishery because it primarily 
targets SCS, and drift gillnet fishing will not be eliminated by this 
final rule. The 2003 BiOp for the Atlantic shark fishery found that the 
reduction in bottom longline effort may result in a reduction of the 
number of sea turtle interactions. NMFS has no way of quantifying the 
effect on sea turtles at this time. Any such effort reductions will 
only reduce smalltooth sawfish interactions if effort reductions occur 
in the southern fishing areas where smalltooth sawfish are known to 
occur.
    Although the time/area closure of North Carolina is expected in 
part to reduce the bycatch of prohibited species such as the dusky 
shark, the 2003 BiOp found it may have the added benefit of reducing 
potential sea turtle interactions. This benefit depends however, on how 
much effort reduction actually results from this action. Most bottom 
longline fishermen tend to fish close to their home port, so if 
redistribution of effort does occur, the effort is expected to 
redistribute to areas adjacent to or seaward of the closure. Sea turtle 
interactions may occur in these areas as well, thus reduced sea turtle 
interactions may not be realized if effort is merely redistributed. The 
time/area closure occurs north of where smalltooth sawfish occur, thus 
will provide no benefit to smalltooth sawfish. Conversely, should 
effort redistribute to the southern fishing grounds, smalltooth sawfish 
interactions could potentially increase as a result of the time area 
closure. Based on the expected area of any effort redistribution, 
however, NMFS believes the time/area closure will have no smalltooth 
sawfish impacts.
    The requirement to have VMS on directed shark gillnet and bottom 
longline vessels will aid in enforcement of the time/area closure. 
Additionally, this measure could lead to improvements in effort data in 
this area which is used in estimating takes of protected species. Any 
such improvements however, would only potentially benefit sea turtles, 
as again this would be in areas outside the range of smalltooth 
sawfish.
    NMFS is not reducing the recreational bag limit but is working 
towards increasing compliance with existing regulations. NMFS is also 
restricting the authorized gear in the recreational fishery to handline 
and rod and reel. Post-release mortality of these gear types is lower 
than that of traditional commercial gears such as bottom longline or 
gillnet. Since these gears are presently not used in recreational 
fishing, little benefit to sea turtles and smalltooth sawfish is 
expected.
    Some of the regulations in this final rule were specifically 
designed to reduce, to the extent practicable, bycatch and bycatch 
mortality of sea turtles and marine mammals. These alternatives 
include: requiring the use of corrodible hooks, de-hooking devices 
(once a de-hooking device is approved), dipnets, and line cutters on 
bottom longline vessels (similar to the requirements for pelagic 
longline vessels); and requiring bottom longline vessels to move 1 nmi 
after an interaction with a protected species (also similar to the 
requirement for pelagic longliners). The 2003 BiOp found these measures 
are expected to have a positive impact on protected species. 
Additionally, the 2003 BiOp concluded that non-stainless steel 
corrodible hooks for the directed shark bottom longline fishery will 
minimize impacts to sea turtles and smalltooth sawfish if they are 
accidentally hooked. De-hooking equipment should also safely release 
incidentally caught sea turtles.
    Based on observer data, observed and self-reported effort data, and 
the distribution and density of sea turtles in the action area, NMFS 
anticipates that the continued prosecution of the Atlantic shark 
fisheries may result in take of protected species. Currently available 
information on the relationship between sea turtles and sawfish and the 
Atlantic shark fishery indicates that injury and/or death of sea 
turtles and smalltooth sawfish is likely to occur. Therefore, pursuant 
to section 7(b)(4) of the ESA, the 2003 BiOp anticipates an actual 5-
year total incidental take for the Atlantic shark fishery of: (1) 172 
leatherback turtles, of which 88 will be lethal; (2) 1370 loggerhead 
turtles of which 755 will be lethal; (3) 30 total in any combination of 
hawksbill, green, and Kemp's ridley, with 5 lethal takes per species; 
and (4) 261 smalltooth sawfish, of which no lethal takes are expected. 
The above take estimates were further broken down by gear type. These 
limits

