[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Proposed Rules]
[Pages 73980-73987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24028]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 051202320-5320-01; I.D. 040605D]


Atlantic Highly Migratory Species; Commercial Shark Management 
Measures

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

ACTION: Petition for rulemaking; decision.

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SUMMARY: NMFS has decided not to initiate the rulemaking requested by 
the North Carolina Department of Environment and Natural Resources, 
Division of Marine Fisheries (Petitioner), to amend the current time/
area closure for Atlantic sharks off the Mid-Atlantic region. NMFS does 
not have any new information to support the Petitioner's proposal of a 
closure inside of 15 fathoms along the North Carolina coast nor the 
assertion that such a closure would still attain the management goal of 
protecting juvenile sandbar and prohibited dusky sharks.
    NMFS will consider new information concerning the impacts of the 
current time/area closure (which has been in place for one time period 
from January 1 to July 31, 2005) and the results of upcoming large 
coastal shark (LCS) and dusky shark stock assessments to determine 
whether changes to the time/area closure are appropriate. In addition, 
NMFS will monitor any changes to shark regulations by coastal states 
and will continue to work with the Atlantic States Marine Fisheries 
Commission (ASMFC) in terms of development of an interstate shark plan, 
which may warrant a review of existing Federal regulations and 
consideration of further changes to the time/area closure.

ADDRESSES: Copies of NMFS' decision on the North Carolina Department of 
Environment and Natural Resources, Division of Marine Fisheries' 
petition are available from Karyl Brewster-Geisz, Highly Migratory 
Species Management Division, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910; telephone 301-713-2347. Copies of NMFS' decision 
regarding the petition are also available on the internet at http://www.nmfs.noaa.gov/sfa/hms.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz or Margo Schulze-
Haugen by phone: 301-713-2347 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION:

Background

    In 2002, NMFS conducted an LCS stock assessment that was peer-
reviewed by three independent reviewers (67 FR 64098, October 17, 
2002). While the peer reviews indicated areas that could be improved, 
they concluded that the stock assessment constituted the best available 
science. Based on the results of this stock assessment and the status 
determination criteria in the 1999 Fishery Management Plan (FMP) for 
Atlantic Tunas, Swordfish, and Sharks, NMFS determined that the LCS 
complex was overfished and overfishing was occurring. NMFS also 
determined that sandbar sharks were not overfished and overfishing was 
occurring, and that blacktip sharks were fully rebuilt. In addition to 
providing information regarding the status of the stocks, the stock 
assessment noted, among other things, that a reduction in catches of 
LCS may be necessary to recover the complex as a whole to the biomass 
expected to yield maximum sustainable yield (BMSY); that reductions in 
catch of species other than sandbar and blacktip sharks appeared to be 
the most appropriate; that individual species are responding 
differently to exploitation; and that juvenile survival is the vital 
rate that most affects overall population growth rates, thus supporting 
the need to protect reproductive females and juveniles.
    The 2002 LCS stock assessment did not individually assess the 
status of dusky sharks. However, in the 1999 FMP, NMFS noted that dusky 
sharks are highly susceptible and vulnerable to overfishing. This 
vulnerability is due to several factors including: (1) their age of 
maturity is approximately 19 years (approximately 12 ft or 3.7 m FL); 
(2) they have few pups per litter (6 to 14 per litter); (3) they have a 
long gestation period (approximately 16 months); and (4) approximately 
82 percent of those caught in commercial fisheries are brought to the 
vessel dead, making dusky sharks highly susceptible to dying on 
longline gear. This vulnerability has resulted in this species being 
listed as a species of concern under the Endangered Species Act (ESA) 
since 1997, and in 1999, being placed on the prohibited species list 
(due to litigation, the dusky shark prohibition did not go into effect 
until mid-2000). NMFS continues to be concerned about all life stages 
for dusky sharks and is expecting a final dusky shark assessment to be 
released later this year.
    Shortly after the 2002 LCS stock assessment was released, NMFS 
began the process of amending the FMP for Atlantic Tunas, Swordfish, 
and Sharks (67 FR 69180, November 17, 2002). Consistent with the 1999 
FMP and the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), the objectives of Amendment 1 were, among other 
things, to implement management measures to rebuild the LCS complex 
that were based on the best available science, to amend the rebuilding 
timeframe based on the best available science given that the 1998 stock 
assessment, on which the previous rebuilding timeframe was based, was 
found to be faulty, and to review shark management measures, in 
general.
    During the Amendment 1 process, NMFS held seven scoping meetings in 
February and March 2003 (68 FR 3853, January 27, 2003), held six public 
hearings on draft Amendment 1 and the proposed rule (68 FR 45196, 
August 1, 2003, and 68 FR 54885, September 19, 2003), held one Advisory 
Panel meeting specific to draft Amendment 1 and the proposed rule (68 
FR 51560, August 27, 2003), attended four Regional Fishery Management 
Council meetings (New England, Mid-Atlantic, and two for the Gulf of 
Mexico), and attended one ASFMC meeting. In addition to the comments at 
the public hearings and Council meetings, NMFS received over 30 written 
comments on draft Amendment 1 and the proposed rule. The final rule 
published on December 24, 2003 (68 FR 74746). Among other things, final 
Amendment 1 and its final rule revised the LCS rebuilding timeframe to 
26 years, adjusted the LCS commercial quota, established trimester 
seasons and regional subquotas, removed the commercial minimum size, 
changed the recreational bag limit and minimum size, established a 
time/area closure off North Carolina, required line cutters and dipnets 
on bottom longline vessels, required vessel monitoring systems (VMS) on 
gillnet and bottom longline vessels during part of the year, and 
established criteria to use to modify the prohibited species list. 
Major changes from the proposed rule as a result of public comment 
included: delaying the effective date for the implementation of 
trimester seasons; a change in the reduction of the LCS

