[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Rules and Regulations]
[Pages 30484-30528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12407]



[[Page 30483]]

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Part II





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; 
Amendment 3; Final Rule

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 080519678-0217-02]
RIN 0648-AW65


Atlantic Highly Migratory Species; Atlantic Shark Management 
Measures; Amendment 3

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

ACTION: Final rule.

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SUMMARY: NMFS publishes this final rule implementing the Final 
Amendment 3 to the Consolidated Atlantic Highly Migratory Species (HMS) 
Fishery Management Plan (FMP). As it developed Amendment 3, NMFS 
examined a full range of management alternatives available to rebuild 
blacknose sharks and end overfishing of blacknose and shortfin mako 
sharks, consistent with recent stock assessments, the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), and 
other applicable law, and evaluated options for managing smooth dogfish 
as a highly migratory species under the HMS FMP. This final rule 
implements the final conservation and management measures in Amendment 
3 for blacknose sharks, shortfin mako sharks, and smooth dogfish. In 
order to reduce confusion with spiny dogfish regulations, this final 
rule places both smooth dogfish and Florida smoothhound into the 
``smoothhound shark complex.'' This final rule also announces the 
opening date and 2010 annual quotas for small coastal sharks (SCS). 
These changes could affect all fishermen, commercial and recreational, 
who fish for sharks in the Atlantic Ocean, the Gulf of Mexico, and the 
Caribbean Sea.

DATES: The SCS fishery opens on June 1, 2010.
    This final rule is effective on July 1, 2010, except for the 
amendments to Sec. Sec.  635.27(b)(1)(i) through (v) and 635.28(b) 
which will be effective on June 1, 2010.
    However, Sec. Sec.  635.4(e)(4), 635.20(e)(4), 635.22(c)(6), 
635.24(a)(7), 635.27(b)(1)(vi), 635.27(b)(2)(iv), and section E of 
Table 1 of Appendix A, contain information collection requirements 
which are pending approval by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act (PRA). A document will be published 
in the Federal Register announcing the effective date of those 
provisions when they are approved.

ADDRESSES: Copies of the final Amendment 3 to the Consolidated HMS FMP, 
including the Final Environmental Impact Statement (FEIS), the latest 
shark stock assessments, and other documents relevant to this rule are 
available from the Highly Migratory Species Management Division Web 
site at http://www.nmfs.noaa.gov/sfa/hms or by contacting LeAnn 
Southward Hogan or Karyl Brewster-Geisz at 301-713-2347. Hard copies 
may also be requested by writing to the HMS Management Division, 1315 
East-West Highway, Silver Spring, MD 20910, or faxing to (301) 713-
1917.
    NMFS has not yet submitted an application to OMB for approval of 
the collection-of-information regarding the smoothhound shark permit. 
The implementation of this specific requirement is delayed pending 
approval by OMB. Once submitted, written comments regarding the burden-
hour estimates or other aspects of the collection-of-information 
requirements may be submitted to Karyl Brewster-Geisz (see above) and 
by e-mail to [email protected] or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz or LeAnn 
Southward Hogan at 301-713-2347 or fax 301-713-1917 or Jackie Wilson at 
240-338-3936 or fax 404-806-9188.

SUPPLEMENTARY INFORMATION: 

Background

    The Atlantic shark fisheries have been managed by the Secretary 
pursuant to the HMS FMP for Atlantic sharks prepared under the 
authority of the Magnuson-Stevens Act Sections 302(a)(3) and 304(g) in 
1993 (1993 FMP). NMFS revised the 1993 FMP to include swordfish and 
tunas in the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks (1999 
FMP). After amending the 1999 FMP in 2003, NMFS consolidated the 
Atlantic tunas, swordfish, and shark FMP and its amendments with the 
Atlantic billfish FMP and its amendments creating the 2006 Consolidated 
Atlantic HMS FMP. Amendments 1 and 2 amended the 2006 Consolidated HMS 
FMP in 2009 and 2008, respectively. Amendment 3 further amends the 2006 
Consolidated HMS FMP. The 2006 Consolidated HMS FMP and its amendments 
are implemented by regulations codified at 50 CFR part 635.
    On May 7, 2008, NMFS announced its determination that blacknose 
sharks are overfished with overfishing occurring while Atlantic 
sharpnose sharks, bonnethead sharks, and finetooth sharks are not 
overfished and are not experiencing overfishing (73 FR 25665). These 
determinations were based on the results of the 2007 SCS stock 
assessment, which was conducted in a manner similar to the Southeast 
Data Assessment and Review (SEDAR) process that is used by the South 
Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils. 
NMFS has found that this 2007 SCS stock assessment is the best 
available science regarding the status of SCS. The status determination 
criteria that are used to determine the status of Atlantic HMS are 
fully described in Chapter 3 of the 1999 FMP, and fully incorporated in 
the 2006 Consolidated HMS FMP, are summarized in other documents such 
as Amendment 3, and are not repeated here.
    NMFS has also determined that blue sharks are not overfished and 
overfishing is not occurring. With respect to shortfin mako sharks, 
however, NMFS has determined that the species while not overfished, is 
approaching an overfished condition, and is subject to overfishing. 
These determinations are based on international stock assessments 
conducted by the International Commission for the Conservation of 
Atlantic Tuna's (ICCAT's) Standing Committee for Research and Science 
(SCRS). While these assessments are international, the status 
determination criteria are the same as those used for SCS and all 
Atlantic shark species that are managed under the 2006 Consolidated HMS 
FMP and its amendments. NMFS has determined the ICCAT stock assessment 
to be the best available science for managing shortfin mako and blue 
sharks.
    Under the Magnuson-Stevens Act, NMFS, when managing HMS on behalf 
of the Secretary, is required to take action to end overfishing, to 
rebuild an overfished fishery, and, if a fishery is approaching an 
overfished condition, take action to prevent overfishing from 
occurring. Since NMFS determined that the blacknose shark fishery was 
overfished, it was responsible for developing conservation and 
management measures to end overfishing and rebuild the fishery. 
Similarly, upon learning that the shortfin mako fishery was approaching 
an overfished condition, NMFS had a duty, taking into account the 
international nature of the fishery, to take appropriate action at the 
domestic or international level, to prevent overfishing of the shortfin 
mako sharks. NMFS announced its intent to develop

[[Page 30485]]

amendments to the 2006 Consolidated HMS FMP and prepare a corresponding 
environmental impact statement (EIS) on May 7, 2008 (73 FR 25665), and 
held five scoping meetings in 2008 (73 FR 37932, July 2, 2008; 73 FR 
53407, September 13, 2008). During scoping, NMFS also consulted with 
the HMS Advisory Panel in October 2008 (73 FR 53407, September 13, 
2008), the five Regional Fishery Management Councils on the east coast, 
and the Atlantic States and Gulf States Marine Fisheries Commissions. 
NMFS also presented information at a bycatch reduction workshop that 
was held by the Gulf and South Atlantic Fisheries Foundation. In 
February 2009, NMFS presented the Predraft of Amendment 3 to the HMS 
Advisory Panel (73 FR 67135, November 13, 2008).
    In addition to potential measures to address overfished stocks and 
to end overfishing, during the scoping process, NMFS identified the 
need to add smooth dogfish into the management unit to provide for 
conservation and management of the species. Smooth dogfish was 
previously included as an HMS in a fishery management unit (FMU) that 
included deepwater and other sharks in order to prevent finning. These 
species were removed from the FMU in the 2003 Amendment 1 to the 1999 
FMP for Atlantic Tunas, Swordfish, and Sharks since they were protected 
from finning under the Shark Finning Prohibition Act (67 FR 6124, 
February 11, 2002). As described below, based on comments and other 
reasons, NMFS has determined that conservation and management of smooth 
dogfish under the Magnuson-Stevens Act are warranted for several 
reasons including the need to collect data regarding the fishery, 
fishing effort, and life history of the species.
    Based in part on the comments received during scoping and from the 
HMS Advisory Panel on the Predraft, NMFS evaluated a full range of 
alternative management measures for blacknose sharks, SCS, shortfin 
mako sharks, and smooth dogfish within Amendment 3 (74 FR 36706 and 74 
FR 36892). The details of what NMFS proposed and the alternatives 
considered are described in the proposed rule and DEIS, which included 
Draft Amendment 3. Those documents are incorporated by reference and 
their description of management and conservation measures considered at 
the DEIS and proposed rule stage are not repeated here. In the proposed 
rule, NMFS announced nine public hearings from New Hampshire to 
Louisiana, and set a deadline for the public comment period, which was 
to end on September 22, 2009. On August 10, 2009, the comment period 
was extended to September 25, 2009 (74 FR 39914), to accommodate two 
public hearings scheduled on September 22, 2009, and the New England 
Fishery Management Council meeting that was scheduled from September 22 
through 24, 2009. The draft Amendment 3 was presented to the South 
Atlantic (74 FR 44352), Mid-Atlantic (74 FR 34556), Gulf of Mexico (74 
FR 36669), Caribbean (74 FR 40168), and New England (74 FR 45821) 
Fishery Management Councils. The draft Amendment 3 was also presented 
to ASMFC in August 2009. NMFS received a number of oral and written 
comments on the proposed rule. The significant comments and NMFS' 
responses are summarized below under the section labeled ``Response to 
Comments.''
    NMFS prepared an FEIS that discussed the direct, indirect and 
cumulative impacts on the quality of the human environment as a result 
of the preferred management measures identified for Amendment 3. The 
FEIS, including the final actions identified for Amendment 3, was made 
available in March 2010 (75 FR 13275, March 19, 2010). On May 18, 2010, 
the Assistant Administrator for NOAA signed a Record of Decision 
adopting Final Amendment 3 to the 2006 Consolidated HMS FMP. Final 
Amendment 3 was comprised of the preferred alternatives identified by 
NMFS in the FEIS. A copy of the FEIS, including final Amendment 3, is 
available from NMFS (see ADDRESSES). As described in the FEIS and the 
responses to comments below, and based in part on the public comments, 
NMFS made a number of changes to the preferred alternatives between the 
DEIS and FEIS. Corresponding changes were made, where appropriate, to 
Draft Amendment 3 and the Proposed Rule resulting in Final Amendment 3 
and this final rule. The specific changes are described below in the 
section titled ``Changes from the Proposed Rule.'' In brief, the final 
management measures implemented in this rule are: implement a non-
blacknose SCS annual quota of 221.6 mt dw; implement a blacknose shark 
annual quota of 19.9 mt dw; take action at the international level to 
end overfishing of shortfin mako sharks; promote in the domestic 
fishery the release of shortfin mako sharks brought to commercial and 
recreational fishing vessels alive; add smooth dogfish to the HMS 
management unit; establish a smooth dogfish annual quota of 715.5 mt 
dw; require that smooth dogfish fins remain attached to the carcass 
through offloading; require commercial and recreational fishermen to 
obtain a permit authorizing landings of smooth dogfish caught in or 
transported through Federal waters; and make several administrative 
changes clarifying, correcting, and updating the regulations, as 
described in the proposed rule. Amendment 3 also finalized a mechanism 
for determining annual catch limits (ACLs) and establishing 
accountability measures (AMs) for the Atlantic shark fisheries managed 
in the 2006 Consolidated HMS FMP and its amendments.
    In this rule, NMFS is placing both smooth dogfish and the Florida 
smoothhound into the `smoothhound complex.' NMFS intends this name 
change to minimize any confusion with spiny dogfish regulations. Both 
smooth dogfish and the Florida smoothhound, which, as described in 
Amendment 3, are likely the same species, are found in the smoothhound 
family (Triakidae) and are the only members of the smoothhound family 
that are found on the Atlantic coast (there are other smoothhound 
sharks found in the Pacific Ocean). Spiny dogfish, which have been 
managed by the Mid-Atlantic Fishery Management Council (MAFMC) and New 
England Fishery Management Council (NEFMC) since the early 1990s, is 
often referred to as `dogfish' and is found in the dogfish family 
(Squalidae). Thus, referring to `smoothhound' in the regulations and 
requiring a smoothhound permit, rather than a smooth dogfish permit, 
should help in the long term to eliminate any confusion that might be 
caused by having two `dogfish' species and permits. NMFS expects some 
confusion in the short term as fishermen adjust to the use of a new 
term in the regulations. However, because common names of fish are 
often different in different regions (e.g., striped bass and rockfish), 
NMFS does not expect this confusion to last long.
    The effectiveness of all the smoothhound management measures in 
Final Amendment 3 and associated implementing regulations included in 
the final rule will be delayed until the start of the 2012 fishing 
season for smooth dogfish (approximately April 1, 2012), pending 
approval for the data collection requirement under the PRA by OMB. NMFS 
is delaying implementation of those measures to provide time for 
affected fishermen to change business practices, particularly as it 
relates to keeping the fins attached to the carcass through offloading, 
and to provide time for implementing a permit requirement. NMFS is also 
delaying implementation to provide additional time to complete a smooth 
dogfish

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biological opinion under Section 7 of the Endangered Species Act (ESA). 
NMFS will announce in a separate notice how to obtain a permit and any 
other relevant details regarding implementation of these or other 
smoothhound measures.
    During the comment period for the proposed rule, NMFS received many 
questions regarding the impetus for managing smooth dogfish. Over the 
course of this rulemaking process, a number of stakeholders have 
indicated, either in conjunction with or independent of this 
rulemaking, that management of smooth dogfish is necessary. These 
include environmental organizations that have specifically requested 
management action, the Atlantic States Marine Fisheries Commission 
(ASMFC) that included smooth dogfish in its management unit when 
finalizing its Interstate FMP for Coastal Sharks, and the Mid-Atlantic 
Fishery Management Council (MAFMC) that specifically requested 
management authority to manage the smooth dogfish fishery. Also, based 
on existing data, it is apparent that the smooth dogfish fishery is 
substantial, and requires sound science-based conservation and 
management to provide for the long-term sustainable yield of the stock. 
The smooth dogfish fishery has significant annual landings when 
compared with other shark fisheries and has a large directed component. 
Previous experiences with shark fisheries and shark biology have 
indicated that sharks in general are vulnerable to stock collapse in 
the face of unrestricted fishing. Thus, adding the species to the FMU 
now to begin collecting data is appropriate. Additionally, the vast 
majority of the smooth dogfish catch occurs with gillnets. Some gillnet 
fisheries in the Atlantic are defined as Category I fisheries under the 
Marine Mammal Protection Act (MMPA), meaning the annual mortality and 
serious injury of one or more marine mammal stocks in a given fishery 
is greater than or equal to 50 percent of the Potential Biological 
Removal (PBR) level. While all fisheries need to comply with the 
requirements of the MMPA regardless of their management status, it is 
more efficient and predictable to ensure the affected fishermen are 
engaged in the process if their fishery is consistently managed in 
accordance with uniform conservation and management measures developed 
and implemented through an FMP in accordance with the procedures in the 
Magnuson-Stevens Act. Lastly, the smooth dogfish market could overlap 
with that of spiny dogfish, which is a species that is Federally-
managed with a significant directed fishery. Spiny dogfish required 
restrictive management measures in the late 1990s and early 2000s to 
deal with domestic overfishing. While domestically spiny dogfish stocks 
appear to be healthy, other stocks are overfished internationally. 
Because of the possible overlap in markets, NMFS is concerned that 
smooth dogfish products can be used as a substitute for spiny dogfish 
products. If there is market overlap, then declines in spiny dogfish 
stocks (as have been seen internationally) and restrictive management 
measures (including domestic management) could push, or might have 
already pushed, effort into the smooth dogfish fishery. Until initial 
management measures are in place to collect data concerning location, 
effort, and the status of the stock, NMFS will not be able to determine 
whether further or different conservation and management measures 
through future FMP amendments and/or regulatory changes are necessary 
due to the influence of the foregoing and other relevant factors. For 
the foregoing reasons, NMFS has determined that the smoothhound fishery 
is in need of conservation and management, and that the species is 
suitable for management as a highly migratory species by the Secretary 
in accordance with his authority over Atlantic HMS set forth in 
Sections 302(a)(3) and 304(g) of the Magnuson-Stevens Act.

Response to Comments

    A number of individuals and groups provided comments on the 
proposed rule during the comment period in writing or at public 
hearings. All written comments can be found at http://www.regulations.gov. The comments received resulted in numerous 
changes, as described below in the Changes from the Proposed Rule 
section. Significant comments are summarized below by major topic 
together with NMFS' responses. There are eight major issues: SCS 
commercial quotas, commercial gear restrictions, commercial pelagic 
shark effort controls, recreational measures for SCS, recreational 
measures for pelagic sharks, smooth dogfish, general comments, and 
economic comments. The first major issue, SCS commercial quotas, has 
the following sub-issues: science/stock assessment, shrimp trawls and 
working with the Regional Fishery Management Councils, and quota 
alternatives. The comments are numbered consecutively, starting with 1, 
at the beginning of each major issue.