[[Page 74783]]

represent the number of total estimated takes, based on observed takes 
extrapolated across total effort levels for this fishery. Each gear 
type must be considered independently, and if the actual calculated 
incidental captures or mortalities exceed the amount estimated below 
for a gear type, the 2003 BiOp specifies that formal consultation for 
that gear type must be re-initiated immediately.
    The AA has determined that the list of actions in this rule, which 
seek to rebuild the LCS complex, prevent overfishing of the LCS 
complex, and prevent overfishing of other species of sharks, are 
consistent to the maximum extent practicable with the enforceable 
policies of the coastal states in the Atlantic, Gulf of Mexico, and 
Caribbean that have Federally approved coastal zone management programs 
under the CZMA. NMFS asked for states' concurrence with this 
determination during the proposed rule stage. Ten states replied 
affirmatively regarding the consistency determination. NMFS presumes 
that the remaining states that have not yet responded also concur with 
the determination. One state, Georgia, replied that allowing the use of 
gillnets, including the proposed strikenet method, is not consistent 
with the State's CZMA program.
    The State of Georgia objects to the consistency determination due 
to the continuing operation of the shark gillnet fishery in Federal 
waters impacting resources shared by adjacent state waters. 
Specifically, the State of Georgia raises a concern regarding the 
impact of the shark gillnet fishery on sea turtles, marine mammals, and 
sport fish. NMFS acknowledges the concern raised; however, under the 
Magnuson-Stevens Act's (16 U.S.C. 1801 et seq.) National Standards, the 
Agency must, among other things, base its actions upon the best 
scientific information available; implement conservation and management 
measures to prevent overfishing while achieving, on a continuing basis, 
the optimum yield from each fishery; and minimize bycatch and bycatch 
mortality to the extent practicable (16 U.S.C. 1851(a)(2), (1), and 
(9)).
    National Standard 2, which requires that management measures be 
based on the best scientific information available, would preclude a 
closure of the shark gillnet fishery in Federal waters, or a partial 
closure just off Georgia, in this action. At this time, there is 
insufficient information to support such management measures. Data 
currently available indicate relatively low rates of bycatch and 
bycatch mortality of protected species and other finfish in this 
fishery. Incidental capture of threatened and endangered species is 
regulated under the ESA. As discussed above, according to the October 
29, 2003, BiOp prepared pursuant to the ESA, there are relatively low 
rates of bycatch and bycatch mortality in the shark gillnet fishery. 
The BiOp, which incorporates the best scientific information available, 
did not conclude that continuation of the shark gillnet fishery would 
jeopardize any endangered or threatened resources and included a new 
incidental take statement for the fishery. Therefore, NMFS is not 
prohibiting the use of this gear at this time.
    In its decision to not ban gillnet gear, NMFS also considered other 
requirements of the Magnuson-Stevens Act, including but not limited to 
National Standards 1 and 9. Shark gillnets are the commercial gear that 
are used to primarily target SCS, a complex that is not, according to 
the latest SCS stock assessment, overfished. Based on the best 
scientific information available, this Amendment will manage the 
fishery for OY, consistent with National Standard 1, by preferring a 
quota level that would increase the SCS commercial quota from the level 
in the 1999 HMS FMP. Given that a quota increase is warranted under the 
stock assessment, closing the shark gillnet fishery in Federal waters 
would not achieve, on a continuing basis, the OY from the fishery.
    With regard to bycatch, this Amendment minimizes bycatch and 
bycatch mortality to the extent practicable, consistent with National 
Standard 9. While this final rule does not prohibit the use of gillnet 
gear, NMFS did consider an alternative that would allow only the 
strikenet method in the shark gillnet fishery and also a permanent 
closure of the fishery, which would make this rule fully consistent 
with Georgia's CZMA program. However, NMFS did not prefer either 
alternative, due to the lack of sufficient data and also taking into 
consideration the significant, negative social and economic impacts on 
the five vessels actively fishing in the shark gillnet fishery. 
Instead, this final rule will require all shark gillnet vessels to 
install and activate VMS during right whale calving season. In a future 
rulemaking, NMFS will examine additional gear modifications or other 
alternatives to reduce bycatch and bycatch mortality in this fishery. 
NMFS will also continue to work with existing take reduction teams and 
Fishery Management Councils to examine methods of reducing bycatch. 
Thus, NMFS finds that the final regulations implemented in the FMP 
Amendment are consistent with Georgia's Coastal Zone Management Program 
to the maximum extent practicable.
    Several measures in this final action (implementation of the 
commercial LCS and SCS quotas through regional quotas, removal of the 
commercial minimum size, and allowing recreational fishermen to retain 
one bonnethead shark per person per vessel with no minimum size) 
relieve restrictions. Currently, the Atlantic commercial shark fishery 
is operating under quotas established under an emergency rule extension 
that will expire on December 29, 2003 (68 FR 31983, May 29, 2003). The 
extension implements quotas based upon the 2002 LCS and SCS stock 
assessments and temporarily suspends a commercial minimum size and 
quotas from the 1999 HMS FMP, which were based upon a 1998 assessment. 
When the extension expires, the 1999 quotas and commercial minimum size 
will go back into effect. This final rule would increase the LCS and 
SCS quotas that would come into effect on December 30, 2003, with the 
expiration of the existing emergency rule. Specifically, the overall 
LCS quota would increase from 816 mt dw (1999 HMS FMP) to 1,017 mt dw 
and the SCS quota would increase from 359 mt dw (1999 HMS FMP) to 454 
mt dw, thus relieving a restriction by allowing more retention of fish. 
Removal of the commercial minimum size and changes to the recreational 
minimum size and retention limit would also relieve regulatory 
requirements. Because this regulation relieves requirements, as stated 
above, pursuant to 5 U.S.C. 553(d)(1), the 30-day delayed effectiveness 
period for the above management measures is not applicable and these 
provisions will become effective on December 30, 2003.
    In addition, there is good cause, pursuant to 5 U.S.C. 553(d)(3), 
to waive the 30-day delay in effectiveness for the commercial quotas 
and removal of the commercial minimum size. After reviewing peer 
reviews of the 1998 assessment, which were required as part of a court-
approved settlement agreement, NMFS determined that portions of that 
assessment did not constitute the best available science. The LCS and 
SCS quotas in this final action, which are based on the 2002 
assessments, must be effective by December 30, 2003, otherwise, quotas 
that are more restrictive and not based on the best available science 
will go into effect, which is inconsistent with National Standard 2 of 
the Magnuson-Stevens Act. If the commercial minimum size is not removed 
by December 30, 2003, fishermen may