[[Page 73981]]

quota from 40 to 45 percent; a decision to maintain existing 
regulations for the gillnet fishery; and a reduction in the proposed 
time/area closure from approximately 38,200 to 4,490 nm\2\.
    As part of adjusting the commercial LCS quota in Amendment 1, NMFS 
also established a procedure to calculate the base commercial quota 
based on information from the stock assessment. Under this procedure, 
NMFS establishes the base commercial quota dependent on estimates of 
maximum sustainable yield (MSY) and what is needed to reach MSY, 
commercial landings (including landings from states), dead discards, 
and recreational harvest. This base quota is then split between the 
three different regions and three seasons. Before each season, NMFS 
adjusts the Federal shark quotas for each region based on the total 
landings reported by Federal dealers. These dealer reports include 
landings from both state and Federal waters.
    The time/area closure was implemented to reduce discards of 
prohibited dusky and juvenile sandbar sharks under the rebuilding plan 
for LCS. The location of the time/area closure is in an area off North 
Carolina that has also been identified as essential fish habitat (EFH) 
for both sandbar and dusky sharks and as a habitat area of particular 
concern (HAPC) for sandbar sharks. The HAPC serves as important nursery 
and pupping grounds in areas adjacent to Hatteras and Ocracoke Islands 
and offshore of those islands. Other areas identified as HAPCs for 
similar reasons, such as the mouth of Great Bay, NJ, lower and middle 
Delaware Bay, and lower Chesapeake Bay, MD, were not included as time/
area closures because they are predominantly in state waters and 
fishing effort is low in those areas. The HAPC off North Carolina is 
one of only four areas identified as an HAPC and is the only area that 
extends significantly into Federal waters (the HAPC in the Chesapeake 
Bay has a slight overlap with Federal waters near the mouth of the 
Bay).
    During the public comment period for draft Amendment 1, commenters 
stated, among other things, that most nursery grounds are in nearshore 
waters, that closing inshore of 20 fathoms should be enough to protect 
neonate and juvenile sharks, that only state waters should be closed to 
protect juvenile sharks, that using dusky shark data when fishermen 
targeted them for the area closure was unfair, and that the time period 
for the closure was too long. As a result of these comments, NMFS re-
analyzed the data in regard to the time/area closure including looking 
at the impacts of closing only waters inshore of 20 fathoms, reducing 
the time period, and considering dusky shark data only after they 
became prohibited. NMFS found that fishermen caught both dusky sharks 
and juvenile sandbar sharks at depths of up to 50 fathoms and that 
limiting the closure to depths inshore of 20 fathoms would greatly 
reduce the benefits of a time/area closure. NMFS also found that, of 
all the sharks observed in the fishery, the majority of juvenile 
sandbar sharks, all of the neonate sandbar sharks, and the majority of 
dusky sharks (all life stages) were caught in the time/area closure 
that was finalized. This time/area closure was first effective from 
January 1, 2005, to July 31, 2005.

The Petition

    On March 7, 2005, NMFS received a request from the North Carolina 
Department of Environment and Natural Resources, Division of Marine 
Fisheries (Petitioner), to initiate rulemaking for a regulatory 
amendment to 50 CFR 635.2 regarding the definition of the ``Mid-
Atlantic shark closed area.'' The Petitioner seeks rulemaking to reduce 
the current closed area by changing the boundary from 55 fathoms from 
January to July in the middle part of the state to only include waters 
out to 15 fathoms coastwide for North Carolina by January 1, 2006. The 
Petitioner stated that this action would allow North Carolina fishermen 
access to the larger sharks in deeper waters from 15 to 55 fathoms and 
minimize discards of juvenile and protected sharks to a reasonable 
extent. The Petitioner stated that the available data suggest that 
juvenile sharks occur predominately near shore. Thus, the Petitioner 
proposed that closing out to 15 fathoms year-round along the entire 
North Carolina coastline instead of out to 55 fathoms for the middle 
part of North Carolina would still attain the management goal of 
protecting juvenile sandbar and prohibited dusky sharks. The Petitioner 
believes that the offshore extent of the current closed area 
encompasses the primary shark fishing grounds off North Carolina and 
severely restricts access to the shark quota off North Carolina, 
particularly during the first trimester.
    The Petitioner also asserted that the current time/area closure off 
North Carolina is not justified based on available data and has been 
implemented in violation of at least three National Standards (e.g., 
4, 8, and 10) of the Magnuson-Stevens Act. The Petitioner 
noted that the proposed change could address the above concerns and 
have positive significant economic benefits to fishermen, dealers, and 
fishing communities in the South Atlantic.
    NMFS published a notice of receipt of the petition for rulemaking 
in the Federal Register (May 10, 2005, 70 FR 24494) and invited public 
comments for 60 days ending on July 11, 2005. NMFS received 18 letters, 
including letters from one Council, the state of North Carolina, 
commercial fishermen, commercial fisheries organizations, and other 
interested individuals. Summaries of and responses to comments are 
provided under the Public Comments section below.