A. SCS Commercial Quotas

1. Science/Stock Assessment

    Comment 1: NMFS received comments regarding the average weights 
used for blacknose sharks. Commenters noted that the blacknose shark 
stock must be healthy, since blacknose sharks of various sizes are 
being landed across all fisheries. In addition, the Gulf of Mexico 
Fishery Management Council (GMFMC) commented that the average size of 
blacknose shark landed in the recreational fishery weighed only 1.5 lb 
dressed weight (dw), which corresponds to a fish less than two feet 
long, and therefore it appears that this data is incorrect. The 
recreational catches included only landed sharks. However, released 
blacknose sharks make up a substantial proportion of the total 
recreational catches, in some years exceeding landings. In other stock 
assessments, a release mortality percentage is applied to the releases 
reported in Marine Recreational Fishing Statistics Survey (MRFSS) to 
account for recreational dead discards. Leaving recreational dead 
discards out may result in erroneous assessment results.
    Response: NMFS recognizes that blacknose sharks of various sizes 
are caught in the SCS fishery, and that the average weight for 
recreationally-caught blacknose sharks, which is the best available 
data from MRFSS, may be underestimated. However, only recreational 
landings and discard data were used in the stock assessments; average 
weights in the recreational fishery were not used in the 2007 SCS and 
blacknose shark assessments. In order to estimate recreational landings 
and dead discards for the stock assessment, NMFS used data from three 
recreational surveys (MRFSS, the NMFS Headboat Survey, and the Texas 
Parks and Wildlife Department Recreational Fishing Survey). NMFS also 
used MRFSS to estimate blacknose shark average weights, and NMFS 
realizes that an average weight for recreationally-caught blacknose 
sharks of less than 2 lb dw reflects a small juvenile shark, but this 
average weight of blacknose sharks is the best available data from 
MRFSS. Recent data from the Southeast Fisheries Science Center (SEFSC) 
has shown that the average size of blacknose sharks caught in gillnets 
is 18.7 lb dw, as opposed to the 14.4 lb dw that was used in the Draft 
Environmental Impact Statement (DEIS) analysis. Based on this updated 
average weight, NMFS has modified the average weight of blacknose 
sharks across all commercial gear types to 6.4 lbs, as opposed to 5.4 
lbs used in the DEIS. Consistent with 40 CFR 1503.4(2) and (3), NMFS 
responded

[[Page 30487]]

to this comment in the DEIS, improved its analysis of blacknose 
mortality rates, and developed, identified, and evaluated a new A6, 
which would set the SCS quota at 221.6 mt dw and the blacknose quota at 
19.9 mt dw. The preferred alternative in the DEIS was A4.
    Comment 2: Several commenters had questions on where the research 
for the stock assessments occur, who does the assessments and research, 
what data goes into the assessments, and whether the assessments 
considered the Atlantic Large Whale Take Reduction Plan regulations.
    Response: The 2007 Southeast Data, Assessment, and Review (SEDAR) 
SCS stock assessment was organized around three workshops. All 
workshops are open to the public to ensure the assessment process is 
transparent. The first is a Data Workshop, during which fisheries 
monitoring, life history data, catch data and indices of abundance from 
both fishery independent and fishery dependent sources are reviewed and 
compiled. The report of the Data Workshop provides all sources of data 
and research that was conducted and included in the stock assessment. 
The data reviewed at this workshop includes fishery dependent data 
(e.g., fishermen, dealer and observer reports), fishery independent 
data (e.g., scientific surveys), and scientific data regarding the 
biology of the species. Participants of the Data Workshop reviewed over 
20 individual catch indices along with other data regarding catches and 
biological information. Current and historical regulations such as the 
Atlantic Large Whale Take Reduction Plan regulations and the Atlantic 
HMS regulations are summarized for consideration by the participants in 
the stock assessment. The scientists realize that management can affect 
fisheries monitoring, and data collection and work to account for these 
impacts when finalizing the data to be used in the assessment models. 
The explanation of the process for conducting the stock assessment is 
provided in Chapter 3 of the FEIS.
    Comment 3: Fishermen are not fishing for sharks, including 
blacknose sharks, anymore since it is not profitable. NMFS could be 
misinterpreting this decline in effort as population declines. Shark 
catches are just incidental catches and occur only in the Tortugas.
    Response: NMFS recognizes that effort has decreased in the shark 
fisheries in terms of the number of boats and in the number of sets, 
but notes that there are several fishermen in the Atlantic, GOM and 
Caribbean who still fish for sharks in both directed and incidental 
manners. In order to account for this decreased effort, NMFS uses a 
weighted average of effort and landings when conducting data analysis. 
This provides a better understanding of the catch-per-unit effort of 
the active vessels in the fishery. Furthermore, the SEDAR stock 
assessment process uses fishery-independent data in the analysis. This 
type of data is generally immune to, and helps correct for, changes in 
fishing effort.
    Comment 4: NMFS received several comments stating that the SEDAR 13 
2007 SCS stock assessment is not the ``best available science.'' 
Commenters noted concerns over certain data issues, the use of trawl 
data before and after TEDs were required, modeling assumptions, and 
management choices described in the stock assessment. One commenter 
stated that while he has advocated closing the shark gillnet fishery, 
he is concerned that NMFS is using suspect data to justify what would 
otherwise be a good outcome. Other commenters noted that shark stock 
assessments for various species tend to move the species assessed from 
overfished to healthy and then from healthy to overfished frequently. 
Many commenters felt that NMFS should wait for the new stock assessment 
and should not implement new quotas or other regulatory changes for 
blacknose sharks based on the 2007 assessment.
    Response: NMFS used the best available science and a rigorous SEDAR 
stock assessment process to make the determination that blacknose 
sharks are overfished with overfishing occurring. The independent 
review panel determined that the data used in the SCS stock assessment 
were considered the best available at the time. They also determined 
that appropriate standard assessment methods based on general 
production models and on age-structured modeling were used to derive 
management benchmarks given the data available. Therefore, NMFS 
believes that the 2007 SCS stock assessment represents the best 
available science and is not considering delaying implementation of 
management measures until the next stock assessment is completed. Under 
Section 304(e) of the Magnuson-Stevens Act, as implemented by the NS1 
Guidelines, if a stock is overfished, NMFS is required to ``take 
remedial action by preparing an FMP, FMP amendment, or proposed 
regulation * * * to rebuild the stock or stock complex to the MSY level 
within an appropriate time frame'' (50 CFR 600.310(e)(3)(ii)).
    Additionally, ``in cases where a stock or stock complex is 
overfished, [the] action must specify a time period for rebuilding the 
stock or stock complex that satisfies the requirements of section 
304(e)(4)(A) of the Magnuson-Stevens Act.'' Therefore, consistent with 
the results of the 2007 SCS stock assessment results, the 2006 
Consolidated HMS FMP, the Magnuson-Stevens Act, and the NS1 Guidelines, 
NMFS is implementing final management measures to end overfishing and 
rebuild blacknose sharks, while providing an opportunity for the 
sustainable harvest of the other sharks in the SCS complex. The 
discussion of the SEDAR stock assessment process is included in Chapter 
3 of the FEIS. NMFS believes that the assessment remains the best 
scientific data available at this time and the agency is required by 
National Standard 2 to utilize this information.
    Comment 5: The stock assessment should not have combined the two 
blacknose shark stocks found in the Gulf of Mexico region and the 
Atlantic coast region. The problem arises with the differences caused 
by a lack of migration movement between regions and the annual breeding 
cycle of the Gulf of Mexico stock coupled with the biennial breeding 
cycle of the Atlantic stock of mature female blacknose sharks. NMFS 
scientists should model them as two separate stocks and not one. 
Additionally, because of differences in life history parameters, 
blacknose sharks in the western North Atlantic should be managed 
separately from those in the Gulf of Mexico.
    Response: In the 2007 SCS stock assessment, the assessment 
scientists considered the issue and determined that blacknose sharks 
should be assessed as one stock. The scientists noted that there was 
conflicting genetic data regarding the existence of two separate 
stocks, and the potential differences in the reproductive cycle for 
South Atlantic and Gulf of Mexico populations. As a result, the 
assessment used an average reproductive cycle of 1.5 years (the average 
between reproductive cycles of one year in the Gulf of Mexico and two 
years in the South Atlantic region). Also, reproductive scenarios were 
conducted during the stock assessment to determine the effect of 
different reproductive cycles on the stock status. Under both 
reproductive scenarios, the overall stock status of blacknose sharks 
did not change. Thus, the reviewers and assessment scientists agreed 
that the base case scenario of a 1.5-year reproductive cycle was 
appropriate for the assessment. Because it was determined that 
blacknose sharks are one stock, NMFS plans on implementing regulations 
to rebuild the blacknose shark stock for the South

[[Page 30488]]

Atlantic and Gulf of Mexico together. The discussion of the SEDAR stock 
assessment process is included in Chapter 3 of the FEIS and adequately 
addressed this issue. NMFS believes that the assessment remains the 
best scientific data available at this time and the agency is required 
by National Standard 2 to utilize this information. NMFS has determined 
that the existing analysis is adequate. As such, changes were not made 
in the FEIS or the final rule in response to this comment.
    Comment 6: Commenters had questions on why the SCS stock assessment 
only included data up to 2005 and on the catch rate data from the trawl 
survey over the last 30 years.
    Response: The data used in the 2007 SCS stock assessment includes 
data up to 2005, which was the most current year of data available at 
the time the SEDAR Data Workshop was held in February of 2007. Full 
descriptions of the data used in the 2007 blacknose stock assessment to 
estimate blacknose bycatch in the GOM are in SEDAR13-DW-31 and SEDAR13-
DW-32. Both papers are available on the SEDAR Web site at http://www.sefsc.noaa.gov/sedar/Sedar_Documents.jsp?WorkshopNum=13&FolderType=Data. As outlined in the Final 
SEDAR 13 SCS Report, the blacknose shark bycatch in the South Atlantic 
was calculated as a proportion of the Gulf of Mexico bycatch. As for 
the data from the Southeast Area Monitoring and Assessment Program 
(SEAMAP), six ``time series'' were used to estimate blacknose shark 
bycatch in the shrimp trawl fisheries. These were the fall time series 
Fall Groundfish (FG) 1972-1986, First Fall (FF) 1987, Fall SEAMAP (FS) 
1988-2006; and the summer time series Summer SEAMAP (SS) 1987-2006, 
Early SEAMAP (ES) 1982-1986, and Texas Closure (TC) 1981. The SEAMAP 
surveys did not utilize TEDs. However, shrimp trawl observer data from 
1972-2005 also were used to estimate blacknose bycatch in the shrimp 
trawl fisheries and shrimp trawl effort data for the Gulf of Mexico and 
the South Atlantic from 1972-2005 were also used in the SEDAR 13 
assessment. The discussion of the SEDAR stock assessment process is 
included in Chapter 3 of the FEIS. It discloses the data sources that 
existed at the time of the stock assessment. NMFS believes that the 
assessment and the data upon which it relied remains the best 
scientific data available at this time. The agency is required by 
National Standard 2 to utilize this information. NMFS has determined 
that the existing data and analysis are adequate. Therefore, no changes 
were made in the FEIS or final rule in response to this comment.
    Comment 7: Will the next blacknose shark assessment be a benchmark 
or update? The protocol of the shrimp observer program seems to be 
reporting just shark groups, not species specific reporting. NMFS 
should follow up on this through the observer program.
    Response: Since the 2007 stock assessment, NMFS and industry 
scientists have been developing different models for analyzing the 
shrimp trawl data. Because the new models, which currently have not 
been peer reviewed, would be a change in methodology from the 2007 
stock assessment, the next blacknose shark assessment will be a 
benchmark assessment. The Data Workshop for this assessment, which will 
also assess sandbar and dusky sharks, will take place in summer 2010. 
NMFS is currently working with the shrimp observer program to increase 
species specific shark data reporting.
    Comment 8: NMFS received comments regarding the survival of 
blacknose sharks that stated that blacknose sharks are alive at the 
boat and will survive if released. NMFS also received comments that 
disputed the reduction of blacknose catches.
    Response: A review of the data from the 2005-2008 Shark Gillnet 
Observer Database, which reported the number of sharks caught in the 
gillnet fishery during observed trips, detailed the disposition of the 
sharks caught in gillnets. From this data, the number of sharks that 
were landed and kept, landed alive and released, and landed dead and 
discarded was determined. Based on this data, NMFS has changed the 
mortality rate for discards to 80 percent instead of 100 percent that 
was used in the DEIS. Although catch rates may remain unchanged, a 
stock may show signs of stress through changes in average size towards 
smaller individuals, or to increasingly larger numbers of younger 
individuals in the stock. While there has not been a reduction in 
blacknose shark commercial landings, based on the most current stock 
assessment, the blacknose shark stock has been determined to be 
overfished, with overfishing occurring. For this reason, NMFS has 
decided to implement management measures to rebuild this overfished 
stock and to end overfishing. Based on this comment, NMFS modified the 
FEIS by adjusting the mortality rates based on observer coverage and 
made conforming changes in the Final Amendment 3 and this final rule.

2. Shrimp Trawls and Working With the Regional Fishery Management 
Councils

    Comment 9: NMFS received many comments regarding the blacknose 
shark mortality related to the Gulf of Mexico shrimp trawl fisheries. 
The State of Louisiana agrees that the majority of the reported 
blacknose shark mortality comes as bycatch from the Gulf of Mexico 
shrimp trawl fishery, but notes that the effort in this fishery has 
been reduced from 2005 due to hurricanes Katrina and Rita and fuel 
prices. The GMFMC and others also commented that the Gulf of Mexico 
shrimp trawl bycatch portion of blacknose shark mortality (45 percent) 
seems high. Specifically, these commenters note that shrimp fishing 
effort in 2005 in areas where red snapper are abundant was reduced by 
50 to 60 percent from 2001-2003 periods and was reduced by 
approximately 65 percent in 2006. It was further reduced in 2007 and 
2008 by approximately 75 percent. The number of vessels participating 
in the offshore shrimp fishery is expected to continue declining until 
at least 2012, and has been further reduced by the impacts of 
hurricanes Katrina and Rita. With time/area closures, the shrimp trawl 
effort is unlikely to rebuild to its prior historical levels. As a 
result, basing blacknose shark mortality rates by gear type using the 
years 1999-2005 may produce anomalous results that are not 
representative of long term trends. Those estimates should be 
recalculated using more recent years or a longer time series of years. 
All of these comments stated that NMFS should update their mortality 
figures utilizing current offshore Gulf of Mexico shrimp trawl effort 
data.
    Response: NMFS would like to thank the State of Louisiana and the 
GMFMC for their comments. NMFS is working with the GMFMC, and agrees 
that blacknose shark mortalities have dropped significantly due to 
decreased effort in the shrimp trawl fishery in the Gulf of Mexico. 
NMFS also recognizes that the impacts from hurricanes, and other 
events, in recent years may have affected effort or landings data. 
Effort in the Gulf of Mexico shrimp fishery has decreased 64 percent 
from the average effort across the entire Gulf of Mexico in 1999-2005 
compared to effort in 2008 (James Nance, NMFS SEFSC pers. comm.). 
Although an analysis of the spatial/temporal distribution of this 
reduction relative to the distribution of blacknose shark bycatch has 
not been conducted, a starting assumption could be that this equates to 
a commensurate 64 percent reduction in bycatch.

[[Page 30489]]