[[Page 74784]]

incur additional fuel and supply costs in order to fish further 
offshore to target larger fish. During development of this final rule, 
NMFS provided many opportunities for public participation and made the 
FEIS for Amendment 1 available to the public for 30 days prior to 
making its final decision (68 FR 64621, November 14, 2003). Thus, 
members of the public were aware of what the rule was likely to 
contain. It would be contrary to the public interest to delay the 
implementation of these measures because of the economic impact on 
fishermen. Therefore, pursuant to 5 U.S.C. 553(d)(3), there is good 
cause to waive the delay in effectiveness for the commercial quotas and 
minimum size.

List of Subjects

50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

50 CFR Part 635

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

    Dated: December 17, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
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.

0
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. Gillnet
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

0
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.

0
4. In Sec.  635.2, in the definition of ``Management unit,'' paragraph 
(5) is revised, and new definitions for ``Display permit,'' and ``Mid-
Atlantic shark closed area,'' 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 HMS 
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 35[deg]41' N. lat. just south of 
Oregon Inlet, North Carolina, and connecting by straight lines the 
following coordinates in the order stated: 35[deg]41' N. lat., 
75[deg]25' W. long. proceeding due east to 35[deg]41' N. lat., 
74[deg]51' W. long.; then proceeding southeast to 35[deg]30' N. lat., 
74[deg]46' W. long.; then proceeding southwest, roughly following the 
55 fathom mark, to 33[deg]51' N. lat., 76[deg]24' W. long.; then 
proceeding due west to intersect the inner boundary of the U.S. EEZ at 
33[deg]51' N. lat., 77[deg]53' W. long. near Cape Fear, North Carolina.
* * * * *

0
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.