Agency Decision

    After carefully considering the petition and all public comments, 
NMFS has decided not to initiate the requested rulemaking. Currently, 
NMFS does not have any new information to support the request by the 
Petitioner for a closure inside of 15 fathoms along the coast of North 
Carolina. The Petitioner has not submitted analyses to support their 
request. NMFS has already analyzed and rejected a closure out to 20 
fathoms in response to comment during the Amendment 1 process because 
many juvenile sandbar sharks and dusky sharks were caught out to the 55 
fathom line (see response to Comment 7). Without new information, NMFS 
has no basis to modify the existing time/area closure in the manner 
suggested by the Petitioner.
    There are a number of items that could warrant modification of the 
time/area closure within a few years. First, NMFS will be conducting a 
stock assessment for LCS starting this year (September 15, 2005, 70 FR 
54537). The results of this stock assessment are expected to be final 
in mid-2006. Second, NMFS expects a final dusky shark stock assessment 
to be released in early 2006. Third, because the time/area closure has 
now been in effect for one time period, NMFS can begin to examine the 
data and analyze the actual impacts of the closure, ecologically and 
economically. Pertinent, complete logbook data for the 2005 closure 
will be available in the summer of 2006. In addition, NMFS will analyze 
new, applicable data as it becomes available. Fourth, NMFS is working 
with the ASMFC to start work on an interstate coast-wide shark plan. If 
other states become more consistent with the Federal regulations, 
either through a coast-wide plan or on their own initiative, it is 
possible that the ecological benefits could warrant a review of 
existing Federal regulations, including the time/area closure. To note, 
the state of Florida is currently reviewing and the Commonwealth of

[[Page 73982]]

Virginia has currently modified their state regulations regarding 
sharks. Fifth, NMFS recently released a proposed rule that, among other 
things, would establish criteria to be considered when implementing or 
modifying time/area closures (70 FR 48804, August 19, 2005). This 
proposed rule should be final in 2006.
    Given the nature of the issues raised by the Petitioner and the 
lack of additional information supporting the petition, NMFS believes 
that the results of the first three items above will provide valuable 
information when considering a modification to the existing time/area 
closure. Additionally, NMFS will continue to work with the ASMFC and/or 
individual states regarding consistent shark regulations and management 
measures. NMFS also encourages the Petitioner to work with NMFS 
scientists and industry in pursuing cooperative research on reducing 
bycatch of juvenile and sub-adult sandbar and dusky sharks. Results 
from such studies have been critical to providing alternate fishing 
practices in other areas that maintain target catch while also reducing 
bycatch.

Response to Comments

    During the public comment period, individuals and groups provided 
comments on NMFS' notice in the Federal Register on the receipt of a 
petition for rulemaking by the Petitioner. Comments were sent via 
letter, FAX, and E-mail. The comments are summarized below, together 
with NMFS' responses. The comments and responses are categorized by 
major subject headings.

1. Observer Program

    Comment 1: Commenters indicated that while the information during 
the mid and late 1990s provides excellent coverage of the fishery, the 
observer program has operated sporadically since 2000. In addition, 
commenters noted that the Federal Register notice stated that the time/
area closure was based on observer data. The commenters felt that this 
statement was misleading, and that NMFS selectively examined a shorter 
time period of observer data from 2001 to 2002, which is less extensive 
than the earlier data in terms of geography and sample size. The 
commenters felt the Agency would have drawn a different conclusion and 
made more acceptable recommendations if it had used all available 
observer data.
    Response: The observer program began in 1994, as a voluntary 
research program under which observers went to the docks and went on 
vessels that were willing to take them. Vessels cooperated with this 
program for the first few years; however, this type of program did not 
necessarily result in coverage that was representative of all vessels 