    Modeling efforts are ongoing that incorporate a TED effect in the 
bycatch estimation model. Preliminary analyses utilizing the new 
modeling technique indicate that bycatch may have been reduced by 
approximately 50 percent in 1999-2005. When bycatch reductions from the 
effort reduction of 64 percent are combined with an approximately 50-
percent bycatch reduction anticipated from the TED effect, a 
preliminary estimate of the overall reduction is approximately 82 
percent from 1999-2005 levels. Full results will be provided once the 
study is complete. The uncertainty is not fully defined in these 
preliminary bycatch estimates, and there may be spatio-temporal 
differences in bycatch trends. More data and further analyses are 
required to determine any uncertainty in the estimates and to re-
evaluate the status of the blacknose shark stock. The next assessment 
is scheduled for 2010, and NMFS will re-visit shrimp bycatch and shrimp 
trawl effort at that time. Since the modeling data, analyses and 
conclusions are preliminary and have not been peer reviewed, they were 
not available for use in the FEIS or in this final rule. NMFS believes 
that the 2007 SCS assessment and the data upon which it relied with 
respect to bycatch in the shrimp trawl fisheries remains the best 
scientific data available at this time. The agency is required by 
National Standard 2 to utilize this information. NMFS has determined 
that the existing data and analysis are adequate. Therefore, no changes 
were made in the FEIS or this final rule in response to this comment.
    Comment 10: NMFS received comments regarding the Georgia Bulldog 
trawl video and the ability of blacknose sharks to go through TEDs. 
Several commenters expressed skepticism that blacknose sharks could fit 
through the four inch bar spacing of a TED. Other commenters asked 
about the species of shark in the video and whether they went through 
the TED.
    Response: The SEFSC's video footage of TEDs in shrimp trawls shows 
sharks and protected resources (e.g., sea turtles) being excluded from 
shrimp trawls using TEDs with less than 4-inch bar spacing. The video 
footage was taken from a shrimp trawler, the R/V Georgia Bulldog, off 
the coast of Georgia, within 10 miles of shore, in water depths less 
than 40 feet. The footage shows that some small sharks (blacknose, 
bonnethead, and Atlantic sharpnose), as well as various other finfish, 
can pass through the TEDs and into the codend of the trawl; NMFS has 
not conducted any analysis on the bycatch at this time (e.g., bycatch 
was not identified to species, length measurements were not taken). The 
video is not appropriate for detailed analysis of the TED impact on 
catch and bycatch, but rather serves as a starting point because it 
shows that sharks do make it through this bycatch reduction device 
technology. The discussion and analysis of SCS bycatch in the shrimp 
trawl fisheries used in the 2007 SCS stock assessment remains the best 
scientific data available at this time. The agency is required by 
National Standard 2 to utilize this information. NMFS has determined 
that the existing data and analysis are adequate. Therefore, no changes 
were made in the FEIS or this final rule in response to this comment.
    Comment 11: NMFS received numerous comments regarding the bycatch 
of blacknose sharks in shrimp trawl fisheries. Commenters suggested 
that NMFS should study potential ways to reduce bycatch of blacknose 
sharks and other species in trawl fisheries, including gear 
modifications, gear restrictions, or time-area closures and implement 
measures to reduce this bycatch. In addition, NMFS received comments 
that NMFS should work together with Regional Fishery Management 
Councils to reduce the bycatch of blacknose sharks in the shrimp trawl 
fisheries and to ensure ACLs and AMs are set for fisheries that catch 
blacknose sharks in order to limit the significant mortality in the 
shrimp fisheries.
    Response: NMFS is working with the Gulf of Mexico and South 
Atlantic Fishery Management Councils to establish bycatch reduction 
methods, as appropriate, to reduce blacknose shark mortality in the 
shrimp trawl fisheries. In addition, NMFS SEFSC has been working with 
industry scientists to re-evaluate the shrimp bycatch models used in 
the 2007 SCS stock assessments. In particular, they have been 
evaluating the effect of TEDs on SCS bycatch in shrimp trawls. NMFS 
continues to monitor and evaluate bycatch in HMS fisheries through the 
pelagic longline (PLL), bottom longline (BLL), and gillnet observer 
programs, and evaluation of management measures such as closed area 
trip limits, and gear modifications. Because the Gulf of Mexico and 
South Atlantic Fishery Management Councils manage the shrimp trawl 
fisheries, NMFS is only implementing measures in this amendment to 
reduce the landings and discards in Atlantic shark fisheries. 
Regulatory changes to the shrimp trawl fisheries in the South Atlantic 
and Gulf of Mexico regions would be done through the Council process in 
those regions. This amendment includes a mechanism to specify ACLs for 
stock complexes, including the SCS complex, and certain specific shark 
species as well as identify AMs, consistent with the Magnuson-Stevens 
Act requirements to establish a mechanism for specifying ACLs and AMs 
at a level that will prevent overfishing. The regulations necessary to 
adjust ACLs as needed and to apply AMs are currently in place. The DEIS 
explained NMFS' approach to reducing bycatch by working with the 
Regional Fisheries Management Councils responsible for those fisheries. 
In addition, NMFS has committed to ongoing monitoring and future 
evaluation of this issue. That discussion is included in Chapter 1 of 
the FEIS.
    Comment 12: Some commenters noted that the shrimp industry has 
mandated TEDs and other bycatch reduction devices, and ask if there are 
other shrimp trawl bycatch reduction measures that can be implemented.
    Response: NMFS agrees that the mandating of TEDs and other bycatch 
reduction devices have aided in the reduction of blacknose shark 
catches and other protected resources. Currently, NMFS is working with 
the GMFMC, South Atlantic Fishermen Management Council (SAFMC), and the 
shrimp industry to look at other ways to decrease the shark bycatch in 
the shrimp fishery. For the reasons stated in response to comment 11, 
NMFS did make changes in the FEIS based on this comment.

3. Quota Alternatives

    Comment 13: NMFS should implement alternative A1, which calls for 
no action to the SCS commercial quota. This alternative is appropriate 
given the concerns on the science for blacknose and the range of 
alternatives. The Atlantic Large Whale Take Reduction Plan (ALWTRP) 
regulations eliminate gillnet fishing for 5 months a year (November to 
April), which should be positive for blacknose sharks. When the fishery 
opens in April and May, the blacknose sharks are within State waters, 
therefore, NMFS should not change anything and stay with the 5 month 
ALWTRP closure.
    Response: The results of the 2007 SCS stock assessment determined 
that, despite the ALWTRP, blacknose sharks are overfished and 
overfishing is occurring. The assessment recommended a blacknose shark 
specific TAC and a corresponding rebuilding timeframe. One objective of 
this rulemaking is to ensure that fishing mortality levels for 
blacknose sharks are maintained at or below levels that would result in 
a 70 percent probability of rebuilding in the timeframe

[[Page 30490]]

recommended by the assessment. Under the Magnuson-Stevens Act, as 
implemented by the NS1 Guidelines, if a stock is overfished, NMFS, in 
addition to taking action to propose and implement measures to end 
overfishing, is required to ``take remedial action by preparing an FMP, 
FMP amendment, or proposed regulation * * * to rebuild the stock or 
stock complex to the MSY level within an appropriate time frame'' (50 
CFR 600.310(e)(3)(ii)). NMFS chose not to select the status quo 
alternative as the preferred alternative because it does not end 
overfishing or implement a rebuilding plan for overfished stocks as 
required by the Magnuson-Stevens Act and NS1 Guidelines. Based on 
further analysis of new data and public comment, NMFS selected an SCS 
quota alternative in the FEIS that was different from the preferred SCS 
quota alternative in the DEIS. Specifically, NMFS selected alternative 
A6 in the FEIS which has a non-blacknose SCS quota of 221.6 mt dw and a 
blacknose shark quota of 19.9 mt dw because it implements quotas 
necessary to rebuild and end overfishing of blacknose sharks. The final 
action also allows the gillnet fishery to continue, thus mitigating 
some of the economic impacts that are expected and necessary in order 
to reduce fishing mortality as prescribed by the recent stock 
assessment. Thus, the final SCS quota and commercial gear alternatives 
strike a balance between positive ecological impacts that must be 
achieved to rebuild and end overfishing of blacknose sharks shark 
stocks while minimizing the negative economic impacts that would occur 
as a result of these measures.
    Comment 14: NMFS received a number of comments indicating that 
gillnet fishermen can adapt their fishing techniques and gear to avoid 
catching blacknose sharks. Specific comments included: Did NMFS 
consider that fishermen can adapt and select on certain species?; 
gillnet fishermen can adapt to avoid catching blacknose sharks similar 
to how they reduced turtle and marine mammal bycatch; strikenet gear is 
a clean gear and can be modified to avoid blacknose sharks; it is 
possible to design gillnet gear to eliminate blacknose shark catches; 
and NMFS should set aside Amendment 3 or go with status quo until more 
gear research can be conducted.
    Response: Due to this comment, NMFS reviewed the 2005-2008 Shark 
Gillnet Observer Data. Based on this analysis, NMFS agrees that 
fishermen may be able to adapt and specifically target some species 
while avoiding others. The percentage of blacknose sharks in the catch 
from gillnet trips that were targeting other species were: 2.6 Percent 
from 5 trips that targeted blacktip sharks, 1.4 percent from 17 trips 
that targeted Atlantic sharpnose sharks, 8.3 percent from 6 trips that 
targeted bonnethead sharks, and 3.9 percent from 118 unspecified shark 
trips. NMFS used this information to re-analyze the SCS quota and 
commercial gear alternatives. Based on this analysis and public 
comment, NMFS selected alternative A6, which is a new alternative and 
would have a non-blacknose SCS quota of 221.6 mt dw and a blacknose 
shark quota of 19.9 mt dw. In addition, NMFS chose not to prohibit 
gillnet gear as an authorized gear type and selected the commercial 
gear alternative to B1, the No Action alternative. If in subsequent 
analysis the data shows that shark fishermen have been able to avoid 
catching blacknose sharks, NMFS will re-evaluate the landings data, and 
increase the quota for non-blacknose SCS, blacknose sharks, or both. 
However, if a re-evaluation of the data shows that fishermen have not 
been able to minimize blacknose shark mortalities, then NMFS reserves 
the right to decrease either, or both, quotas. In response to this 
comment, NMFS modified the FEIS to include the identification and 
selection of preferred alternatives that would establish blacknose and 
non-blacknose SCS quotas and continue to allow the use of gillnets as 
authorized gear for harvesting all Atlantic sharks. The changes to the 
final rule are discussed in more detail below.
    Comment 15: NMFS received numerous comments on the proposed non-
blacknose SCS quota. Several commenters were concerned that the non-
blacknose SCS quota was too low particularly since these species stocks 
are healthy and are a viable alternative for fishermen. The low quota 
could result in high regulatory discards. The State of North Carolina 
noted that if NMFS reduced the non-blacknose SCS quota, North Carolina 
fishermen will be disproportionately impacted by this regulation by 
removing fair and equitable distribution of SCS quota and implementing 
measures contrary to measures in State waters. The State of South 
Carolina noted that the proposed quota of 56.9 mt dw for small coastal 
sharks will result in a 76 percent reduction in the landings of 
finetooth, Atlantic sharpnose and bonnethead sharks in the shark 
fishery. As such, this reduction in the quota for these three species 
would seem unwarranted at this time. Additionally, this proposed 
reduction will have significant repercussions among South Carolina's 
permitted commercial fisherman who landed 10 mt dw of these three 
species in 2008 or nearly 17 percent of the proposed quota for the 
Atlantic, Gulf of Mexico and Caribbean fisheries, combined. In 
addition, the small quota is likely to be reached and the fishery 
closed before South Carolina fishermen have an opportunity to land 
their traditional catch. For these reasons, NMFS should implement 
alternative A2 in combination with the gillnet prohibition, alternative 
B3.
    Response: NMFS recognizes that the status of non-blacknose SCS is 
not overfished and not experiencing overfishing. In the DEIS, the 
preferred alternative, A4, would have set the commercial quota for non-
blacknose SCS sharks at 56.9 mt dw, and the blacknose shark quota at 
14.9 mt dw. Due to recent data updates, analysis, and public comments, 
NMFS has changed the preferred alternative from A4 in the DEIS to A6 in 
the FEIS, which would set the commercial quota for non-blacknose SCS at 
221.6 mt dw and the blacknose shark quota at 19.9 mt dw. The final non-
blacknose SCS quota sets the commercial quota equal to the average non-
blacknose sharks SCS landings from 2004 through 2008 and therefore 
would not have economic impacts beyond the status quo. By looking at 
the recent Gillnet Observer Data from 2005-2008, NMFS agrees that it 
appears that commercial shark fishermen can target non-blacknose sharks 
and avoid catching blacknose sharks. If subsequent reviews of the 
management measures implemented under alternative A6 indicate that 
commercial shark fishermen are able to minimize their catch of 
blacknose sharks, NMFS could increase the non-blacknose SCS quota to 
allow for greater access to these species. Also, any underharvest of 
the non-blacknose SCS quota from the previous year could be added to 
the quota the following year, because all of the shark species in this 
complex (Atlantic sharpnose, finetooth and bonnethead) are not 
overfished and overfishing is not occurring. NMFS recognizes that there 
may be a high mortality rate for the blacknose sharks released from the 
various gears used in the SCS fishery. NMFS is attempting to limit the 
discard mortalities of blacknose sharks in the SCS fishery associated 
with the proposed SCS quota, by allowing the commercial shark fishermen 
to retain the number of sharks equal to the average landings of 
blacknose sharks from all gears based on the 2004-2008 Coastal 
Fisheries Logbook and Shark Gillnet Observer Data. In response to this 
comment,

[[Page 30491]]

NMFS made the foregoing changes to the FEIS and this final rule 
including the selection of an alternative to establish a non-blacknose 
SCS quota at 221.6 mt dw and allow continued use of gillnet as 
authorized gear for harvesting SCS. Changes to the final rule are 
discussed in more detail below.
    Comment 16: NMFS received several comments specific to the quota 
levels for blacknose sharks. Comments suggest that NMFS should prohibit 
the retention of blacknose sharks by placing the species on the 
prohibited list. Other commenters suggested that the blacknose shark 
quota needs to be high enough to allow for the retention of incidental 
catch. The State of Georgia supports the quotas in alternative A4 with 
gillnet closure in alternative B3 as it will significantly reduce the 
impacts of regulatory discards of blacknose sharks, which would occur 
if the quota for blacknose sharks is reached before the non-blacknose 
SCS quota.
    Response: NMFS agrees that the blacknose shark quota needs to be 
large enough for fishermen to keep blacknose sharks that are caught 
incidentally. As detailed in Chapter 4 and Appendix A, NMFS has changed 
the preferred alternative from A4 in the DEIS to A6 in the FEIS. Under 
alternative A6, the non-blacknose SCS (221.6 mt dw) and blacknose shark 
(19.9 mt dw) quotas would allow for incidental catch of blacknose 
sharks. Also, under alternative A6, both the blacknose and the non-
blacknose fisheries would close when either the quota was reached or 
the catch was projected to reach 80 percent of the quota. This offers 
an incentive to avoid blacknose sharks and target non-blacknose SCS to 
ensure that the non-blacknose SCS fishery does not close with quota 
still available. NMFS considered closing the entire SCS fishery 
(alternative A5) however, the stock assessment did not warrant such 
action. Under the rebuilding plan, a limited number of blacknose sharks 
can be retained while still meeting rebuilding goals. Furthermore, once 
a species is placed on the prohibited list, fishery-dependent data on 
the species will cease to be reported and cannot be used in future 
stock assessments or management measure determinations. In response to 
this comment, NMFS made the foregoing changes to the FEIS and this 
final rule including the selection of an alternative to establish a 
blacknose SCS quota at 19.9 mt dw and allow continued use of gillnet as 
authorized gear for harvesting SCS. The DEIS already included an 
alternative to close the SCS fishery that would have prohibited the 
retention of blacknose sharks. Therefore, an additional alternative to 
list blacknose as a prohibited species was not added to the FEIS. 
Changes to the final rule as a result of this comment are discussed in 
more detail below.
    Comment 17: NMFS received several comments regarding the overlap of 
the SCS gillnet fishery with other gillnet fisheries in the southeast 
region. Comments included: The NMFS proposal will force effort into 
other fisheries (e.g., kingfish fishery) and this will fracture those 
other fisheries; NMFS needs to know the number of blacknose shark 
catches in the mackerel fishery and how that relates to the 22-percent 
mortality of blacknose shark by gillnets; if NMFS is taking the bulk of 
effort away, why not let mackerel fishermen keep blacknose sharks; NMFS 
should eliminate blacknose sharks landings and allow mackerel fishermen 
to land other SCS; and NMFS should collect data on discards in the 
mackerel fishery.
    Response: NMFS recognizes that fishermen will adapt in different 
ways to new regulations placed on a fishery, which may include 
increasing their effort in other fisheries. NMFS plans to continue to 
collect the best available data from several sources including data on 
landings, discards, and bycatch. As this new data becomes available, 
regulation changes could be made that would provide fishermen access to 
resources that are ecologically and economically viable. Based on the 
most recent data, which indicates that gillnet fishermen may be able to 
avoid certain species, NMFS changed its preferred alternative from B3 
in the DEIS, which would have eliminated gillnet gear as an authorized 
gear from South Carolina south, to B1 in the FEIS, the No Action 
alternative, which retains gillnet as an authorized gear in the 
Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Also, under the 
selected alternative, A6, incidental catches of blacknose sharks will 
continue to be allowed. In response to this comment, NMFS made changes 
to the FEIS including the development of a preferred alternative that 
establishes a blacknose quota at 19.9 mt dw and a non-blacknose SCS 
quota at 221.6 mt dw. The DEIS already considered an alternative to 
close the entire SCS fishery which would essentially prohibit retention 
of blacknose. Therefore, an additional alternative to list blacknose as 
a prohibited species was not added to the FEIS. The discussion of 
displacing effort from the shark fishery into other gillnet fisheries 
was included in the FEIS. NMFS made changes in preferred alternative 
from the DEIS to the FEIS based on this and similar comments and made 
conforming changes to this final rule. The changes to the final rule 
are discussed below.
    Comment 18: NMFS needs to move blacktip sharks to the SCS quota and 
increase the quota for all SCS.
    Response: NMFS is moving towards species-specific management, 
including species-specific quota. However, for some species NMFS has 
only limited data, which requires management to be based on species 
within a complex of species. The 2007 SCS stock assessment assessed the 
SCS complex as a whole as well as each species individually, and 
recommended using species-specific results rather than the aggregated 
SCS complex results. The assessment recommended a blacknose shark-
specific TAC and a corresponding rebuilding timeframe. Therefore, based 
on these results, NMFS has removed blacknose sharks from the SCS quota 
and set a separate commercial quota for this species. A species-
specific quota enables NMFS to closely monitor blacknose shark landings 
and fishing effort according to the rebuilding plan. Blacktip sharks 
are currently managed in the non-sandbar LCS complex implemented in 
Amendment 2 to the Consolidated HMS FMP. Blacktip sharks are more 
commonly caught with gear targeting LCS (i.e., BLL gear) rather than 
gear used to target SCS (i.e., gillnet gear). In addition, the blacktip 
shark stock assessment recommended that blacktip shark landings should 
not change or increase from historical catch levels. Placing blacktip 
sharks within the non-blacknose SCS quota could drastically reduce the 
blacktip shark regional quota since the non-blacknose SCS shark quota 
is being reduced in the preferred alternative from 454 mt dw (status 
quo) to 221.6 mt dw (alternative A6 in the FEIS). Therefore, at this 
time, NMFS is not placing blacktip sharks within the SCS complex. NMFS 
has determined that the comment proposes an action that does not meet 
the purpose and need set forth in the DEIS and FEIS and therefore did 
not include it as an additional alternative for evaluation in the FEIS.
    Comment 19: NMFS stated that they want to help the U.S. fleet catch 
the entire tuna and swordfish quotas, so why is NMFS against SCS 
fisherman landing the SCS quota as appears to be the case in preferred 
alternative A4?
    Response: In the DEIS, the preferred alternative A4, would have set 
the non-blacknose quota at 56.9 mt dw and the blacknose shark species-
specific quota at 14.9 mt dw. Recent data, and the analysis of that 
data, has led NMFS to change the preferred alternative from A4 in the 
DEIS to A6 in the FEIS. With alternative A6, the preferred alternative