0
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

[[Page 74785]]

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 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  [Removed and Reserved]

0
7. Remove and reserve Sec.  635.16.
0
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. All sharks, except Atlantic sharpnose and bonnethead sharks, 
landed under the recreational retention limits specified at Sec.  
635.22(c) must be at least 54 inches (137 cm) FL.
* * * * *

0
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) and (e)(3)(vi) 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 between the mainline and the ocean bottom, and 
leaders (gangions) with hooks are on board. Removal of any one of these 
elements constitutes removal of bottom longline gear. Bottom longline 
vessels may have a limited number of floats and/or high flyers onboard 
for the purposes of marking the location of the gear but removal of 
these floats does not constitute 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 that any fish on board such a 
vessel were taken with bottom longline in the closed area.
    (1) Effective January 1, 2005, 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, sea turtle, or smalltooth sawfish 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 nmi (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, or smalltooth sawfish, as appropriate. If a 
smalltooth sawfish is caught, the fish should be kept in the water 
while maintaining water flow over the gills and examined for research 
tags and the line should be cut as close to the hook as possible.
    (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. The dehooking device should not 
be used to release smalltooth sawfish. 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. Note: This paragraph (d)(3)(ii) is not 
effective until further notification is published in the Federal 
Register.
    (e) * * *
    (3) * * *
    (i) No person may possess a shark in the EEZ taken from its 
management unit without a permit issued under Sec.  635.4. No person 
issued a shark LAP under Sec.  635.4 may possess a shark by any gear 
other than rod and reel, handline, bandit gear, longline, or gillnet. 
No person issued an HMS Angling permit or an HMS Charter/headboat 
permit under 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 
rod and reel, handline, bandit gear, longline, or gillnet if the vessel 
is not engaged in a for-hire fishing trip.
    (ii) No person may fish for sharks with a gillnet with a total 
length of 2.5 km or more. No person may have on board a vessel a 
gillnet with a total length of 2.5 km or more.
    (iii) 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 gillnet, the gillnet 
must remain attached to at least one vessel at one end, except during 
net checks.
* * * * *
    (vi) Vessel operators are required to conduct net checks every 0.5 
to 2 hours to look for and remove any sea turtles, marine mammals, or 
smalltooth sawfish. Smalltooth sawfish should not be removed from the 
water while being removed from the net.
* * * * *

0
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 from the management 
unit, which are listed in table 1(d) of appendix A to this part, may be 
retained. The recreational retention limit for sharks applies to any 
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 fishing trip.
* * * * *

0
11. In Sec.  635.27, paragraph (b) is revised to read as follows:

[[Page 74786]]

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 from the management unit, which are listed 
in table 1(d) of appendix A to this part, may be retained except as 
authorized under Sec.  635.32.
    (i) Fishing seasons. For the 2004 fishing year, the commercial 
quotas for large coastal sharks, small coastal sharks, and pelagic 
sharks will be split between two fishing seasons: January 1 through 
June 30 and July 1 through December 31. Starting on January 1, 2005, 
and for each following year, the commercial quotas for large coastal 
sharks, small coastal sharks, and pelagic sharks will be 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 and 
small coastal 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 
region north to the border between North Carolina and Virginia at 
roughly 36[deg]30' N. lat., including the waters surrounding the 
Caribbean. The North Atlantic region includes all waters north of the 
North Carolina and Virginia border at roughly 36[deg]30' N. lat.
    (iii) Large coastal sharks. The annual commercial quota for large 
coastal sharks is 1,017 mt dw, unless adjusted pursuant to 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 sharks is 454 mt dw, unless adjusted pursuant to 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.
    (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 
adjusted pursuant to 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.
* * * * *