fishing. By the late 1990s, because of changing management measures 
based in part on observer data, the number of vessels willing to take 
an observer declined, and NMFS had concerns regarding the quality of 
the observer data and how representative the data was becoming. In 
January 2002, in order to obtain high-quality representative data, NMFS 
made participation in the observer program mandatory, and vessels which 
recorded past landings were selected to carry observers on a random 
basis. Thus, NMFS believes that the quality of information obtained 
from the observer program has improved over time.
    In examining the current time/area closure, NMFS did not 
selectively examine observer data from 2001 to 2002, but rather, 
examined the entire observer timeframe through 2002. During the public 
comment period for draft Amendment 1, fishermen commented that NMFS 
should not use dusky shark data before dusky sharks became a prohibited 
species in 2000. Fishermen stated that they used to target dusky sharks 
and that they should not be penalized for targeting them before they 
were prohibited. In response to their comments, NMFS examined the 
shorter, as well as the longer, timeframes in final Amendment 1.
    For sandbar sharks, the final Amendment examined only the longer 
timeframe (1994 to 2002) because sandbar sharks have been an allowed 
species since 1994. According to observer data from 1994 to 2002, 
12,445 sandbar sharks were observed in the fishery as a whole and 6,755 
were caught in the final time/area closure. Of those caught in the 
final time/area closure, 4,149 (61 percent) were neonates and 
juveniles. All neonate sandbar sharks and 81 percent of all juvenile 
sandbar sharks observed for the entire fishery (i.e., all of the 
Atlantic and Gulf of Mexico) were encompassed by the final time/area 
closure.
    For dusky sharks, using the shorter timeframe (2001 to 2002), only 
68 sharks were observed in the final time/area closure. However, this 
observed catch of dusky sharks remained high (62 percent) in comparison 
to the rest of the Atlantic and Gulf of Mexico. Using the longer 
timeframe (1994 to 2002), 1,392 dusky sharks were observed caught in 
the final time/area closure (79 percent), of which 92 percent were 
neonates or juveniles. Only 292 were observed caught in the Atlantic 
outside the time/area closure. These numbers reflect catches of dusky 
sharks in Federal waters only.
    Comment 2: The observer program was biased because North Carolina 
was one of the few states helping with data prior to the mandatory 
observer program. Therefore, most of the data were collected from this 
area, skewing the data.
    Response: When the observer program first started in 1994, the 
observers focused on states known to land a lot of sharks. These states 
included North Carolina and Florida. Over time, the observers included 
other states; however, as reflected in landing reports and permit 
holders, North Carolina and Florida continued to be major centers of 
shark fishing. Since the observer program became mandatory in 2002, the 
number of vessels selected from each state has been based on prior 
year's landings. This allows coverage to be representative of fishing 
effort.
    Comment 3: North Carolina fishermen are forced to float gear for 
LCS during the summer season when 85 to 90 percent of all catches in 
this season are adult or, at the very minimum, sub-adults. Juvenile 
sharks migrate north during the summer; they are not in the time/area 
closure during the summer. In addition, by making fishermen fish 
outside of 50 fathoms to 85 fathoms, NMFS is forcing them to kill more 
dusky sharks since they are predominately in 50 to 85 fathoms.
    Response: The observer data used in Amendment 1 indicate that dusky 
and sandbar sharks are caught on bottom longline gear in the time/area 
closure from January through July. The number of sharks caught in the 
closed area after July are relatively low; thus, NMFS did not extend 
the time/area closure past July. During Amendment 1, NMFS did not 
examine pelagic longline data since LCS are generally not caught in 
large numbers on pelagic longline gear compared with bottom longline 
gear. However, now that the time/area closure has been in effect from 
January through July 2005, NMFS can examine the impacts of the time/
area closure on fishermen who use bottom longline gear as well as on 
fishermen who use pelagic longline gear, including their discard rates 
of dusky sharks.