[[Page 30492]]

in the FEIS, selected, the non-blacknose SCS quota will be set at 221.6 
mt dw, which is the average landings of non-blacknose SCS from 2004 
through 2008. The blacknose shark species-specific quota will be set at 
19.9 mt dw. These regulations are being implemented because the status 
of the blacknose shark stock has been determined to be overfished, with 
overfishing occurring. Also, any underharvest of the non-blacknose SCS 
quota could be added to the following year's fishing quota, since the 
stock status of finetooth, Atlantic sharpnose, and bonnethead sharks 
have all been determined to be healthy. Also, under alternative A6, 
both the blacknose and the non-blacknose fisheries would close when 
either the quota was reached or the catch was projected to reach 80 
percent of the quota. This offers an incentive to avoid blacknose 
sharks and target non-blacknose SCS to ensure that the non-blacknose 
SCS fishery does not close with quota still available. These measures 
maximize the opportunity to harvest the healthy non-blacknose SCS while 
rebuilding and preventing overfishing on the blacknose shark stock. 
This comment did not target any specific section or issue analyzed in 
the DEIS and a specific change in the FEIS was not made. As mentioned, 
however, the preferred alternative for non-blacknose SCS quota in the 
DEIS has been adjusted in the preferred alternative in the FEIS to 
address this general concern. Conforming changes were made in this 
final rule. These changes are discussed below.
    Comment 20: NMFS should save the SCS fishery. NMFS took the 4,000 
lb LCS trip limit away and are now taking away blacknose sharks. Are 
there any proposals for buyouts for SCS fishermen?
    Response: Currently, there are no proposals to buyout SCS 
fishermen. Buyouts can occur via one of the three mechanisms, 
including: Through an industry fee, via appropriations from the United 
States Congress, and/or through funds provided from any State or other 
public sources or private or non-profit organizations. A buyout plan is 
not proposed in this amendment because the Agency is unable to 
implement a buyout as a management option. Buyouts must be initiated 
via one of the aforementioned mechanisms.
    Comment 21: We believe the reductions in the commercial quota and 
the elimination of the gillnet gear will have significant, positive 
effects. Based on estimates taken before 2007, your analyses determined 
that this fishery was responsible for 45 percent of the mortality on 
blacknose sharks. The Gulf of Mexico shrimp effort was reduced by 74 
percent from the average effort of 2001-2003. Because of this action, 
the historic 46 percent take by the trawl fishery would have already 
been reduced to about 12 percent of the total take. This reduction 
should, in combination with reductions from quota and gear 
alternatives, drive the estimates of total reductions in take by 
numbers of blacknose shark to something in excess of 80 percent, a 
value well above the target of 78 percent.
    Response: NMFS is working with the GMFMC, and agrees that blacknose 
shark mortalities in the shrimp trawl fishery have dropped 
significantly due to decreased effort in the shrimp trawl fishery in 
the Gulf of Mexico. Based on 2005-2008 Shark Gillnet Observer Data, 
NMFS believes that gillnet fishermen may be able to effectively target 
other SCS species while minimizing the mortality of blacknose sharks 
and protected species. Because of this analysis, NMFS has changed their 
preferred alternative from B3 in the DEIS, which would have eliminated 
gillnet gear from South Carolina south, to B1 in the FEIS, the No 
Action alternative, which would retain gillnets as an authorized 
commercial gear type for sharks. Based on this same data, and because 
of reductions in blacknose shark mortalities in the shrimp trawl 
fishery, NMFS has also changed the preferred quota alternative from A4 
in the DEIS to A6 in the FEIS, which would create a non-blacknose SCS 
quota of 221.6 mt dw and a blacknose shark quota of 19.9 mt dw. Thus, 
due to updated data, analyses, and public comment, NMFS modified the 
FEIS quota and gear alternatives and made conforming changes to the 
final Amendment 3 and this final rule. The changes are discussed below.
    Comment 22: In the Gulf of Mexico, it might be possible to reduce 
juvenile mortality of blacknose sharks by adopting for shark bottom 
longlines, on a seasonal basis, the existing reef fish longline 
boundary (20 fathoms east of Cape San Blas, Florida, 50 fathoms west of 
Cape San Blas). If this eliminates too much of the traditional shark 
fishing grounds to be acceptable, than perhaps the ``stressed area'' 
boundary, which varies from 10 to 30 fathoms, could be considered.
    Response: NMFS considered closing waters inshore of 20 fathoms in 
the Gulf of Mexico to shark bottom longline gear as a way to reduce 
fishing pressure on neonate and juvenile blacknose sharks. The majority 
of the recorded interactions with neonate and juvenile blacknose sharks 
occur in waters inshore of 20 fathoms. Therefore, by closing waters 
inshore of 20 fathoms, NMFS would relieve fishing pressure on neonate 
and juvenile blacknose sharks. However, closing waters inshore of 20 
fathoms could have a large, negative socioeconomic impact on the shark 
BLL fishery in the Gulf of Mexico, as the majority of BLL sharks sets 
observed from 1994-2007 occurred inshore of 20 fathoms. Given these 
potentially large, social and economic negative impacts, and the 
ability to rebuild blacknose sharks through other alternatives, NMFS 
did not further analyze this alternative in the FEIS. Similarly, NMFS 
considered closing the waters inshore of 50 fathoms in the Gulf of 
Mexico to shark BLL fishing, however, because this closure would cover 
more area and have larger socioeconomic impacts than a 20 fathom line 
closure, this alternative was not further analyzed in the FEIS.

B. Commercial Gear Restrictions

    Comment 1: NMFS received numerous comments supporting the proposed 
alternative to ban gillnets in the shark fishery from South Carolina 
south (alternative B3). The SAFMC and MAFMC both expressed support for 
the proposal to ban shark gillnet gear. The State of Georgia supports 
banning gillnet and states that removal of shark gillnet gear is long 
overdue to reduce incidental take of sea turtles and marine mammals. 
Other commenters stated that banning gillnet gear would protect 
blacknose sharks, and reduce bycatch and protected resource 
interactions.
    Response: NMFS would like to thank the SAFMC, MAFMC, and the State 
of Georgia for submitting comments in support of alternative B3. Based 
on the 2005-2008 Shark Gillnet Observer Program data, and comments from 
fishermen, NMFS believes that gillnet fishermen may be able to target 
other SCS species and minimize the mortality of blacknose sharks. For 
this reason, NMFS believes that banning gillnets as an authorized gear 
type is unwarranted at this time. NMFS would prefer to allow gillnet 
fishermen the opportunity to prove that they can target specific 
species, and avoid others. Therefore, NMFS changed its preferred 
alternative from B3 in the DEIS, which would have banned gillnets from 
South Carolina south, to B1 in the FEIS, the No Action alternative, 
which would retain all currently authorized gears in the shark fishery. 
The current regulations for gillnet fishermen, which include two-hour 
net checks and keeping nets attached to the boat, should continue to 
help reduce the incidental bycatch of other species. The bycatch and 
discards of blacknose sharks would be reduced by the implementation of 
a smaller non-

[[Page 30493]]

blacknose SCS and blacknose shark quota. The gillnet fishery in the 
southeast Atlantic Ocean is monitored by vessel monitoring systems 
(VMS) and has sufficient observer coverage. The VMS and observer 
coverage has helped protect endangered species like sea turtles and 
right whales. NMFS believes that allowing gillnet gear as an authorized 
gear for sharks is consistent with the 2008 Biological Opinion (BiOp) 
for the Atlantic Shark fishery. The 2008 BiOp was completed for 
Amendment 2 to the Consolidated HMS FMP which did not prohibit the use 
of gillnet gear. Therefore the BiOp was based on the continued use of 
gillnet gear in the Atlantic Shark fishery and concluded that the 
Atlantic shark fishery is not likely to jeopardize the continued 
existence of endangered green, leatherback, and Kemp's ridley sea 
turtles; the endangered smalltooth sawfish; or the threatened 
loggerhead sea turtle. Furthermore, the BiOp concluded that Amendment 2 
was not likely to adversely affect any listed species of marine 
mammals, invertebrates (i.e., listed species of coral) or other listed 
species of fishes (i.e., Gulf sturgeon and Atlantic salmon) in the 
action area. NMFS believes that the significant social and economic 
impacts on the SCS commercial shark participants from prohibiting 
gillnet gear are disproportionate to the ecological benefits especially 
since the No Action alternative in combination with alternative A6 
reduces blacknose shark mortality to levels consistent with the 
rebuilding plan for this species.
    Comment 2: The gear restriction on the shark gillnets from South 
Carolina to the Gulf of Mexico and the severe quota reduction of SCS 
will be detrimental to the critical scientific data that is needed to 
properly manage this fishery.
    Response: NMFS agrees that prohibiting shark gillnet gear would 
affect the scientific data that is used to manage the SCS fishery. 
Based on this and other public comments, as well as additional data 
analysis using updated blacknose shark weight data, NMFS changed its 
preferred alternative from B3 in the DEIS, which would have banned 
gillnets from South Carolina south, to B1 in the FEIS, the No Action 
alternative, which retains the current authorized gear types. NMFS 
feels that the scientific data collected from programs like the Shark 
Gillnet Observer Program provide an invaluable source of fishery 
dependent information that can augment fisheries independent data 
collected by NMFS scientists and help to inform fishery management 
decisions.
    Comment 3: Contrary to popular beliefs, gillnet gear is the most 
selective way of fishing. Gillnet fishermen catch on average a 14.4 lb 
dw sexually mature blacknose shark that have spawned at least once. The 
2008 BiOp stated that shark gillnet fishermen do not catch as many 
protected species as bottom longline fishermen. The Federal observer 
data has shown that 97.3 percent of our catch consists of sharks and 
98.1 percent of the sharks caught were the targeted species. This gear 
is not having as big an impact on the stock because they are not 
catching juveniles. NMFS should consider a gillnet endorsement, not a 
preferred alternative that would close the fishery. In addition, the 
State of South Carolina commented that, although the retention of 
sharks taken by gillnets is already prohibited in their State waters, 
NMFS should be aware that South Carolina has licensed and permitted 
commercial fisherman who have historically fished for sharks with 
gillnets in Federal waters. These fishermen will certainly be impacted 
and possibly displaced from this fishery through adoption of this 
proposed action.
    Response: In response to this and similar comments NMFS made the 
following changes between the DEIS and FEIS. In the DEIS, NMFS 
preferred alternative B3, which would have prohibited gillnets from 
South Carolina south, but due to recent data and new data analysis and 
public input, NMFS changed its preferred alternative in the FEIS to B1, 
the No Action alternative, which would retain gillnets as an authorized 
gear in the shark fishery. Based on recent data from the SEFSC, NMFS 
changed the average weight for blacknose sharks caught in gillnets from 
14.4 lbs to 18.7 lbs in the FEIS. Also, NMFS re-analyzed the data from 
the 2005-2008 gillnet observer data. Those analyses showed that gillnet 
fishermen may be able to target other SCS species, and minimize the 
mortality of blacknose sharks. NMFS used this information to re-analyze 
the SCS quota alternatives in the FEIS. This resulted in NMFS changing 
the preferred alternative from B3 in the DEIS, which would have 
eliminated gillnet as an authorized gear in the shark fishery from 
South Carolina south, to B1 in the FEIS, the No Action alternative, 
which will retain all currently authorized gears for SCS, including 
gillnets. In addition, NMFS is still working with the GMFMC to 
determine the impacts that TEDs have on excluding blacknose sharks from 
the shrimp trawl nets. NMFS believes that the new preferred 
alternatives would not displace the South Carolina gillnet fishermen in 
Federal waters.
    Comment 4: There are large areas and times when gillnet fishermen 
are not allowed to fish. There is already a large gillnet closure area 
due to State water closures and the ALWTRP regulations. NMFS should 
work with the few shark gillnet fishermen left to address issues in the 
few areas where gillnets are being used now. There are not many shark 
gillnet fishermen left in the industry, and everyone is a seasoned 
fishermen with over 20 years of experience.
    Response: NMFS agrees that gillnet gear is prohibited in many 
places, such as the State waters of Florida and Georgia and Southeast 
Right Whale Calving Area. Also, NMFS agrees that there are not many 
gillnet fishermen who target sharks. There are still gillnet fishermen 
that catch sharks while targeting other species and some of those 
fishermen could target sharks. NMFS has gathered all of the comments 
from gillnet fishermen and re-evaluated the data on the average size of 
blacknose sharks caught in the gillnet fishery in the FEIS. Based on 
this analysis, NMFS changed the average weight for blacknose sharks 
caught in gillnets from 14.4 lbs in the DEIS to 18.7 lbs in the FEIS. 
Also, the data from the 2005-2008 Shark Gillnet Observer Program seems 
to indicate that gillnet fishermen may be able to target other SCS 
species, and minimize the mortality of blacknose sharks. NMFS used this 
information to re-analyze the alternatives regarding quotas in the 
FEIS. The new preferred alternative in the FEIS, A6, sets a non-
blacknose SCS quota of 221.6 mt dw and a blacknose shark quota of 19.9 
mt dw. In addition, NMFS changed their preferred alternative from B3 in 
the DEIS, which would have prohibited gillnets from South Carolina 
south, to alternative B1, the No Action alternative in the FEIS, which 
would retain gillnets as an authorized gear in the shark fishery.
    Comment 5: If a prohibition on gillnet gear is implemented, what is 
going to stop NMFS from removing all gillnet gear in other fisheries, 
such as the mackerel fishery, in the future?
    Response: In the DEIS, NMFS preferred alternative B3, which would 
have prohibited gillnets from South Carolina south, but due to recent 
data and new data analysis and public input, NMFS changed its preferred 
alternative in the FEIS to B1, the No Action alternative, which would 
retain gillnets as an authorized gear in the shark fishery. In 
addition, this amendment only deals with management measures in the 
Atlantic shark fishery and any measures specific to the mackerel

[[Page 30494]]

fishery would be implemented through the Regional Fishery Management 
Council that has authority for this species. This comment does not call 
for change to any specific section of the DEIS. Therefore, no specific 
change was made in the FEIS or this final rule in response to this 
comment.
    Comment 6: NMFS received several comments on the use of VMS in the 
gillnet fishery. One commenter asked if gillnet fishermen would be 
compensated for VMS if gillnet gear is banned. Another commenter noted 
that gillnet boats should not have to carry VMS since it is an invasion 
of privacy and a waste of money to the fisherman and NMFS. 
Additionally, gillnet fishermen already have sufficient observer 
coverage. Another commenter noted that NMFS must place significant 
weight on protecting critically endangered right whales from 
entanglement and should therefore maintain the VMS requirement for all 
shark gillnet vessels.
    Response: As described in the comments above, NMFS has identified 
in the FEIS alternative B1, the No Action Alternative, as the preferred 
alternative, which would retain gillnets as an authorized gear type for 
the Atlantic shark fisheries. The requirements for VMS restrictions 
would continue under the current regulations. VMS is vital to fisheries 
management, enforcement, and safety. VMS is an important tool used to 
monitor fishing activities in time/area closures and during the North 
Atlantic right whale calving season to protect this endangered species. 
NMFS has several other VMS requirements in place for HMS vessels 
including BLL vessels in the vicinity of the mid-Atlantic shark closed 
area and all vessels with PLL gear on board year-round. Removing VMS 
requirements is beyond the scope of the proposed action and does not 
further the stated purpose and need. NMFS, therefore, did not include 
any change in VMS requirements from current regulations in the FEIS or 
this final rule.
    Comment 7: The State of South Carolina agrees with the proposed 
boundary for the prohibition for shark gillnet gear. In 2008, 
commercial fisherman in South Carolina landed 20,000 lbs ww of smooth 
dogfish primarily from bottom long lines while 7,384 lbs ww of 
blacknose sharks were landed, with only 372 lbs ww of these reported 
from gillnets. Most catches of smooth dogfish in South Carolina occur 
in the winter when interactions with whales should be less likely.
    Response: NMFS would like to thank the State of South Carolina for 
submitting information on the commercial fishing landings in their 
State waters. After reviewing the data from the 2005-2008 Shark Gillnet 
Observer Program, which seems to indicate that gillnet fishermen may be 
able to target certain species and avoid others, NMFS has decided to 
change the preferred alternative from B3 in the DEIS, which would have 
banned gillnets from South Carolina south, to the No Action 
alternative, B1 in the FEIS, which would continue to allow all of the 
current authorized commercial fishing gears for sharks, including 
gillnets. Smooth dogfish would be allowed to be landed with all current 
authorized gear types. The FEIS carries forward as a reasonable 
alternative available for selection by the decision maker, the ban on 
gillnet as an authorized gear in alternative B3. Neither the FEIS or 
this final rule changed as a result of this comment. However, as noted 
above, NMFS changed the selected alternative in the FEIS and made 
conforming changes in Amendment 3 and this final rule as a result of 
other comments on this issue.
    Comment 8: NMFS received several comments regarding the overlap of 
the SCS gillnet fishery with other gillnet fisheries in the southeast 
region. Comments included: The NMFS proposal will force effort into 
other gillnet fisheries (e.g., kingfish fishery); NMFS needs to know 
the number of blacknose shark catches in the mackerel fishery and how 
that relates to the 22 percent mortality of blacknose shark by 
gillnets; if NMFS is taking the bulk of gillnet effort away, why not 
let mackerel fishermen keep blacknose sharks; NMFS should eliminate 
blacknose shark landings and allow mackerel fishermen to land other 
SCS; and, NMFS should collect data on discards in the mackerel fishery.
    Response: NMFS recognizes that fishermen may adapt in different 
ways to new regulations placed on a fishery, which may include 
increasing their effort in other fisheries. NMFS continues to collect 
fishery-dependent and fishery-independent data from all Federally 
managed fisheries including data on landings, discards, and bycatch. 
While the measures implemented in this amendment only pertain to the 
Atlantic shark fisheries, NMFS considers cumulative impacts on other 
fisheries and fishery participants when choosing preferred 
alternatives. Based on the most recent data, which indicates that 
gillnet fishermen may be able to target certain species with gillnet 
and avoid others, NMFS changed the preferred alternative from B3 in the 
DEIS, which would have eliminated gillnet gear as an authorized gear, 
to alternative B1 in the FEIS, the No Action alternative, which retains 
gillnet gear as an authorized gear in the Atlantic shark fishery. Also, 
under the new preferred alternative in the FEIS, A6, incidental catches 
of blacknose sharks will continue to be allowed. NMFS made changes in 
the preferred alternative from the DEIS to the FEIS based on this and 
similar comments and made conforming changes in the Final Amendment 3 
and this final rule.