0
12. 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.
    (2) When the fishing season quota for small coastal sharks or 
pelagic sharks specified in Sec.  635.27(b)(1) is reached for a 
particular region, or is projected to be reached, NMFS will file for 
publication with the Office of the Federal Register, 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 for the appropriate shark species group in that particular 
region is closed.
    (3) When the fishery for a shark species group in a particular 
region is closed, a fishing vessel, issued an Atlantic Shark LAP 
pursuant to Sec.  635.4, may not possess or sell a shark of that 
species group in that region, except under the conditions specified in 
Sec.  635.22 (a) and (c), and a shark dealer in that region, issued a 
permit pursuant to Sec.  635.4, may not purchase or receive a shark of 
that species group from a vessel issued an Atlantic Shark LAP, except 
that a permitted shark dealer or processor may possess sharks that were 
harvested, off-loaded, and sold, traded, or bartered, prior to the 
effective date of the regional closure and were held in storage. Under 
a regional closure for a shark species group, a shark dealer issued a 
permit pursuant to Sec.  635.4 may, in accordance with state 
regulations, purchase or receive a shark of that species group if the 
sharks were harvested, off-loaded, and sold, traded, or bartered from a 
vessel that fishes only in state waters and that has not been issued a 
Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant 
to Sec.  635.4.
* * * * *

0
13. In Sec.  635.32, paragraph (a) is revised; paragraphs (c)(2) and 
(c)(3) are removed; paragraphs (d) and (e) are redesignated as 
paragraphs (e) and (f), respectively; a new paragraph (d) is added; and 
the newly redesignated paragraphs (e) and (f) are revised 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

[[Page 74787]]

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 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.
    (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 an HMS in or from the Atlantic 
EEZ for the purposes of public display. A valid display permit must be 
on board the harvesting vessel, must be available when the fish is 
landed, must be available when the fish is transported to the display 
facility, and must be presented for inspection upon request of an 
authorized officer. A display permit is valid for the specific time, 
area, gear, and species specified on it. Species landed under a display 
permit shall be counted against the appropriate quota specified in 
Sec.  635.27 or as otherwise provided in the display permit.
    (3) To be eligible for a display permit, a person must provide all 
information concerning his or her identification, numbers by species of 
HMS 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) Collectors of HMS for public display must notify the local NMFS 
Office for Law Enforcement at least 24 hours, excluding weekends and 
holidays, prior to departing on a collection trip, regardless of 
whether the fishing activity will occur in or outside the EEZ, as to 
collection plans and location and the number of animals to be 
collected. In the event that a NMFS agent is not available, a message 
may be left.
    (5) All live HMS collected for public display are required to have 
either a conventional dart tag or a microchip Passive Integrated 
Transponder (PIT) tag applied by the collector at the time of the 
collection. Both types of tags will be supplied by NMFS. Conventional 
dart tags will be issued unless PIT tags are specifically requested in 
the permit application and their use approved by NMFS. Terms and 
conditions of the permit will address requirements associated with the 
use of the tags supplied on a case-by-case basis.
    (e) Applications and renewals. Application procedures shall be as 
indicated under Sec.  600.745(b)(2) of this chapter, except that NMFS 
may consolidate requests for the purpose of obtaining public comment. 
In such cases, NMFS may file with the Office of the Federal Register 
for publication notification on an annual or, as necessary, more 
frequent basis to report on previously authorized exempted fishing, 
scientific research, or public display activities and to solicit public 
comment on anticipated EFP, SRP, LOA, or public display permit 
requests. Applications for EFP, SRP, and public display permit renewals 
are required to include all reports specified in the applicant's 
previous EFP, SRP, or public display permit including the year-end 
report, all delinquent reports for EFPs, SRPs, and public display 
permits issued in prior years, and all other specified information, in 
order for the renewal application to be considered complete. In 
situations of delinquent reports, renewal applications will be deemed 
incomplete and a permit will not be issued under this section.
    (f) Terms and conditions. (1) Written reports on fishing activities 
and disposition of catch for all HMS either retained, discarded alive 
or dead, or tagged and released under a permit issued under this 
section, must be submitted to NMFS, at an address designated by NMFS, 
within 5 days of the fishing activity, without regard to whether the 
fishing activity occurs in or outside the EEZ. Also, an annual written 
summary report of all fishing activities and disposition of all fish 
captured under the permit must be submitted to NMFS, at an address 
designated by NMFS, within 30 days after the expiration date of the 
permit. NMFS will provide specific conditions and requirements as 
needed, consistent with the Fishery Management Plan for Atlantic Tunas, 
Swordfish and Sharks, in the permit. If an individual issued a Federal 
permit under this section captures no HMS in any given month, either in 
or outside the EEZ, a ``no-catch'' report must be submitted to NMFS 
within 5 days of the last day of that month.
    (2) Permit conditions regarding fishing activities, such as gear 
deployment, monitoring, or soak time, may be specified by NMFS if 
warranted, on a case-by-case basis.
    (3) NMFS may select for at-sea observer coverage any vessel issued 
a permit under this section. Selected vessels must comply with the 
requirements for observer accommodation and safety specified at 
Sec. Sec.  635.7, 600.725, and 600.746 of this chapter.
    14. 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