2. Stock Assessments

    Comment 4: Commenters stated that the status of the dusky sharks is 
unknown because there has been no stock assessment on that species. 
Commenters also noted that the peer-reviewed stock assessment of the 
sandbar shark population indicated that the status has improved and 
that no reduction in instantaneous fishing

[[Page 73983]]

mortality (F) appears necessary for sandbar sharks to achieve BMSY. 
Commenters indicated that, after reviewing the 2002 stock assessment, 
they found no definitive evidence that supports the NMFS' assertion 
that the LCS complex is overfished or that overfishing is occurring. In 
addition, commenters noted that peer reviewers of the 2002 LCS stock 
assessment were concerned about applying the results to the LCS complex 
as a whole. Given these results, commenters stated that while taking a 
precautionary approach in the face of uncertainty is prudent, NMFS took 
the precautionary approach to the extreme.
    Response: As noted above, NMFS is concerned about the status of 
dusky sharks for a number of reasons, including its life history and 
susceptibility to fishing gear. A stock assessment for dusky sharks is 
anticipated for early 2006.
    As for sandbar sharks, while the 2002 stock assessment indicates 
that sandbar sharks are no longer overfished, overfishing is occurring 
and, per the 1999 FMP, their status has not yet reached a stage where 
they can be called ``rebuilt.'' With regard to the complex as a whole, 
results of the 2002 LCS stock assessment met the overfishing and 
overfished criteria in the 1999 FMP. These results indicate that, while 
the stock status had improved since the 1998 stock assessment, the 
fishing mortality level was not sustainable. The details and point 
estimates of the different models used in the 2002 LCS stock assessment 
are given in Table 3.1 and Table 3.2 of the 2002 Emergency Rule to 
Implement Management Measures in the Atlantic Shark Fisheries 
Consistent with the 2002 Stock Assessments. As described in that 
document, the majority of the models indicated that the resource (the 
LCS complex) is overfished. Even in the models where the resource is 
not overfished, the models indicate that the rebuilding target biomass 
has not been met.
    In addition, the LCS assessment was peer reviewed pursuant to a 
settlement agreement in shark litigation pending at that time. The 
overall conclusions of these reviews were that the stock assessment was 
state-of-the-art and a scientifically rigorous body of work that used 
the best scientific information available. The peer reviewers generally 
agreed that, while management measures taken as of 2002 may have halted 
the decline in these stocks, current exploitation rates (based on the 
stock assessment) would not stabilize them at, or allow them to rebuild 
to, MSY levels. The peer reviewers noted that ``inference by 
subtraction'' needs to be examined and NMFS intends to examine options 
to address this concern at the upcoming LCS assessment. While there was 
concern over this inference, one peer reviewer also noted that 
``Whether the conclusions from the LCS complex assessment provide 
sufficient information on which to take management action depends on 
the level of risk one is willing to accept. It should be noted that 
many shark species have low productivity and are long-lived, so that 
failure to take action could result in long-term depletion of some 
species.'' Another peer reviewer indicated that for the LCS group, 
reductions in the total allowable catch for species other than sandbar 
and blacktip should be considered, and that for sandbar and other 
sharks, further reductions in fishing related mortalities should be 
achieved through the decrease of bycatch mortality. This, along with 
the rest of that review, the comments of the other reviewers, the stock 
assessment itself, and the status determination criteria outlined in 
the 1999 FMP, led NMFS to determine that the LCS complex has been 
exploited beyond sustainable rates, with populations at or below levels 
required to sustain MSY. NMFS does not believe the suite of measures in 
Amendment 1, including the existing time/area closure, are extreme.
    In order to reduce bycatch of dusky and sandbar sharks, NMFS opted 
to close a specific area to protect a known nursery ground of these 
species. This is also in accordance with the 2002 stock assessment 
which recommends protections of reproductive females and juveniles. As 
noted above, the closure area should reduce dusky shark catch by 79 
percent, and neonate and juvenile sandbar shark catch by 61 percent. In 
addition, the area off North Carolina is the only area where a large 
portion of a designated HAPC enters Federal waters. Thus, NMFS believed 
that closing an area that included a HAPC to protect juvenile sandbar 
sharks was warranted to reduce fishing mortality without increasing 
bycatch.
    Comment 5: Commenters stated that one peer reviewer indicated that 
the 2002 shark evaluation workshop (SEW) report could not be judged in 
terms of scientific findings and management recommendations.
    Response: NMFS believes that this remark was taken out of context; 
it was made in regard to the description of the way the 2002 stock 
assessment was completed and the statement of work for the review. The 
2002 stock assessment was conducted in two parts. The first part 
included a meeting to discuss the data, possible models, and underlying 
assumptions. This was summarized and published as the ``Final Meeting 
Report of the 2002 Shark Evaluation Workshop.'' The second part was the 
actual assessment where the data and models were run, titled the 
``Stock Assessment of Large Coastal Sharks in the U.S. Atlantic and 
Gulf of Mexico.'' Pursuant to a settlement agreement in litigation 
pending at that time, the statement of work asked the reviewers to 
review the SEW report in terms of scientific findings and management 
recommendations. There were no such findings or recommendations in the 
2002 SEW Final meeting report; rather, all findings and recommendations 
were in the 2002 stock assessment. Thus, the peer reviewer was 
clarifying the documents that he was reviewing for the purposes of the 
peer review. NMFS believes that this particular remark was not a 
comment on the scientific merits of the 2002 stock assessment results.
    Comment 6: Blacktip and sandbar sharks are the dominant species 
taken in the fishery. Managing by the least common denominator is 
problematic. The stock assessment recommends managing on a more 
species-specific basis.
    Response: As stated in Amendment 1, NMFS does not have the 
information necessary yet to manage sharks on a species-specific basis. 
Until fishermen and dealers report on a species-specific basis more 
consistently (currently about 20 percent of LCS landings are 
unclassified despite regulations requiring LCS species-specific 
reporting) and until NMFS has reliable scientific evidence that 
fishermen can target certain species of sharks without substantial 
bycatch or bycatch mortality of other shark species, NMFS believes that 
establishing and enforcing species-specific quotas is not feasible. If 
the fishermen do not identify sharks correctly (and some fishermen have 
commented that they cannot identify all species of sharks), then having 
species-specific quotas would not be effective at preventing 
overfishing on depleted species while allowing increased fishing on 
healthy or rebuilt species. Furthermore, if fishermen cannot reliably 
target sandbar or blacktip sharks without catching and discarding a 
significant number of other sharks (e.g., dusky sharks), then having 
species-specific quotas may still result in fishery closures when one 
of the quotas is reached.