C. Commercial Pelagic Shark Effort Controls

    Comment 1: NMFS should prefer the No Action alternative C1. 
Shortfin mako sharks are underutilized and NMFS should not propose any 
measures.
    Response: Based upon the 2008 ICCAT stock assessment for shortfin 
mako sharks, NMFS has determined that the North Atlantic population is 
experiencing overfishing. Under the Magnuson-Stevens Act, if NMFS 
determines that a fishery is overfished or approaching an overfished 
condition due to excessive international fishing pressure and there are 
no management measures to end such overfishing in an international 
agreement to which the United States is a party, it must take action at 
the international level to end overfishing (16 U.S.C. Sec. Sec.  1854, 
1854 note). The ICCAT stock assessment did not provide a recommended 
TAC or mortality reductions to prevent overfishing of shortfin mako 
sharks, making it difficult to set a quota or other limit to prevent 
overfishing. Because there are currently no ICCAT measures to end 
overfishing of shortfin mako sharks and U.S. shortfin mako shark 
landings have comprised approximately nine percent of international 
landings from 1997 through 2008, domestic reductions of shortfin mako 
shark mortality alone would not end overfishing of the entire North 
Atlantic stock. Therefore, NMFS believes that ending overfishing and 
preventing an overfished status would be better accomplished through 
international efforts.
    Comment 2: NMFS received many comments regarding the minimum size 
alternatives for shortfin mako sharks (alternative C4). These comments 
included: In order to reduce the risk of overfishing of the shortfin 
mako, the Environmental Protection Agency (EPA) recommends including a 
measurable alternative, such as alternative C4a, along with preferred 
alternatives C5 and C6; there should be a minimum size limit 
restriction of 73 inch fork length (FL) (185.4 cm FL) for the 
commercial harvest of shortfin mako with a

[[Page 30495]]

retention limit of 3 fish per trip; the size limits for shortfin mako 
shark should be changed to 108 inches FL (274.3 cm FL) in the 
commercial fishery; there should be a 72 inch FL (182.9 cm FL) min size 
for recreational and commercial fisheries; since it is indicated that 
the commercial fishery lands so few shortfin mako sharks below the 
recreational minimum size, implementing that minimum size should have 
minor economic impact on commercial fishermen, yet would have a 
positive ecological impact on the shortfin mako stock; and NMFS should 
not establish a commercial minimum size for shortfin mako sharks as 
that management measure would present safety at sea issues.
    Response: NMFS analyzed applying commercial size limits in the 
shortfin mako fishery according to the size at which 50 percent of 
males reach sexual maturity (22 in IDL; equivalent to 73 in FL) and the 
size at which 50 percent of females reach sexual maturity (32 IDL; 
equivalent to 108 in FL). Using data from pelagic longline (PLL) 
fishery observers and PLL logbook data, NMFS estimated the average 
number of additional shortfin mako sharks that would be released alive 
according to the proposed 22 in IDL and 32 in IDL size limits to be 89 
and 5 shortfin mako sharks, respectively. Despite the potentially 
minimal economic impacts of imposing a commercial size limit for 
shortfin mako sharks, NMFS concluded that neither of the size limits 
would dramatically reduce shortfin mako shark mortality in the U.S. 
commercial fishery and that any mortality reductions would not be 
enough to end overfishing of this species. NMFS has decided to take 
action at the international level through international fishery 
management organizations to establish management measures to end 
overfishing of shortfin mako sharks. Based on the results of future 
ICCAT stock assessments of shortfin mako sharks, NMFS may consider and 
propose additional management measures for shortfin mako sharks as 
necessary.
    Comment 3: NMFS received numerous comments in support of, and in 
opposition to, the preferred alternative to work at the international 
level to end overfishing of shortfin mako (alternative C5).
    Response: The United States commercial harvest of Atlantic shortfin 
mako sharks has historically been incidental in the PLL fishery. NMFS 
determined that the U.S. contribution to North Atlantic shortfin mako 
shark fishing mortality is relatively low in comparison to the total 
fishing mortality on the North Atlantic stock. According to ICCAT 
shortfin mako landings estimates, the United States contributed less 
than 9 percent (3262 mt ww/36,397 mt ww = 8.6 percent) of the total 
North Atlantic shortfin mako shark fishing landings. As such, NMFS 
believes that the status of the stock is due to excessive international 
fishing pressure, and domestic reductions of shortfin mako shark 
mortality alone would not end overfishing of the entire North Atlantic 
stock. Therefore, NMFS has decided to take action at the international 
level through international fishery management organizations, 
consistent with section 304(i) of the Magnuson-Stevens Act, where 
countries that have large catches of shortfin mako sharks could 
participate in the establishment of management measures to end 
overfishing of shortfin mako sharks.
    Comment 4: NMFS should take action domestically, such as removing 
shortfin mako sharks from the pelagic shark species complex and placing 
it on the prohibited shark species list (alternative C3).
    Response: The U.S. commercial PLL fishery does not specifically 
target shortfin mako sharks and their harvest represents a small 
percentage of the overall fishing mortality for the North Atlantic 
shortfin mako shark stock. Moving shortfin mako sharks to the 
prohibited shark species list would increase the number of dead 
discards from the U.S. PLL fleet, as retention of shortfin mako sharks 
that come to the vessel dead would be prohibited. Additionally, 
reducing U.S. shortfin mako shark mortality alone would likely not be 
enough to end overfishing for this stock. For these reasons NMFS 
selected the preferred alternatives in the FEIS to work internationally 
to end overfishing of shortfin mako sharks, and to promote the live 
release of shortfin mako sharks domestically.
    Comment 5: NMFS received comments stating that commenters are 
troubled by NMFS' apparent belief that it need not implement strong 
measures to end domestic overfishing of shortfin mako because the bulk 
of the catch occurs at the international level. Section 304 of the 
Magnuson-Stevens Act does not prevent NMFS from taking immediate action 
at the domestic level to prevent overfishing by U.S. vessels. Moreover, 
the Magnuson-Stevens Act section 303 specifies that all fishery 
management plans, including those applicable to species that are 
managed under international agreements, have effective ACLs and AMs by 
2010 or 2011 unless the agreement specifies a different deadline. 
Nothing in the Magnuson-Stevens Act requires NMFS to avoid taking 
action on the domestic front simply because applying the required 
measure will not instantaneously or singlehandedly end overfishing. The 
United States must take a leadership role in ensuring the sustainable, 
scientific management of international fisheries, both by promoting 
these measures internationally and implementing them at home.
    Response: There are several strict measures (e.g., landings quota, 
fins attached provision) that shortfin mako sharks are managed under 
domestically, and the United States is considered a leader in shark 
fishery management. Amendment 3 also includes mechanisms for specifying 
ACLs and establishing AMs for Atlantic sharks. NMFS believes that 
taking action at the international level through international fishery 
management organizations to establish management measures to end 
overfishing of shortfin mako sharks is the most effective way to end 
overfishing of shortfin mako sharks in the long term without causing 
significant economic impacts to domestic fishermen in the short term. 
Sections 102 and 304(i) of the Magnuson-Stevens Act encourage this 
approach, particularly for species approaching an overfished condition 
due to excessive international fishing pressure when there are no 
management measures to end overfishing under an international agreement 
to which the United States is a party. The shortfin mako shark is part 
of the pelagic species complex, which currently has defined criteria 
for MSY, OY, and status determination. NMFS has implemented measures 
that limit commercial harvest through quotas and trip limits for 
incidental permit holders that act as measures equivalent to ACLs and 
AMs, respectively. The 2008 ICCAT SCRS stock assessment did not 
recommend a TAC or necessary mortality reductions for shortfin mako 
sharks. Therefore, it is difficult to determine appropriate catch 
levels that would help to stop overfishing or be overly restrictive to 
U.S. fishermen, putting them at a disadvantage compared to 
international fishermen. NMFS feels that international cooperation is 
essential at this time in order to determine the level of catch that 
would stop overfishing on the entire Atlantic stock.
    Comment 6: NMFS received several comments regarding the proposed 
alternative to promote the live release of shortfin mako sharks 
(alternative C6). One commenter stated that about 90 percent of the 
shortfin mako sharks that are caught on longlines come to the vessel 
alive and asked how NMFS

[[Page 30496]]

would promote the release of shortfin mako sharks. Another commenter 
questioned the effectiveness of this alternative and questioned the 
practicability of advising fisheries to release saleable sharks even 
though they may not be the target of the fisheries that are largely 
targeting swordfish and tuna. Another commenter stated they did not 
support alternative C6 because there is no evidence that the 
alternative will be successful especially given that NMFS recognizes 
that discards of shortfin mako sharks are rare because their meat is 
highly valuable. The State of Georgia commented that it is unclear how 
alternative C6 would impact the meat quality of the shortfin mako kept. 
Some commenters noted their support for alternative C6. One commenter 
stated that NMFS should promote the live release of shortfin mako 
sharks, but should not make it a requirement, and that it is common for 
the distant water fleet to release live sharks.
    Response: According to the PLL observer program reports from 1992-
2006, 68.9 percent of shortfin mako sharks are brought to the vessel 
alive and 30.1 percent come to the vessel dead. Live release of 
shortfin mako sharks would be voluntary under this action and could be 
promoted using current HMS outreach mediums (e.g., Web site, e-mail 
listserv, mailings) along with others that have yet to be determined. 
This would allow NMFS to communicate the current status (overfishing 
occurring) of the North Atlantic shortfin mako shark stock in the hopes 
that fishermen will voluntarily reduce commercial fishing mortality to 
avoid a future change in stock status (overfished) that could lead to 
more restrictive measures. Because additional outreach efforts would 
likely be developed over time, NMFS is unable to predict how they will 
impact shortfin mako shark mortality in the commercial fishery. NMFS is 
unaware of any price differential between shortfin mako sharks that 
arrive at the vessel alive or dead, and this action is not expected to 
impact shortfin mako meat quality or ex-vessel prices.
    Comment 7: NMFS received multiple comments regarding the shortfin 
mako stock assessment. Some commenters stated that the United States 
needs to perform a stock assessment domestically for shortfin mako 
sharks, separate from the ICCAT assessment. Other commenters asked who 
conducted the stock assessment and if it was done the same way as other 
shark stock assessments. One commenter stated that he is concerned with 
the doubling of the age of maturity and the length of life of the 
female shortfin mako, while the male shortfin mako did not seem to 
change in demographics much at all. Another commenter felt that the 
data used in the stock assessment is outdated and has been flawed for 
years now. NMFS does not use real time data such as the 2009 season. 
The shortfin mako shark population has not changed drastically in the 
past 8 years.
    Response: The North Atlantic shortfin mako shark stock assessment 
is conducted by ICCAT's SCRS on an international level because of the 
highly migratory nature of the stock between international 
jurisdictions. The ICCAT stock assessment uses shortfin mako data from 
all reporting countries. Therefore, some of the data and assessment 
approaches used in the ICCAT SCRS shortfin mako shark assessment may 
differ from the data and approaches used in domestic shark assessments, 
which are conducted through the Southeast Data, Assessment, and Review 
(SEDAR) process. In either case, NMFS believes that the data and 
approaches used in these shark stock assessments represent the best 
available science. Any changes in shortfin mako size at maturity 
estimates occurred due to new scientific information, which is 
considered the best available science at this time.

D. Recreational Measures for SCS

    Comment 1: NMFS should implement alternative D2 to modify the 
minimum size limit for recreationally caught blacknose sharks.
    Response: Alternative D2 would modify the minimum recreational size 
for blacknose sharks based on their biology from 54 inches FL to 36 
inches FL. The new restriction would lower the current minimum size for 
blacknose sharks and could lead to increased landings of blacknose 
sharks. In order to achieve the TAC recommended by the 2007 blacknose 
shark stock assessment, NMFS would need to reduce overall blacknose 
mortality. Since decreasing the minimum size for blacknose sharks could 
result in increased landings of blacknose sharks, NMFS did not select 
this alternative at this time. NMFS carried this alternative forward 
for full consideration in the FEIS but did not identify it as the 
preferred alternative or select it as an element of Final Amendment 3.
    Comment 2: The State of South Carolina and others support the 
change in the recreational bag limit for Atlantic sharpnose sharks from 
one per person per day to two per person per day, particularly within 
the South Atlantic region (alternative D3). The Atlantic sharpnose was 
listed as not overfished with no overfishing occurring and the SCS 
quota has also been consistently under harvested in the South Atlantic 
region. Increasing retention limits for Atlantic sharpnose could 
mitigate the economic impacts of SCS quota reductions. NMFS has listed 
the Atlantic sharpnose as a readily identifiable species, and 
increasing their recreational bag limit should have no negative impact 
on sandbar, dusky, or blacknose sharks.
    Response: NMFS thanks the State of South Carolina for submitting a 
comment and recreational catch data. Alternative D3 would increase the 
retention limit for Atlantic sharpnose sharks based on current catches 
and stock status. Based on the 2007 stock assessment for Atlantic 
sharpnose, the biomass for Atlantic sharpnose sharks is falling towards 
the maximum sustainable yield threshold. While the stock is not 
currently overfished or experiencing overfishing, the latest stock 
assessment suggests that increasing fishing effort, such as increasing 
the retention limit of Atlantic sharpnose sharks, could result in an 
overfished status and/or cause overfishing to occur. Thus, since 
increasing the retention limit for Atlantic sharpnose could result in 
increased fishing effort and result in negative ecological impacts for 
the stock, NMFS did not implement this alternative. While NMFS carried 
Alternative D3 forward for full consideration as a reasonable 
alternative in the FEIS, it did not select it as part of Final 
Amendment 3.
    Comment 3: NMFS received numerous comments regarding the proposed 
alternative to prohibit the recreational retention of blacknose sharks 
(alternative D4). Commenters stated that few recreational fishermen 
target blacknose and since they rarely reach the 54-inch minimum size, 
Alternative D4 would likely have no impact. Some commenters were 
concerned that prohibiting the retention of blacknose sharks in the 
recreational fishery, while allowing retention in the commercial 
fishery, equates to an allocation decision giving 100 percent of the 
quota to one sector. Other commenters stated that there was no reason 
recreational anglers should be allowed to retain a species that is 
overfished. The State of South Carolina commented that NMFS should 
implement alternative D4 because this action will provide additional 
protection for blacknose sharks in Federal and State waters and help 
educate the public and fishermen as to the precarious status of the 
overall blacknose shark population. The State of Georgia does not 
support alternative

[[Page 30497]]