[[Page 74788]]

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.

0
15. 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 under the following circumstances:
    (1) Whenever the vessel is away from port with pelagic longline 
gear on board;
    (2) Whenever a vessel, issued a directed shark LAP, is away from 
port with bottom longline gear on board, is located between 33[deg]00' 
N. lat. and 36[deg]30' N. lat., and the mid-Atlantic shark closed area 
is closed to bottom longline fishing as specified in Sec.  
635.21(d)(1); or
    (3) Whenever a vessel, issued a directed shark LAP, is away from 
port with a gillnet on board during the right whale calving season 
specified in the Atlantic Large Whale Take Reduction Plan in Sec.  
229.32(f) of this title. Note: Paragraphs (a)(2) and (a)(3) of this 
section are not effective until further notification is published in 
the Federal Register.
    (4) 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 gillnet 
gear on board, for the purposes of this section, when gillnet, as 
defined in Sec.  600.10, 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 gillnet 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 continuing 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) Access. As a condition to obtaining a LAP for Atlantic 
swordfish, sharks, or tunas, all vessel owners or operators using 
pelagic or bottom longline or gillnet 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.
0
16. In Sec.  635.71, paragraphs (a)(1), (a)(2), (a)(7), (a)(14), 
(a)(17), (a)(18), (a)(23), (a)(26), (a)(34), (a)(37), (b)(7), (b)(8), 
(c)(1), (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, SRP, 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 gillnet gear on board the vessel as specified 
in Sec.  635.69.
* * * * *
    (17) Fish for Atlantic tunas or swordfish with a gillnet or possess 
Atlantic tunas or swordfish on board a vessel with a gillnet on board, 
as specified in Sec.  635.21 (b), (e)(1), and (e)(4)(ii).
    (18) Fail to retrieve fishing gear and move after an interaction 
with a protected species, 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 gillnet as specified in Sec.  635.21 (c), 
(d), or (e)(3).
* * * * *
    (26) Violate the terms and conditions or any provision of a permit 
issued under Sec. Sec.  635.4 or 635.32.
* * * * *
    (34) Fail to disengage any hooked or entangled sea turtle with the 
least harm possible to the sea turtle as specified at Sec.  635.21 
(c)(5) or (d)(3).
* * * * *
    (37) Fail to report to NMFS, at the number designated by NMFS, the 
incidental capture of listed whales with shark gillnet 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 such 
gear on board 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).

[[Page 74789]]

    (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. 03-31483 Filed 12-23-03; 8:45 am]
BILLING CODE 3510-22-P