3. Amending Time/area Closure to the 15-fathom Line

    Comment 7: Commenters indicated that a 1996 observer report 
concluded

[[Page 73984]]

that the area inshore of 15 fathoms should be closed to protect 
juvenile sharks and prohibited dusky sharks that occur in the region.
    Response: The 1996 observer report referenced is the final report 
of the Marine Fisheries Initiative (MARFIN) study (NA57FF0286) 
published by Branstetter, 1997. The commenters also refer, through the 
1996 observer report, to Musick et al., 1993. The 1996 observer report 
notes that small sandbar sharks are less than 120 cm fork length (FL). 
However, the 1996 observer report also notes that male sandbar sharks 
reach maturity around 142 cm FL (170 cm total length [TL]) and females 
at < 150 cm FL (180 cm TL). Therefore, the 1996 study's recommendations 
relative to 120 cm FL would not have protected a substantial number of 
juveniles and sub-adults. Many of the figures in the 1996 observer 
report (e.g., Figures 9, 10, 11, 12, and 17) indicate that large 
numbers of juvenile sandbar sharks were caught off North Carolina in 
depths greater than 10 fathoms. While these figures describe the data 
in terms of less than or equal to 10 fathoms or greater than 10 
fathoms, the 1996 observer report recommends in the text that 15 
fathoms be used rather than 10 fathoms. This recommendation is due to 
one year (1996) where numerous small sandbar sharks (less than 120 cm 
FL) and small dusky sharks (less than 140 cm FL) were caught between 10 
and 15 fathoms and few sharks were taken inshore of 10 fathoms.
    The 1996 observer report also notes that dusky sharks comprised 
about ten percent of the catch in North Carolina waters, and consisted 
of two general size classes: young juveniles and sub-adults/adults. 
Figure 17 indicated that many of these dusky sharks are caught in 
waters greater than 10 fathoms. This and the text regarding small dusky 
sharks being caught out to 15 fathoms indicate that a 15-fathom 
boundary could allow many juveniles and sub-adults to be caught. 
Additionally, in the case of dusky sharks, NMFS is trying to reduce 
fishing mortality on all life stages (neonates, juvenile, and adults), 
not just juveniles.
    Furthermore, as a result of public comment received on Amendment 1, 
NMFS examined the data to assess the ecological benefit of a closure 
out to only 20 fathoms. NMFS found that numerous juvenile sandbar 
sharks and dusky sharks were caught outside the 20 fathom line; many 
were caught at the 55 fathom line. As outlined in the response to 
Comment 15 under ``Time/Area Closure Comments'' in Amendment 1, NMFS 
included a buffer of approximately two miles to the seaward boundary of 
the time/area closure so that it extended to 60 to 80 fathoms. NMFS 
made this same data available to the state of North Carolina to 
analyze. No new interpretations of this data or analyses by the state 
of North Carolina have been presented to NMFS to date. Based on NMFS' 
previous analysis of a closure out to 20 fathoms, as requested by 
public comment on Amendment 1, NMFS believes that a large number of 
juvenile sandbar and dusky sharks would be caught outside of 15 
fathoms.
    Comment 8: One commenter questions why all dusky shark life stages 
were included when selecting the seaward boundary of the time/area 
closure.
    Response: NMFS is concerned about all life stages of dusky shark, 
not just juvenile stages, because this species is highly susceptible 
and vulnerable to overfishing because of its life history traits. The 
dusky shark is currently listed as a species of concern under the ESA. 
A dusky shark stock assessment is currently underway. The area closed 
off North Carolina has most of the observed dusky shark catches for the 
entire bottom longline fishery.
    Comment 9: A commenter asked if a quota reduction would have given 
the same result without having to establish the time/area closure off 
North Carolina.
    Response: The 2002 stock assessment indicates that reductions in 
fishing effort and mortality are needed for the biomass to reach MSY. 
In Amendment 1, NMFS determined that it would need to reduce the catch 
by greater than 50 percent in order to rebuild LCS. In addition, the 
stock assessment recommended the protection of reproductive females and 
juveniles.
    However, because Amendment 1 was implementing a number of 
regulations that could reduce fishing mortality including the time/area 
closure and gear restrictions, NMFS felt that reducing the catch by 45 
percent, and improving compliance with the regulations including the 
recreational regulations would be sufficient to rebuild the stock 
within the rebuilding timeframe. In addition, because the time/area 
closure off North Carolina is an important nursery area for dusky and 
sandbar sharks, protection of these species in this area would only be 
accomplished through a closure rather than an overall reduction in LCS 
quota.
    Comment 10: One commenter stated that to be excluded inside of 15 
fathoms in the summer serves no purpose other than to put more pressure 
on everything but blacktip sharks; a closure out to the 15 fathom line 
would make sense during the winter months when more juveniles occur 
around the 15 fathom depth contour, but would not work during the 
summer months. The commenter claimed that blacktip sharks predominate 
inside 15 fathoms, yet NMFS insists that fishermen fish outside of it.
    Response: The Petitioner requested changing the current time/area 
boundary to 15 fathoms, year-round. However, the current time/area 
boundary of 55 fathoms was chosen because the available data indicate 
that juvenile dusky and sandbar sharks occur in the current time/area 
closure during the months of January through July. Thus, the time/area 
closure location and timeframe was selected based on the distribution 
of these age classes. NMFS may consider changing the boundaries and 
timeframe of the closure if new information warrants any changes. NMFS 
did not examine the availability of blacktip sharks within or without 
the time/area closure since blacktip sharks are considered rebuilt and 
were not the species of concern.

4. National Standards

    Comment 11: Commenters indicated that using only the 2001 to 2002 
observer data constitutes a violation of National Standard 2.
    Response: National Standard 2 states that conservation and 
management measures shall be based upon the best scientific information 
available. As described above, in developing Amendment 1, NMFS used all 
observer data when examining the time/area closure. As noted in the 
response to Comment 1 above, NMFS considered the longer and shorter 
timeframes for dusky sharks in response to comments from fishermen on 
draft Amendment 1. NMFS believes that using all available data, and 
taking into consideration public comment, is consistent with National 
Standard 2.
    Comment 12: Commenters indicated that the closure off North 
Carolina discriminates against the fishermen in North Carolina in 
violation of National Standard 4.
    Response: National Standard 4 states that conservation and 
management measures shall not discriminate between residents of 
different states, and if it becomes necessary to allocate or assign 
fishing privileges among fishermen, that such allocation be fair and 
equitable to all fishermen, be reasonably calculated to promote 
conservation, and be carried out in such a manner that no particular 
individual, corporation, or other entity acquires an excessive share of 
such privileges. While the time/area closure may affect fishermen 
differently, as discussed in Amendment 1, it applies equally to all

[[Page 73985]]