D4 since the current size limits in place under the FMP already afford 
adequate protection for blacknose sharks. Georgia commented that NMFS 
should look at the recently enacted management of the coastal States 
relative to shark species and determine where the problems with 
recreational retention of blacknose sharks are occurring. Georgia 
supports alternative D1, which would be consistent with the State 
regulations to the maximum extent practicable. The State of Florida 
commented that NMFS should not prohibit the retention of blacknose 
sharks in the recreational fishery, and should, instead, work on other 
regulations to end overfishing of blacknose sharks. The State's current 
shark regulations provide conservation and management measures that 
permit a reasonable and sustainable annual harvest, while additional 
Federal restrictions are not warranted for State waters.
    Response: NMFS agrees that few recreational fishermen target 
blacknose sharks. Based on public comments and the fact that current 
recreational size limits afford adequate protection for blacknose 
sharks, NMFS changed the preferred alternative from alternative D4 in 
the DEIS, which would have prohibited blacknose sharks, to D1 in the 
FEIS, the No Action alternative, which maintains the current 
recreational size and bag limits. NMFS will maintain the existing 
recreational retention limits for SCS. Recreational anglers are 
currently allowed one authorized shark per vessel per trip (including 
SCS). Also, they are allowed 1 bonnethead shark and 1 Atlantic 
sharpnose shark per person per trip. In addition, there is a 
recreational minimum size of 54 inches (4.5 ft) FL, which does not 
apply to Atlantic sharpnose or bonnethead sharks allowed per person per 
trip. Most blacknose sharks do not reach the current Federal minimum 
size of 54 inches FL, therefore, it is presumed that most recreational 
blacknose shark landings currently occur in State waters, where size 
and retention limits for blacknose sharks may be less restrictive than 
Federal regulations. In the Atlantic Ocean, under the ASMFC Interstate 
Coastal Shark FMP there is currently no minimum size limit for 
blacknose sharks. Because the Federal minimum size limit of 54 inches 
FL, acts as a de facto retention prohibition, and after evaluating 
public comments on the DEIS, NMFS decided to change the preferred 
alternative in the FEIS to alternative D1. However, NMFS asks each 
State to implement measures consistent with the current Federal 54 inch 
FL size limit to help reduce recreational mortality in State waters and 
meet rebuilding targets for blacknose sharks. Depending on the results 
of the upcoming blacknose shark stock assessment, NMFS may consider 
prohibiting recreational retention of blacknose sharks in future 
actions. Thus, at this time, NMFS believes that these current 
regulations will continue to provide adequate protection for blacknose 
sharks in the recreational fishery. However, it may be necessary to 
increase outreach to recreational fishermen on the identification of 
blacknose sharks so those that are caught can be released in a manner 
that maximizes survival of this species. It may also be necessary to 
work with States to ensure consistent regulations and enforcement.
    Comment 4: If NMFS prohibits the retention of blacknose sharks in 
the recreational fishery, how will this impact ASMFC member States?
    Response: If NMFS adds a particular species to the prohibited 
species list, according to the ASMFC Interstate Coastal Shark FMP, the 
member States would need to implement management measures that would 
provide a conservation equivalency for blacknose sharks or States could 
decide to mirror NMFS regulations. However, in the DEIS, NMFS was not 
proposing to add blacknose sharks to the prohibited species list. 
Rather, in the DEIS, NMFS proposed not authorizing recreational 
possession of blacknose sharks. Thus, under the proposed management 
measure in the DEIS, ASMFC regulations would not be affected unless 
ASMFC took action to be consistent with Federal regulations.
    Comment 5: Recreational fishermen cannot reliably identify 
blacknose sharks. If the retention of blacknose sharks is prohibited in 
the recreational fishery, NMFS will need to implement an outreach 
program to educate recreational anglers.
    Response: Based on public comments and the fact that current 
recreational size limits afford adequate protection for blacknose 
sharks, NMFS changed the preferred alternative from alternative D4 in 
the DEIS, which would have prohibited blacknose sharks, to D1 in the 
FEIS, the No Action alternative which maintains the current 
recreational size and bag limits. Currently, NMFS has recreational 
shark identification placards that categorize the differences between 
the recreational sharks. The placards can be attained on the HMS Web 
site (http://www.nmfs.noaa.gov/sfa/hms/sharks/) or by contacting the 
HMS division at 301-713-2347. In the future, NMFS could cooperate with 
States to increase identification of this species in State waters as a 
larger portion of the recreational catch of blacknose sharks occurs in 
State waters.

E. Recreational Measures for Pelagic Sharks

    Comment 1: NMFS received comments in support of the No Action 
alternative (alternative E1).
    Response: Based on the 2008 ICCAT SCRS stock assessment for 
shortfin mako sharks, NMFS has determined that the North Atlantic 
population is experiencing overfishing. Under the Magnuson-Stevens Act, 
if NMFS determines that a fishery is overfished or is approaching an 
overfished condition due to excessive international fishing pressure 
and there are no management measures to end such overfishing in an 
international agreement to which the United States is a party, it must 
take action at the international level to end overfishing (16 U.S.C. 
1854, 1854 note). The ICCAT stock assessment did not recommend a TAC or 
mortality reductions to prevent overfishing of shortfin mako sharks, 
making it difficult to set a quota or other limits to prevent 
overfishing. Because there are currently no ICCAT measures to end 
overfishing of shortfin mako sharks, and U.S. shortfin mako shark 
landings have comprised approximately nine percent of international 
landings from 1997 through 2007, NMFS believes that taking action on an 
international level to end overfishing of shortfin mako sharks is 
necessary at this time.
    The No Action alternative would allow the recreational harvest of 
one shortfin mako shark greater than 54 inches FL per vessel per trip. 
The decision to work on an international level to end overfishing and 
promote the live release of shortfin mako sharks will not change the 
current recreational shortfin mako shark size or bag limits.
    Comment 2: NMFS received several comments regarding the minimum 
size for recreational shortfin mako fishing (alternative E2). Comments 
included: Recreational limits for shortfin mako should be one fish per 
trip of any size; we are requesting a bag limit of two mako sharks and 
a minimum size of 72 inches FL (182.9 cm FL)--this minimum size should 
apply to all fishermen, recreational and commercial; NMFS should 
implement a realistic minimum size like the minimum length requirement 
of 66 inches (167.6 cm) in the Annual Mako Mania Tournament; and NMFS 
should adopt alternative E2b, which increases the minimum size for 
recreational fishers from 54 to 73 inches FL--this coupled with the

[[Page 30498]]

preferred alternatives for shortfin mako management, represent an 
integrated strategy that will immediately reduce shortfin mako harvest 
while aspiring to make long-term, systemic changes in both 
international management of and domestic attitudes toward the shortfin 
mako fishery.
    Response: Two size limits were analyzed for the recreational 
shortfin mako shark fishery based on the estimated size of sexual 
maturity of females (108 inches FL) and the estimated size of sexual 
maturity of males (73 inches FL). Large Pelagic Survey (LPS) data from 
2004 to 2008 was used to estimate the impact of the proposed size 
limits on recreational shortfin mako shark landings from tournament and 
non-fishing tournament activities. This analysis found that 99.5 
percent of all recreational landings fell under the proposed 108 inch 
FL size limit, and 60.3 percent of all recreational landings fell under 
the proposed 73 inch FL size limit. The 73 inch FL size limit would 
have a greater impact on non-tournament landings, as 81 percent of the 
non-tournament landings fell under the 73 inch size limit compared to 
51.7 percent of the tournament landings. Implementing either of these 
size limits would reduce a large percentage of shortfin mako shark 
landings from a fishery that contributes a small percentage of the 
overall North Atlantic shortfin mako shark landings, would likely not 
end overfishing on the stock, and could have negative social and 
economic impacts. Therefore, NMFS believes that ending overfishing and 
preventing an overfished status would best be accomplished through 
development of management measures at the international level to be 
adopted and implemented by the United States and other nations.
    Comment 3: NMFS received several comments, including from the State 
of South Carolina, in support of the proposed alternatives E3 and E4. 
Commenters felt that those measures should assist in overall shortfin 
mako recovery while not becoming overly burdensome to the U.S. sector 
of the fishery that is not chiefly responsible for the current stock 
status. However, NMFS also received several comments that did not 
support the proposed alternative. These commenters noted that with 
recreational fishing tournaments actively targeting shortfin mako 
sharks, offering large prizes for their capture, and placing a high 
value on retaining them as trophies, it is difficult to see how 
promoting a voluntary live release measure will have any effect on the 
species' mortality. These commenters also note that shortfin mako 
sharks are highly valued, both as one of the few sharks generally 
deemed ``edible'' and as a recognized ``trophy'' to be weighed and 
displayed upon capture. Operators of for-hire vessels are unlikely to 
release a legal-sized mako over the objections of their fares. While a 
significant proportion of the recreational shark fishery is comprised 
of anglers who say they practice catch-and-release, exceptions to that 
general practice are often made when a shortfin mako is brought to 
boatside.
    Response: NMFS agrees that working on an international level to 
reduce overfishing and promoting the live release of shortfin mako 
sharks is the best course of action to take at this time. Because the 
United States contributes very little to shortfin mako shark mortality 
in the North Atlantic, ending overfishing and preventing an overfished 
status may be better accomplished through international efforts with 
other countries that have large takes of shortfin mako sharks. NMFS 
believes that this action is appropriate at this time rather than 
implementing restrictive management measures unilaterally, which could 
unilaterally disadvantage U.S. fishermen. Promoting the release of 
shortfin mako sharks that are brought to the vessel alive, and the NMFS 
Code of Angling Ethics (64 FR 8067), could result in the reduction of 
fishing mortality of shortfin mako sharks and thus, have positive 
ecological impacts for this species. In promoting the live release of 
shortfin mako sharks, recreational fishermen will have the opportunity 
to reduce shortfin mako shark mortality with the intent to maintain the 
stock and avoid an overfished determination, which could lead to new 
restrictions on the U.S. recreational fishery. Outreach efforts will be 
developed over time, therefore, NMFS is unable to predict how they will 
impact shortfin mako shark mortality in the recreational fishery.
    Comment 4: NMFS should implement alternative E5, prohibit landing 
shortfin mako sharks in recreational fisheries, or at least prohibit 
landings in fishing tournaments. NMFS acknowledges that shortfin mako 
sharks could meet two of the most important of the four criteria that 
lead to being listed as a prohibited species (i.e., there is sufficient 
biological information to indicate the stock warrants protection and 
the fact it resembles other prohibited species). NMFS has rejected this 
alternative simply because it would have a significant negative effect 
on commercial fishery revenue (over a quarter of a million dollars 
annually) and it would inhibit expansion of the pelagic longline fleet. 
Further, NMFS speculates that prohibiting retention could result in 
increased dead discards. This rationale is inadequate.
    Response: Placing shortfin mako sharks on the prohibited species 
list would result in a recreational catch and release fishery for this 
species. NMFS decided not to prohibit landing of shortfin mako sharks 
in the recreational fishery because, given the small numbers of 
shortfin mako sharks landed in the recreational fishery in comparison 
to international landings, prohibiting the possession of U.S. caught 
shortfin mako sharks is unlikely to end overfishing on the stock, and 
because of the importance of shortfin mako sharks in recreational 
fishing tournaments. If shortfin mako are prohibited in the commercial 
fishery, increases in dead discards mainly apply to the commercial PLL 
fleet, where over 30 percent of shortfin mako caught are dead at 
haulback. In the recreational fishery, post-release mortality rates for 
shortfin mako sharks are generally believed to be low when injuries 
from hooking and releasing the shark are minimized, therefore, NMFS 
would not anticipate a significant increase in dead discards with a 
recreational shortfin mako shark retention prohibition. NMFS believes 
that the preferred alternatives, to work internationally to end 
overfishing of shortfin mako sharks and to promote the live release of 
shortfin mako sharks domestically, are adequate at this time.
    Comment 5: The EPA notes that the DEIS is unclear regarding the 
impact of shortfin mako shark landings attributed to the recreational 
fishery in comparison to landings from the commercial fishery. 
Alternatives E2a and/or E2b, which are similar to the commercial size 
limit alternatives, should be preferred, since an increase in size 
limits could have significantly positive ecological impact upon this 
species and would lead to a large majority of the recreationally-caught 
shortfin mako sharks being released alive.
    Response: In the DEIS, NMFS calculated average annual recreational 
shortfin mako shark landings from ICCAT estimates from 1981 to 2007. 
Because there were no ICCAT landings estimates available for the 
commercial shortfin mako shark fishery from 1981 to 1991, the impact of 
the recreational fishery on shortfin mako shark mortality may have been 
inflated. In the FEIS, NMFS compares recreational and commercial ICCAT 
estimates of shortfin mako shark landings over years where data for 
both fisheries are available

[[Page 30499]]

(1992-2008). This analysis shows that shortfin mako shark landings from 
the U.S. commercial (109,611 sharks landed) and recreational (110,256 
sharks landed) fisheries are similar over that time period. 
Implementing the size limits proposed in Alternatives E2a or E2b will 
reduce a large percentage of shortfin mako shark landings from a 
fishery that contributes a small percentage of the overall North 
Atlantic shortfin mako shark landings. Therefore, implementing size 
limits would unnecessarily disadvantage U.S. fishermen in relation to 
those from other countries who also contribute to shortfin mako shark 
mortality. NMFS believes that ending overfishing and preventing an 
overfished status would best be accomplished through development of 
management measures at the international level to be adopted and 
implemented by the United States and other nations.
    Comment 6: NMFS received a comment that asked about the post-
release survival for shortfin mako sharks.
    Response: Scientific studies have not been conducted regarding the 
post-release survival of North Atlantic shortfin mako sharks caught in 
U.S. commercial or recreational fisheries, therefore, it is currently 
unknown for these fisheries. A study by Hight et al. 2007, estimated 
the post-release survival of shortfin mako sharks caught on PLL gear at 
approximately 80 percent. This research was conducted in the Pacific 
Ocean off of California using different gear (J hooks) and shorter soak 
times (~3 hours) than in the U.S. Atlantic PLL fishery. Therefore, it 
may not be representative of the post-release survival of North 
Atlantic shortfin mako sharks caught in the U.S. Atlantic PLL fishery. 
In the recreational fishery it is believed that post-release survival 
is very high, especially when injuries from hooking and releasing the 
shark are minimized and fishermen release sharks in a way that 
maximizes their survival.
    Comment 7: NMFS says that the U.S. catch proportion is less than 10 
percent. Last year, the data was extrapolated and the range was between 
4-5 percent. If that is correct, NMFS is overstating the relevancy of 
the U.S. catch to the entire Atlantic-wide mortality. The United States 
is not a big player in the shortfin mako shark fishery. Canada and 
Spain will determine the fate of shortfin mako sharks at ICCAT.
    Response: The proportion of U.S. shortfin mako shark catch referred 
to in the DEIS was calculated from estimated commercial shortfin mako 
shark landings and discards reported to ICCAT from 1997 to 2008, which 
is approximately 9 percent of the Atlantic-wide shortfin mako shark 
landings over that time period (3431 mt ww/39,769 mt ww = 8.6 percent). 
This indicates that the United States contributes a small proportion to 
the overall fishing mortality on the North Atlantic shortfin mako shark 
stock.
    Comment 8: Several commenters felt that the proposed alternatives 
would close the shortfin mako recreational fishery.
    Response: NMFS considered five alternatives for pelagic sharks in 
the recreational fishery, and only one, adding shortfin mako sharks to 
the prohibited species list, would prohibit recreational landings of 
shortfin mako sharks. The preferred alternatives in the FEIS, working 
on an international level to end overfishing and promoting the live 
release of shortfin mako sharks, will not prohibit landings of shortfin 
mako sharks or close the recreational fishery.

F. Smooth Dogfish

    Comment 1: NMFS received several comments in support of the No 
Action alternative (alternative F1) and mirroring ASMFC smooth dogfish 
regulations (alternative F3). For example, the State of North Carolina 
opposed the preferred alternative F2, and supported alternative F1 
under the smooth dogfish management measure. The State of Virginia and 
other commenters support Alternative F1 as their preferred option, but 
could also support Alternative F3. The State of Virginia believes 
Addendum I to the ASMFC Coastal Shark FMP is a compromise between the 
ease of species identification for Law Enforcement and the need by the 
commercial fishery to completely process smooth dogfish at sea due to 
their rapid spoilage. The State feels that the current ASMFC management 
regime for smooth dogfish should allow NMFS to take no action at this 
time (alternative F1) or to add smooth dogfish under NMFS management 
and mirror the provisions of the ASMFC Interstate Shark FMP 
(alternative F3). Similarly, the MAFMC supports the No Action 
alternative (alternative F1) since the fishery is not a growth fishery 
and landings have been stable. The MAFMC also commented that if no 
action (alternative F1) is selected, the Council would support 
requesting ASMFC to adopt mandatory dealer reporting requirements and 
establish a quota consistent with alternative F2a3. The MAFMC also 
noted that if NMFS determines that it will implement Federal 
management, then as a secondary choice the MAFMC supports alternative 
F3 for smooth dogfish.
    Response: Because smooth dogfish is not currently a Federally 
managed species and fishery data reporting is not required, catch, 
effort, and participant data are sparse. These smooth dogfish data 
limitations have led to an unknown stock status and an unknown 
condition of the fishery. One way to rectify these shortcomings and 
provide needed conservation and management of smooth dogfish is to 
bring the species under Federal management. The Magnuson-Stevens Act 
requires preventing overfishing while achieving optimum yield on a 
continuing basis. Collection of smooth dogfish fishery data will 
facilitate stock assessments and effort estimates and addressing 
overfishing and other mandates under the Magnuson-Stevens Act. NMFS did 
not prefer the No Action alternative (Alternative F1) because 
maintaining the status quo would perpetuate the unknown condition of 
the fishery. Furthermore, because the resource is available along most 
of the eastern U.S. coast and there is a market for the product, smooth 
dogfish effort could increase as other fisheries become more 
constrained.
    NMFS chose not to prefer Alternative F3, mirroring the ASMFC smooth 
dogfish measures, because the ASMFC plan contains some provisions that 
NMFS cannot implement and does not include others that NMFS must 
implement. On May 6, 2009, the ASMFC approved a smooth dogfish Addendum 
to the Atlantic Coastal Sharks FMP for public comment. Included within 
this Addendum is an exception for smooth dogfish to allow at-sea 
processing (i.e., removal of shark fins while still onboard a fishing 
vessel), removal of recreational retention limits for smooth dogfish, 
and removal of the two hour net-check requirement for shark gillnets. 
The at-sea processing would require a five-percent fin to carcass 
ratio, but would allow for the removal of fins at sea. The allowance 
for the removal of shark fins while still onboard a fishing vessel and 
the removal of the two hour net-check requirement differs from current 
Federal regulations for other shark species. NMFS considers the 
requirements for gillnet checks and maintaining shark fins naturally 
attached through offloading to be important to minimize impacts on 
protected resources and to prevent shark finning, respectively. NMFS 
recently implemented the fins attached regulation for all Atlantic 
sharks for enforcement and species identification reasons and does not 
favor creating a potential loophole that could hinder enforcement. In 
addition,