fishermen in any state (and affects fishermen who travel from other 
states to fish in waters off North Carolina), and is needed as a 
conservation measure to reduce bycatch of juvenile sandbars and 
prohibited dusky sharks.
    Comment 13: One commenter questioned how the time/area closure off 
North Carolina was consistent with National Standard 6.
    Response: National Standard 6 requires NMFS to take into account 
and allow for variations among, and contingencies in, fisheries, 
fishery resources, and catches. While other states also catch juvenile 
sharks, as described above, the waters off North Carolina are a known 
pupping and nursery ground for several species of sharks, particularly 
sandbar and dusky sharks. This is shown in the data with most of the 
juvenile sandbar sharks and prohibited dusky sharks for the entire 
fishery being caught in the existing time/area closure. While different 
states may have different impacts on shark stocks and life stages due 
to different trip limits and associated landings, NMFS accounts for all 
sources of mortality during the stock assessment process to develop 
Federal conservation and management measures consistent with the 
Agency's obligations under the National Standards and other provisions 
of the Magnuson-Stevens Act. As the fishery and stock status changes 
over time, NMFS will consider amending existing management measures to 
take into account this variability, consistent with National Standard 
6. Additionally, in the proposed rule for the draft HMS FMP (August 19, 
2005, 70 FR 48804), NMFS is proposing criteria to be considered when 
modifying time/area closures.
    Comment 14: NMFS counts landings of sharks caught in state waters 
against the appropriate Federal shark quotas. However, different states 
have widely varying trip limits. Therefore, states with higher trip 
limits will have a larger impact (i.e., greater reduction) on the 
available Federal shark quota than states with lower trip limits in 
place to reduce the harvest of juveniles sharks. One commenter 
questioned how these measures are consistent with National Standards 4, 
5 (efficiency in terms of harvesting adult fish), 6 (in terms of adult 
and juvenile harvest in HAPCs and the Economic Exclusive Zone [EEZ] off 
other states versus no harvest of adult or juveniles from January 
through July off North Carolina), and 8 (in terms of providing for 
sustained participation of the North Carolina shark fishing community).
    Response: While NMFS is concerned about landings occurring in state 
waters, without taking preemptive action, NMFS does not have 
jurisdiction over state fishermen who fish exclusively in state waters. 
All fishermen with Federal shark permits are required to abide by 
Federal regulations, even in state waters, unless the state has more 
restrictive regulations. NMFS is working through the ASFMC to initiate 
an interstate coast-wide shark plan and has requested states that are 
not consistent with the Federal regulations to reconsider their 
regulations.
    Consistency with National Standards 4 and 6 are addressed in the 
responses above. National Standard 5 states that conservation and 
management measures shall, where practicable, consider efficiency in 
the utilization of fishery resources; except that no such measure shall 
have economic allocation as its sole purpose. The time/area closure 
combined with VMS requirements allow fishermen to travel through the 
closed area and allow the shark fishery to operate at the lowest 
possible cost (e.g., fishing effort, administration, and enforcement), 
while furthering conservation and management objectives and maintaining 
consistency with National Standard 5.
    National Standard 8 states that conservation and management 
measures shall, consistent with the conservation requirements of the 
Magnuson-Stevens Act (including the prevention of overfishing and 
rebuilding of overfished stocks), take into account the importance of 
fishery resources to fishing communities in order to provide for the 
sustained participation of such communities and, to the extent 
practicable, minimize economic impacts on such communities. Consistent 
with National Standard 8, NMFS considered the impacts of the time/area 
closure on fishing communities in Amendment 1 and minimized adverse 
impacts to the extent practicable. Amendment 1 recognized that the 
time/area closure may impact particular communities; however, the 
measure was needed in order to ensure that overfished LCS are rebuilt 
and to prevent overfishing on LCS, as mandated by National Standard 1. 
NMFS initially proposed and took public comment on a much larger time/
area closure (approximately 32,800 nm2 from VA to SC) than the current 
time/area closure. Based on comments from the public, NMFS conducted 
additional analyses and adjusted the final rule so that the time/area 
closure's seaward boundary followed the 55 fathom contour (4,490 nm2). 
This area was selected to include all observed catches of dusky and 
sandbar sharks while mitigating social and economic impacts on fishing 
communities in North Carolina to the extent practicable, consistent 
with National Standard 8. Finally, in the final rule, NMFS also delayed 
implementation of the time/area closure for a year to allow fishermen 
time to adjust to the new regulations (December 24, 2003, 68 FR 74746).
    Comment 15: The time/area closure off North Carolina is in 
violation of National Standard 10.
    Response: As stated in Amendment 1, the time/area closure does not 
cause fishermen to fish in an unsafe manner. NMFS urges fishermen to 
use caution, but cannot control what individual fishermen do in 
response to the time/area closure. VMS also adds safety by allowing 
fishermen to traverse the closed area and provide yet another method of 
locating a vessel in case of an emergency.

5. General Comments

    Comment 16: The Federal Register notice indicated that the 
``Advisory Panel (AP) members noted that the LCS stock assessments 
determined that sandbar and dusky sharks have been overfished and are 
not currently rebuilt.'' The Petitioner requested that NMFS re-issue 
the Federal Register notice removing the AP reference so that it would 
not solicit negative comments on the petition.
    Response: NMFS did not re-issue the Federal Register notice for the 
petition for rulemaking. The selected reference was an accurate 
statement made by AP members during the AP meeting in March of 2005. In 
addition, it is an accurate representation of the stock assessment for 
the LCS complex.
    Comment 17: The state of North Carolina has petitioned NMFS to 
modify the closure line from the current 55 fathom contour to the 15 
contour. With VMS already required on shark vessels, this should not 
present an enforcement difficulty.
    Response: The 15-fathom line is a zig-zag line that approaches the 
existing closure line in some places. As such, the 15-fathom line would 
open only parts of the existing closure, and despite VMS, would be 
difficult to enforce.
    Comment 18: NMFS calculates maturity based on length, but maturity 
can also be based on size of shark fin size or pounds to fin weight.
    Response: An accepted and relatively easy measure to determine 
maturity, based on scientific data, is fish length. Thus, NMFS uses 
fish length to assess maturity. Shark fin size or pounds to fin weight 
is not used by the scientific community as a measure of maturity. 
Additionally, such measurements would likely be more variable or hard 
to