[[Page 30500]]

ASMFC has not established a quota or a permitting requirement for the 
smooth dogfish fishery. As noted above, NMFS is required to establish 
ACLs and AMs under the Magnuson-Stevens Act and believes that 
permitting is the first step to gaining information about the fishery. 
Thus, NMFS has decided not to mirror the ASMFC regulations at this 
time. Nonetheless, under alternative F2, NMFS will delay implementation 
of the management measures until the beginning of the smooth dogfish 
season in 2012 and, in the interim, continue to work with ASMFC and the 
MAFMC to ensure Federal and State regulations are consistent to the 
extent practicable.
    Requiring that fins remain naturally attached to the smooth dogfish 
carcass is important to NMFS for several reasons: To facilitate species 
identification; to maintain consistency with other shark regulations 
that require that the fins remain attached while keeping the carcass 
essentially whole; and to maintain consistency with the United States' 
international shark conservation and management positions. Identifying 
all sharks to the correct species is a vital step in vessel and dealer 
reporting. These reports are used to monitor catch levels in relation 
to quotas and to advise stock assessments. When ASMFC implemented their 
regulations allowing the removal of smooth dogfish fins during certain 
seasons, they only considered the potential overlap in species 
distribution between sandbar and smooth dogfish. They did not consider 
the potential overlap with many other species of sharks that NMFS 
manages including SCS and spiny dogfish and the potential for 
misidentification with these species. NMFS heard during the proposed 
rule comment period that participants in the smooth dogfish fishery 
fully process the fish into ``logs'' or fillets of meat at sea. 
Identifying the species of fully-processed carcasses from cuts of meat 
is very difficult. For this reason, for a number of years before first 
requiring that fins be attached in 2008, NMFS had prohibited the 
filleting of sharks at sea and required all sharks be landed as logs. 
In the 2006 Consolidated HMS FMP, NMFS took a further step of requiring 
that the second dorsal and anal fin be maintained on the dressed 
carcass. Furthermore, the ability to identify both carcasses and fins 
to the species level is critical for enforcing the prohibition on shark 
finning for all Federally managed Atlantic shark species. The most 
effective way for fishermen, dealers, and enforcement to properly 
identify both fins and carcasses is to require that fins remain 
naturally attached through offloading. Detached smooth dogfish fins can 
be difficult for most people to differentiate from other shark fins. 
Differentiating numerous detached smooth dogfish fins from other shark 
fins can be inefficient and impractical from an enforcement 
perspective, particularly in a high volume fishery.
    All sharks currently managed by the Secretary of Commerce 
(Secretary) (large coastal sharks, small coastal sharks, and pelagic 
sharks) must be landed with fins naturally attached. Deviating from 
this measure in the smooth dogfish fishery would introduce management 
inconsistencies and potential enforcement loopholes. The fins 
naturally-attached regulation is also consistent with the U.S. 
international position on shark conservation and management. Globally, 
shark finning is a serious threat to many shark species. The United 
States has co-sponsored fins-attached proposals and supported an 
international ban on the practice of shark finning and has recently 
proposed adding several species to the CITES Appendix II listing to aid 
in monitoring shark fin trade. An effective method to enhance the 
enforceability of a finning ban is to require that fins remain 
naturally attached to the shark carcass through offloading. In addition 
to this requirement, the United States also encourages maintaining the 
five percent fin-to-carcass ratio. The five percent fin-to-carcass 
ratio is a critical tool for dockside enforcement when enforcement 
officers are unable to monitor an entire offload, and enhances shark 
conservation efforts by allowing NOAA to utilize dealer landing records 
to detect potential shark finning violations post-landing for 
subsequent follow-up investigation. If domestic exemptions to the fins 
naturally attached regulation were implemented, it could undermine the 
United States' international position on the fins naturally attached 
policy and other shark conservation and management measures.
    Comment 2: Several commenters asked what would happen if NMFS 
decided not to implement management actions (alternative F1). They 
asked if it would that mean that the ASMFC would be the sole managers 
of smooth dogfish.
    Response: Whether NMFS decided to implement management measures or 
not, ASMFC regulations would not apply in Federal waters. The 
jurisdiction of ASMFC management plans only includes State waters, and 
the absence of a Federal management plan would not extend ASMFC's 
jurisdiction. While smooth dogfish are not currently managed at the 
Federal level, there are Federal regulations in place that apply to 
smooth dogfish fishing in the EEZ, including the Shark Finning 
Prohibition Act. This Act prohibits landing shark fins without the 
corresponding carcass and in excess of 5 percent of the carcass weight. 
If NMFS decides not to implement management measures, these Federal 
regulations will still apply. This comment did not require any revision 
in the FEIS.
    Comment 3: NMFS received comments supporting the proposed 
alternative (alternative F2), which would implement management measures 
in the smooth dogfish fishery. Several commenters noted that this 
alternative would also require issuance of Federal permits, which are 
essential in remedying the serious deficiencies in data and would lead 
to better stock assessments. The preferred alternative of Federal 
management has the added benefit of obtaining dealer reports and 
providing for Federal fishery observers aboard vessels targeting 
dogfish. The State of Georgia supported the proposed alternative and 
noted that as ASMFC has recognized the importance of smooth dogfish, it 
is only fitting that NMFS should also consider responsible management 
of this species in Federal waters.
    Response: NMFS believes that implementing Federal management 
measures, should the species be brought under NMFS management, would be 
an important first step in meeting its Magnuson-Stevens Act mandate to 
prevent overfishing while achieving, on a continuing basis, optimum 
yield. Achieving this mandate would require the collection of smooth 
dogfish fishery data to perform stock assessments and effort estimates. 
Federal permits, dealer reporting, and on board observers would provide 
valuable participant information and better characterize the nature of 
the fishery. The ASMFC's action to include smooth dogfish in the 
coastal shark management plan is further indication of emerging 
awareness that the species is in need of conservation and management 
measures. Due to the highly migratory nature of smooth dogfish and its 
large range, it would provide a positive ecological benefit across 
their range regardless of political boundaries. The DEIS identified 
alternative F2 as the preferred alternative and no change was made in 
the FEIS or this final rule except that the implementation of the 
measures under the preferred alternative would be delayed until the 
beginning of the smooth dogfish fishing season in 2012 to allow time 
for fishery

[[Page 30501]]

participants to adjust to the new requirements.
    Comment 4: NMFS received many comments specific to the 5 percent 
fin to carcass ratio for smooth dogfish, including that the 5 percent 
ratio is too low and that the ratio should be closer to 10-12 percent. 
The MAFMC commented smooth dogfish are unique in their fin to carcass 
ratio. They have two dorsal fins that are large enough to retain and 
sell. The carcasses are typically sold with the napes removed, rather 
than split, which significantly reduces the weight basis of the carcass 
and increases the fin to carcass ratio. The fins are removed with a 
straight cut, rather than the crescent cut required for other shark 
fins, thereby increasing its weight and the fin to carcass ratio. As a 
result, the fin to carcass ratio for smooth dogfish is typically 9 to 
10 percent if the two pectoral fins and two dorsal fins are retained. 
The tails are not typically retained due to their low value, but if 
they are retained, the total fin weight increases to 13 to 14 percent.
    Response: On December 21, 2000, the Shark Finning Prohibition Act 
(Pub. L. 105-557) (Act) was signed into law. The Act established a 
rebuttable presumption that any shark fins landed from a fishing vessel 
or found on board a fishing vessel were taken, held, or landed in 
violation of the Act if the total weight of shark fins landed or found 
on board exceeded five percent of the total weight of shark carcasses 
landed or found on board. It was implemented by NMFS through a final 
rule released in February 11, 2002 (67 FR 6124). Thus, any changes to 
the five percent ratio would have to be modified by Congressional 
action. NMFS does not have discretion to selectively implement the five 
percent fin to carcass ratio in certain shark fisheries. Furthermore, 
difficulty in abiding by the five percent fin to carcass ratio further 
supports NMFS' requirement that all smooth dogfish fins remain 
naturally attached to the carcass through offloading. Keeping the fins 
naturally attached to the carcass through offloading makes it easier 
for fishermen to comply with the Shark Finning Prohibition Act. In 
order to help fishermen document that sharks were landed with their 
fins attached NMFS modified the dealer reporting forms so that it can 
be clearly documented that the sharks were landed with fins attached. 
NMFS did not add an additional alternative to the FEIS or this final 
rule in response to this comment.
    Comment 5: The MAFMC encourages NMFS to address Section 307(1)(P) 
of the Magnuson-Stevens Act as it relates to the smooth dogfish 
fishery, and suggests exploring a Letter of Authorization for the 
fishery addressing the rebuttable presumption clause. The smooth 
dogfish fishery fully utilizes the carcasses, so there is no 
conservation purpose served for this species by the five percent limit 
fin to carcass ratio.
    Response: Section 307(1)(P) of the Magnuson-Stevens Act states that 
``[i]t is unlawful (1) for any persons to * * * (P)(i) remove any of 
the fins of a shark (including the tail) and discard the carcass of the 
shark at sea; (ii) to have custody, control, or possession of any such 
fin aboard a fishing vessel without the corresponding carcass; or (iii) 
to land any such fin without the corresponding carcass.'' The section 
continues that ``[f]or the purposes of subparagraph (P) there is a 
rebuttable presumption that any shark fins landed from a fishing vessel 
or found on board a fishing vessel were taken, held, or landed in 
violation of subparagraph (P) if the total weight of shark fins landed 
or found on board exceeds 5 percent of the total weight of shark 
carcasses landed or found on board.''
    As noted in the previous response, NMFS has no discretion to 
selectively implement the five percent fin to carcass ratio in certain 
shark fisheries, therefore, NMFS cannot issue Letters of Authorizations 
to exempt fishermen from complying with the Magnuson-Stevens Act and 
statutory requirements of the five percent fin to carcass ratio.
    Comment 6: NMFS received comments specific to the proposed 
requirement that smooth dogfish fins remain naturally attached to the 
carcass (alternative F2) including the requirement that smooth dogfish 
be landed with their fins naturally attached since allowing an 
exemption for smooth dogfish will undermine the overall management and 
protection of sharks. NMFS also received comments opposed to the 
actions including: The fins attached requirement will end the 
commercial smooth dogfish fishery and would have no conservation value 
for smooth dogfish; requiring fins remain naturally attached to the 
carcass in the summer will reduce the meat quality because fishermen 
will have to remove the fins in 95 degree heat while on the dock; 
requiring fins remain naturally attached to the carcass will cause the 
meat to spoil faster; NMFS stated that their intention was not to 
change the fishery, but all the proposed requirements, particularly 
requiring fins remain naturally attached, will change the fishery; NMFS 
should adopt a rule that mirrors the provisions approved by the ASMFC, 
which requires that the smooth dogfish fins need not be landed 
attached, except for the dorsal fin during the months of July through 
February; and, the fishery is a 98-percent directed fishery, with 
little or no by-catch of other shark species. The State of South 
Carolina recommended that NMFS consider allowing permitted commercial 
shark fisherman to process and remove fins from smooth dogfish at sea, 
with the exception of the 1st and 2nd dorsal fins. This would allow 
these landed sharks to be differentiated from other species, including 
sandbar sharks. The MAFMC commented that smooth dogfish flesh is 
uniquely soft and translucent, and is singular among shark species in 
its tendency to discolor if the fish is not promptly bled, thoroughly 
rinsed to remove any remaining blood, and iced. This unique attribute 
of the fish requires at-sea processing. The fins and tails have always 
been removed and, in some cases, the backs and fins are sold to 
different customers. Requiring the fins and tails to remain attached 
would substantially impede the bleeding and cleaning process that is 
essential to preventing discoloration and preserving the quality of the 
fish.
    Response: The FEIS acknowledges and considers the concerns raised 
in this comment with respect to potential difficulties resulting from 
the inability to completely process smooth dogfish at sea. However, 
requiring that fins remain naturally attached to the carcass 
facilitates species identification and prevents exceptions to the 
Federal prohibition on shark finning. The requirement also maintains 
consistency across all Secretary of Commerce-managed shark species in 
the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea and reflects the 
U.S. international position regarding shark conservation. While the 
fins naturally attached requirement will apply to Federal smooth 
dogfish fishing permit holders regardless of fishing location, the 
intent of the measure would not be to obviate the ASMFC measures, as 
suggested in one of the comments. The ASMFC and NMFS operate under 
different mandates, jurisdictions, and contexts (domestic and 
international). These differences sometimes result in, and can 
necessitate, different management measures.
    NMFS' intention, when implementing smooth dogfish management 
measures, is to minimize alterations to the fishery. As such, NMFS is 
delaying the effective date of the management measures under the 
preferred alternative in the FEIS until the beginning of the fishing 
season in 2012 to allow fishermen and dealers time to adjust to the new 
requirements. Smooth dogfish management measures will not be 
implemented until the 2012 fishing season, and NMFS believes that

[[Page 30502]]

the methods and techniques employed in other shark fisheries can be 
adopted in the interim. However, the practices currently employed in 
the fishery are sometimes in conflict with NMFS' shark conservation and 
management position and Congressional mandates such as the Shark 
Finning Prohibition Act. As noted in several of the comments above, 
requiring smooth dogfish fins to remain naturally attached to the 
carcass differs from the current practice in the fishery. As described 
in the response to a comment above, NMFS deemed that maintaining a 
fins-attached requirement would be critical for several reasons: (1) To 
facilitate species identification, (2) to maintain consistency across 
all Federally managed shark species, and (3) to maintain consistency 
with the U.S. and NMFS international position with regard to shark 
conservation and management. A potential NMFS requirement to land 
smooth dogfish with fins naturally attached would not prohibit at-sea 
processing methods currently in place in most other Atlantic shark 
fisheries that maximize meat quality, freshness, and processing 
efficiencies. It would remain legal to remove the shark's head and 
viscera for proper bleeding. To reduce dock-side processing needs, all 
fins could be partially cut at the base and only left attached via a 
small flap of skin. NMFS did not add an additional alternative to the 
FEIS or this final rule in response to this comment.
    Comment 7: NMFS received comments regarding the proposed quota for 
smooth dogfish (alternative F2a3). Numerous commenters stated that the 
proposed quota was too high for a species lacking a stock assessment 
and that has been categorized as near threatened by the International 
Union for the Conservation of Nature (IUCN). NMFS also received 
numerous comments stating that the proposed quota is too low such as: 
In the early 1990s, Virginia alone caught over a million pounds and 
North Carolina or New Jersey could easily take the proposed quota 
themselves in the next year or two without increasing effort. The 
amount of take in the fishery depends on whether the fish are available 
when the fishermen go out. The quota needs room for growth since there 
are a lot of fishermen targeting smooth dogfish. Several commenters 
stated that the data used to determine the quota were flawed since a 
lot of people are not reporting on the vessel trip reports (VTRs) and 
that NMFS needs to look at all sources and geographic regions 
(including the Gulf of Mexico) of mortality including trawl gear. NMFS 
also received a comment that NMFS should not set a smooth dogfish quota 
the first year and should set quota the second year based on landings 
data. The State of Virginia commented that the absence of a 
statistically sound time series of landings or any type of analytical 
stock assessment for smooth dogfish makes this quota alternative 
impractical. Quota-based management requires some current information 
on the status (biological) of the stock. The State of Virginia also 
noted that there are approximately twelve commercial fishermen that 
land in excess of 500 pounds of smooth dogfish during any one year from 
2004 through 2008 in Virginia. For the five year period of 2004 through 
2008, Virginia's smooth dogfish harvest totaled 2,316,648 pounds. A 
total of 1,140,809 pounds were harvested from State waters (49.2 
percent) and 1,175,839 pounds from Federal waters (50.8 percent). The 
State of South Carolina supports Federal management of smooth dogfish 
and the proposed method of determining the annual commercial and 
recreational landings, plus the addition of 6 mt ww of smooth dogfish 
to the present 60 mt ww quota for all sharks collected in exempted 
fishing programs. The State of Georgia supports the quota limit for the 
smooth dogfish fishery, since the logic used to calculate the quota 
appears sound at this time. The MAFMC states that NMFS commercial 
landings data shows zero smooth dogfish landings from Virginia for 
1996, while greater than 500,000 lbs are known to have been purchased 
by a single Virginia dealer in that year. The MAFMC recommended that 
the collection of fishery data through mandatory logbook reporting be 
initiated as soon as possible. The data collection will help develop a 
stock assessment.
    Response: The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (Pub. L. 109-479) added Section 303(a)(15) to the 
Magnuson-Stevens Act which requires all FMPs for Federally managed 
fisheries to establish a mechanism for specifying ACLs and to include 
AMs to ensure that ACL are not exceeded. The mechanism by which this 
requirement is applied to shark fisheries is detailed in Chapter 1 of 
the FEIS for Amendment 3, including the necessity to establish an 
annual commercial quota. Despite sparse smooth dogfish landings reports 
and the lack of a stock assessment, establishing an ACL to prevent 
overfishing would be a condition of bringing the species into the HMS 
FMP and under Federal management under the Magnuson-Stevens Act.
    Inline with the intention to minimize changes to the fishery, NMFS 
proposed to establish a quota that would allow current exploitation 
levels of smooth dogfish to continue. Although some changes to the 
fishery would be necessary, as noted above (e.g., fins naturally 
attached), the primary goal of the smooth dogfish portion of this 
amendment is to characterize and collect data on the fishery. This goal 
necessitates a quota near actual exploitation levels. Due to the lack 
of reporting requirements in the fishery, NMFS relied on available data 
to estimate current landing levels. Despite the lack of management, 
many fishermen in the mid-Atlantic region have been reporting their 
landings. Some of these fishermen have Federal permits for other 
species and are required to report all landings, including smooth 
dogfish, due to the regulations in those other fisheries. Other 
fishermen do not have Federal permits and report smooth dogfish 
landings voluntarily. These landings, and the number of vessels 
reporting these landings, have remained fairly constant since the late 
1990s. Existing sources, particularly the Atlantic Coastal Cooperative 
Statistics Program (ACCSP) for commercial catches across all gear 
types, offer insight into the current State of the fishery. NMFS used 
ACCSP data to estimate current landing levels and then used this 
estimate to establish an annual quota. In the DEIS, NMFS proposed a 
quota equal to the maximum annual landings between 1998 and 2007 plus 
one standard deviation in the ACCSP data. Setting the quota higher than 
maximum reported landings was intended to account for what NMFS 
believes to be significant underreporting due to the lack of smooth 
dogfish reporting requirements. During the public comment period, 
however, NMFS received numerous comments, as described above, that the 
proposed quota does not adequately account for underreporting. Several 
States provided State data that also indicated the sources NMFS used 
may be underreporting actual landings. Based on these comments and 
Southeast Fishery Science Center (SEFSC) advice, NMFS decided to 
deviate from the preferred alternative in the DEIS and to identify 
alternative F2a4, the quota equal to the annual maximum landings plus 
two standard deviations, or 715.5 mt dw (1,577,319 lbs dw), as the 
preferred alternative in the FEIS. NMFS believes that setting the quota 
at a level that accounts for current landings does