[[Page 73986]]

measure at sea. Thus, in order to ensure reliable data collection on 
stages of maturity, NMFS is unlikely to change to a method that would 
introduce more variability in the data and potential error in 
determining maturity.
    Comment 19: Commenters noted that there has been adoption of 
careful handling and release technologies for bycatch by shark bottom 
longline fishermen, which should help release bycatch alive. In 
addition, shark bottom longline fishermen may be required to attend 
workshops to familiarize themselves with these techniques starting in 
2006.
    Response: Dusky sharks have low survival on longline gear under 
current fishing practices (e.g., only approximately 18 percent of dusky 
sharks survive after being caught on longline gear). Thus, bycatch 
reduction methods must include the reduction of dusky sharks caught 
with longline gear, not just handling and releasing techniques. This 
warrants a time/area closure rather than other management measures, 
such as safe handling and releasing techniques or minimum size limits. 
Should alternative fishing practices be developed that improve the 
survival of dusky or other sharks, NMFS would review the necessity for 
the time/area closure and other management measures, as appropriate. As 
mentioned above, NMFS encourages the Petitioner to work with NMFS 
scientists and industry in pursuing cooperative research on reducing 
bycatch of juvenile and sub-adult sandbar and dusky sharks.
    Comment 20: NMFS should consider how to develop economic relief for 
the directed shark vessel operators who have been marginalized 
financially by Amendment 1 that led to this time/area closure. The 
time/area closure encompasses the primary fishing grounds off North 
Carolina and severely restricts access to the shark fishing quota off 
North Carolina.
    Response: NMFS delayed implementation of the time/area closure for 
a year to allow fishermen time to adjust to the new regulations 
(December 24, 2003, 68 FR 74746). In addition, during the proposed rule 
stage of Amendment 1, NMFS took comment on a much larger time/area 
closure (31,387 nm2 from VA to SC) than the current time/area closure. 
Based on comments from the public, NMFS conducted additional analyses 
and implemented a much smaller time/area closure. NMFS also provided, 
in section 8.5.9 of Amendment 1, a list of other options for economic 
relief for fishermen.
    Comment 21: Proper and logical management dictates that NMFS should 
set aside an adequate incidental quota to reduce or eliminate 
regulatory discards by covering the inevitable incidental catches in 
the fisheries prior to allocating directed quotas.
    Response: NMFS has considered this type of option and most recently 
accepted comments during the scoping process for the draft HMS FMP in 
2004. NMFS may consider this type of option in the future.
    Comment 22: North Carolina has been a willing and responsible 
partner with NMFS with regards to shark conservation. Measures to help 
conserve sharks were first implemented by North Carolina in February 
1993, before NMFS enacted the Shark FMP in April 1993. Those measures 
remained in effect until July 1997 when North Carolina closed its state 
waters to shark fishing for species within the pelagic group. North 
Carolina was the only state to act upon a request from NMFS to close 
their waters to shark fishing. These measures were implemented to 
protect immature sharks and as mentioned, have remained in effect for 
nine years. North Carolina fishermen have fully cooperated with 
voluntary Federal observer programs to help managers collect accurate 
information on sharks.
    Response: NMFS appreciates all the efforts that the state of North 
Carolina and its fishermen have taken to protect juvenile sharks. While 
NMFS has decided not to initiate rulemaking at this time, NMFS is 
committed to reviewing all shark management measures, including time/
area closures, when new stock assessment and/or new information becomes 
available. NMFS would like to work with North Carolina to review new 
information as partners in shark management.
    Comment 23: Any closure considered for conservation reasons should 
be imposed on all commercial and recreational gear that interacts with 
the species of concern. There is no justification for NMFS' continued 
use of closed areas to one gear type to be essentially used to 
reallocate the catches of species of concern to another similar gear 
type or user group.
    Response: The current time/area closure is based on available data 
on bycatch and bycatch mortality by bottom longline gear in a known 
pupping and nursery area including and surrounding an identified HAPC. 
Mortality by other gear types (such as pelagic longline or handgear) 
may be considered in the future, as appropriate. Additionally, if 
finalized, the criteria proposed in the draft HMS FMP would provide a 
basis on which NMFS could consider modifying the existing time/area 
closure to include other gears.
    Comment 24: Commenters requested that NMFS needs to leave the 
closure in place for species preservation and stock rebuilding. Sharks 
need to be protected since certain species are endangered, and they are 
all part of the ecological harmony that used to exist before commercial 
fishing.
    Response: NMFS agrees that the current time/area closure is 
warranted and has decided not to initiate rulemaking until new data are 
available from the stock assessments of both dusky and sandbar sharks, 
the two species most affected by the time/area closure. Based on the 
status of those stock assessments, other information regarding the 
effectiveness of the closure, and actions of other states in an 
interstate coast-wide shark management plan, NMFS may consider revising 
the size, scope, and/or duration of the closure as well as potentially 
eliminating the closure, as appropriate.
    Comment 25: Shark fishing off North Carolina needs to be completely 
banned. The commercial interests have gained control of our government 
agencies, which now allow excess killing of marine life. The time/area 
closure should be enlarged to ban shark fishing along the entire coast 
of the United States (and out to its deepest waters) with a complete 
moratorium on shark fishing for a five-year period. Fishermen can find 
other areas to deplete. Sharks are a part of our children's heritage, 
and NMFS has allowed fishermen, who profit from killing them, to take 
just about every last one of them. There should be fines of $15,000.00 
for a first offense for killing sharks with a fine of $100,000.00 for a 
second offense.

[[Page 73987]]

    Response: NMFS disagrees that a complete ban on shark fishing is 
necessary. NMFS has actively managed both LCS and small coastal sharks 
since the first FMP for sharks in 1993, and with additional measures 
thereafter in the 1999 FMP and Amendment 1 in 2003. Such measures 
include recreational and commercial limits and/or quotas, limited 
access permits, and enhanced reporting requirements, and other 
conservation and management measures that are expected to rebuild shark 
stocks.

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

    Dated: December 8, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 05-24028 Filed 12-13-05; 8:45 am]
BILLING CODE 3510-22-S