[[Page 30503]]

not threaten smooth dogfish stocks. A review of the reported landings 
does not indicate any immediate declining trend, and as noted by one of 
the commenters, the average size of landed smooth dogfish is 
increasing. Based upon these limited data and observations, there are 
few indications that the smooth dogfish stock is overfished and in need 
of an immediate reduction in mortality. In fact, based on the limited 
data available, smooth dogfish landings appear to have been stable 
since the mid-1990s. The IUCN status appears to be based upon the fact 
that smooth dogfish have an unknown stock status. The IUCN description 
of smooth dogfish notes that there is no stock assessment for the 
species. Regardless, NMFS does not rely on IUCN statuses when 
developing management measures, but rather uses peer-reviewed stock 
assessments and primary literature. Once more data is gathered on this 
species, NMFS could complete a stock assessment. NMFS would reassess 
the quota at that time and make any necessary changes.
    Comment 8: NMFS received several comments relating to the set-aside 
quota for research on smooth dogfish. One commenter noted that 
Alternative F2b1 provides for a ``set-aside'' quota for an exempted 
fishing program. It is appropriate for NMFS to establish this set-
aside, though clearly this set aside should be subtracted from the 
total quota and not provided as an additional quota. The State of South 
Carolina believes the quota for smooth dogfish landed in exempted 
fishing programs is adequate, and notes that they have several public 
aquaria and three to four researchers in the State who have permits to 
collect sharks. None of those permit holders have expressed concerns to 
the State about the proposed quota. The State of Georgia noted that the 
set aside amount for the exempted fishing program is reasonable.
    Response: NMFS identified the establishment of a separate smooth 
dogfish set-aside quota for the exempted fishing program of 6 mt ww as 
the preferred alternative in the FEIS. The set-aside quota for the 
exempted fishing permit (EFP) program is an important part of any 
fishery management plan. The EFP program facilitates research that can 
be used to inform management measures and provide data for stock 
assessment. Creating a separate and distinct set-aside quota from the 
principle quota ensures that research activities do not impede the 
commercial or recreational fisheries through quota limitations. As 
noted in the previous response, NMFS' intention when establishing the 
commercial quota was to set it at a level that would account for all 
annual commercial landings. For this reason, it is not prudent to 
subtract the set-aside quota from the overall commercial quota. Doing 
so would result in a smaller commercial quota that might not fully 
account for the current annual commercial landings. In the future, 
after performing a stock assessment and characterizing the fishery, 
adjustments could be made to the set-aside quota as well as the 
commercial quota.
    Comment 9: Any differences between the NMFS and ASMFC plans will 
complicate smooth dogfish fishing since fishermen will have a difficult 
time following the regulations. There must be coordination between 
ASMFC and NMFS.
    Response: On January 1, 2010, the ASMFC Coastal Sharks FMP, which 
includes smooth dogfish measures in Addendum I, was implemented across 
most of the Atlantic coast States. The ASMFC plan contains several 
measures that differ from NMFS', as detailed in the response to Comment 
1 of this section, resulting in a few inconsistencies between the two 
plans. NMFS recognizes the importance of consistent regulations between 
State and Federal waters for both stock health and ease of compliance. 
While complimentary ASMFC and NMFS plans are not possible at this time, 
NMFS will continue to work closely with the ASMFC toward similar 
management measures and will consider any future changes to the ASMFC 
plan to ensure measures are as consistent as possible between State and 
Federal waters. As additional data from the fishery becomes available 
and the fishery becomes more fully characterized, NMFS will have better 
information to inform collaboration and future management measures. 
NMFS is aware of and disclosed the potential inconsistencies between 
the ASMFC Coastal Shark FMP and Federal management of smooth dogfish 
under the Magnuson-Stevens Act in the FEIS.
    Comment 10: The State of Virginia noted that having fins attached 
would significantly change how the fishery is conducted and smooth 
dogfish fishermen would shift all their effort into State waters. By 
shifting effort from Federal to State waters, Alternative F2 provokes 
an unintended consequence of increasing the likelihood of interaction 
between smooth dogfish gear and several stocks of bottlenose dolphin 
that spend the majority of the year within State waters.
    Response: NMFS recognizes that differences in Federal and State 
smooth dogfish regulations could redistribute effort resulting in a 
fishery that is no longer equally divided between State and Federal 
waters. However, regardless of where fishing activities occur, 
protected resource interactions are a concern, and care must be taken 
to avoid or minimize impacts on marine mammals and sea turtles. In 
Federal waters, smooth dogfish fishermen will be required to abide by 
both the gillnet and other requirements in 50 CFR part 635 and with the 
regulations implemented under various Take Reduction Plans (TRPs) in 50 
CFR part 229 to minimize adverse impacts on protected resources. 
Although NMFS does not have jurisdiction over the smooth dogfish 
fishery in State waters, Section 118 of the Marine Mammal Protection 
Act (MMPA) tasks NMFS in the development and implementation of TRPs to 
reduce serious injuries and mortalities of marine mammal populations 
incidental to commercial fishing activities. These TRPs have numerous 
requirements to minimize impacts on marine mammal populations and are 
applicable in both State and Federal waters. The permitting requirement 
in the preferred alternative should enhance the ability of smooth 
dogfish fishermen to participate in these TRPs. Numerous TRPs exist, 
including the Bottlenose Dolphin Take Reduction Plan (BDTRP), which 
smooth dogfish fishermen will have to abide by if fishing in Virginia 
State waters. Specific regulations pertinent to the BDTRP can be found 
at 50 CFR 229.35. Any redistributed effort into Virginia's State waters 
affecting bottlenose dolphins will be addressed under the BDTRP or 
other applicable TRP.
    In addition, NMFS is currently engaged in formal Section 7 
consultation in accordance with the ESA, paragraph 7(a)(2), to 
determine the potential level of incremental effect that may arise as a 
result of the preferred management measures for smooth dogfish in the 
FEIS. NMFS has not yet issued a final BiOp for the smooth dogfish 
fishery. NMFS will review that BiOp once it is issued and supplement 
the analysis in this FEIS if the consultation reveals any new or 
significant effects with respect to the interaction between gillnet 
fishing for smooth dogfish and protected species that were not 
considered in the 2008 BiOp for Amendment 2 to the 2006 Consolidated 
HMS FMP. The FEIS incorporated by reference the 2008 BiOp for Amendment 
2 to the 2006 Consolidated HMS FMP. A detailed discussion of the 
effects of such management relevant to the shark fishery is included in 
that document. NMFS does not anticipate any

[[Page 30504]]

substantial change in impact to protected species since the measures 
proposed for smooth dogfish management are largely administrative, and 
thus unlikely to affect the manner and extent of fishing for smooth 
dogfish or redistribution of effort into other fisheries. NMFS assumes 
there is a correlation between fishing effort and protected species 
interactions. Since smooth dogfish management measures would establish 
a quota and permit requirement, fishing effort for smooth dogfish would 
be capped or slightly reduced with a corresponding diminishment in the 
possibility of increased protected resource interactions. In addition, 
increased observer data in the smooth dogfish fishery as a result of a 
Federal permit requirement would better characterize protected 
resources interactions with the smooth dogfish fishery.
    Comment 11: Florida fishermen catch smooth dogfish in the Tortugas 
and use them as bait because smooth dogfish are worthless. Gulf of 
Mexico fishermen catch them while grouper fishing. If you catch 5,000 
lbs of grouper, you might have about 50 lbs of smooth dogfish. The 
common length is 12-24'' and they are caught at the top of the 
continental shelf. NMFS should not include rules made for the mid-
Atlantic in the Gulf of Mexico. If smooth dogfish are causing problems 
in the mid-Atlantic, NMFS should establish separate regulations on 
them. Fishermen in the Gulf of Mexico cannot fish for anything without 
catching a few smooth dogfish. There are no smooth dogfish fisheries in 
the Gulf of Mexico.
    Response: Smooth dogfish is a widely distributed species, ranging 
from Massachusetts to South America including the Gulf of Mexico and 
Caribbean Sea (see Chapter 11 in the FEIS). Despite this wide 
distribution, the current fishery is concentrated in the Mid-Atlantic 
region, and no reports of commercial landings in the Gulf of Mexico 
could be found. Although there are no reported landings of smooth 
dogfish in the Gulf of Mexico, research trawls by the SEFSC have shown 
that they are present in the region including in Louisiana waters. 
Fishermen in the Gulf of Mexico that incidentally catch smooth dogfish, 
but do not retain the fish or parts of the fish, will not be required 
to abide by Federal smooth dogfish regulations or need to obtain a 
smooth dogfish permit.
    Under current Atlantic HMS regulations, it is illegal to catch 
sharks and use them as bait. If smooth dogfish were under Federal 
management, this requirement would apply to smooth dogfish as well. The 
known distribution of smooth dogfish, validated by comments such as 
this one, necessitates a central, unified management authority of the 
species. The fact that a market exists for smooth dogfish, and that 
they are regularly encountered in places other than the Mid-Atlantic, 
make management measures and data collection in the fishery important. 
Even though fishermen do not currently land smooth dogfish in the Gulf 
of Mexico, the presence of both the resource and a market means a 
fishery could develop in that region, particularly if other more 
profitable fisheries are reduced or limited. NMFS did not add an 
alternative in the FEIS or this final rule to separate the smooth 
dogfish into separate management units or fisheries in response to this 
comment.
    Comment 12: Why will recreational fishermen be required to have a 
smooth dogfish permit? Would the recreational permit for smooth dogfish 
be the same as the current HMS recreational permit? Most of the smooth 
dogfish are caught incidentally. No one targets smooth dogfish 
recreationally. The State of South Carolina notes that few smooth 
dogfish are landed in their recreational fishery as that species 
primarily occurs off our coast in the winter months when angler effort 
is decreased.
    Response: Efforts to characterize the smooth dogfish fishery must 
include both commercial and recreational fishermen to adequately 
estimate effort and catch. As when recreationally fishing for other 
Atlantic sharks, smooth dogfish recreational fishermen would need to 
obtain an HMS Angling permit and charter/headboats that take smooth 
dogfish would need to obtain an HMS Charter/Headboat permit. Those who 
already hold this permit will not need an additional permit to fish for 
smooth dogfish recreationally.
    Comment 13: The State of South Carolina commented that unless 
future stock assessments indicate that smooth dogfish are overfished 
the current commercial and recreational size and retention limits seem 
appropriate.
    Response: NMFS agrees that at this time there is no justification 
for imposing a size or retention limit for smooth dogfish in the 
recreational or commercial fishery. This is inline with the intent to 
minimize changes to the fishery while collecting data to characterize 
it. Currently, the fishery does not operate under any type of size or 
retention limit restrictions. After a stock assessment is completed on 
the species, changes could be necessary.
    Comment 14: A few commenters noted that the EFH for smooth dogfish 
proposed by NMFS looks appropriate. The State of South Carolina agrees 
that the occurrence data presented is where dogfish are captured within 
U.S. waters. However, the State notes that there is a discontinuity 
between the Gulf of Mexico and the Atlantic coast groups (as presented 
in Figure 11.1 in the FEIS) that may indicate further investigation of 
species characteristics and distribution is warranted.
    Response: Identifying and describing EFH for Federally managed 
species is a statutory requirement mandated by the Magnuson-Stevens 
Act. As detailed in Chapter 11 of the FEIS, NMFS used a variety of 
research survey datasets to identify and describe the EFH around 
positive smooth dogfish observations. Although NMFS relied on 
geographically limited datasets, the resulting EFH designation closely 
matches literature descriptions of smooth dogfish distribution, 
boosting confidence in the determination. The Northeast Fisheries 
Science Center (NEFSC) offered suggestions on available research survey 
datasets. Once incorporated in the analyses used in the FEIS, these 
datasets contributed to a more robust smooth dogfish designation than 
that proposed in the DEIS of Amendment 3. The discontinuity in EFH off 
the Georgia and eastern Florida coasts will require further analysis 
due to the lack of smooth dogfish data in the area. However, literature 
on smooth dogfish distribution also note an absence of the species in 
that area. As noted, NMFS incorporated changes to its identification 
and description of EFH in the FEIS based on this and similar comments.
    Comment 15: NMFS stated in Amendment 3 that there is not sufficient 
information for smooth dogfish EFH. If that is the case, why did NMFS 
propose EFH?
    Response: As noted in the previous response, identifying and 
describing EFH for Federally managed species is a statutory requirement 
mandated by the Magnuson-Stevens Act. NMFS is confident that the 
designated smooth dogfish EFH is accurate, particularly after 
incorporating the datasets suggested by the NEFSC. NMFS will continue 
to work to ensure that EFH for all HMS species utilizes the best 
available information. No changes were made in the FEIS based on this 
comment.
    Comment 16: NMFS received several comments questioning whether 
smooth dogfish is an HMS and should be managed by NMFS or a Regional 
Fishery Management Council, such as the MAFMC. Commenters stated that 
the Magnuson-Stevens Act defines HMS as an ``oceanic shark'' and asked 
if smooth dogfish are oceanic sharks.

[[Page 30505]]

Commenters also asked why spiny dogfish are managed by the MAFMC and 
NEFMC. One commenter stated that NMFS should manage smooth dogfish 
fisheries since it is the only Atlantic shark species which is 
subjected to a targeted fishery that has no Federal management 
measures. That commenter also felt a Federal management component would 
likely enhance new management efforts by the ASMFC.
    Response: The Magnuson-Stevens Act is the primary statute that 
authorizes Federal management of fisheries in the U.S. Exclusive 
Economic Zone. Regional fishery management councils have authority to 
manage species and stocks within their geographic jurisdiction as 
established by the Act. However, the Magnuson-Stevens Act gives the 
authority to the Secretary to manage stocks or species of highly 
migratory species that move across more than one of the five Atlantic 
councils' jurisdictions. Provisions of the Act relevant to Secretarial 
management of HMS include:

    Section 3(21): The term ``highly migratory species'' means tuna 
species, marlin (Tetrapturus spp. and Makaira spp.), oceanic sharks, 
sailfishes (Istiophorus spp.), and swordfish (Xiphias gladius). 
Section 302(3): The Secretary shall have authority over any highly 
migratory species fishery that is within the geographical area of 
authority of more than one of the following Councils: New England 
Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council, 
and Caribbean Council.
    Section 301(3) (National Standard 3): To the extent practicable, 
an individual stock of fish should be managed as a unit throughout 
its range, and interrelated stocks of fish shall be managed as a 
unit or in close coordination.

    Magnuson-Stevens Act Section 3(21) defines HMS. Unlike some other 
HMS, sharks mentioned in the definition are not defined by family or 
species. Rather, the term ``oceanic shark'' is used. The statute does 
not further expound upon or define this term. NMFS, therefore, 
considered two major factors in making its determination with respect 
to smooth dogfish. First, it considered the life history, habitat, 
migratory patterns, occurrence and distribution of the species. Second, 
NMFS considered its interpretation in the context of the various 
provisions of the Magnuson-Stevens Act applicable to HMS to ensure that 
its interpretation was logical and consistent with those provisions. 
Given the broad application of the term in conjunction with the 
habitat, migratory patterns and geographic distribution of the species, 
smooth dogfish is fairly characterized as an oceanic shark consistent 
with the structure and application of the Magnuson-Stevens Act. A more 
detailed rationale follows.
    NMFS examined section 302(3) and section 301(3) (National Standard 
3). Both of these sections relate to management authority based on the 
distribution of the species. As noted in Chapter 11 of the FEIS, smooth 
dogfish inhabit the geographical area of all five Atlantic Regional 
Fishery Management Councils, and across international boundaries to 
South America and Mexico. Further, smooth dogfish tend to be found 
inshore during the warmer months. However, thermally stable, deep 
offshore waters are preferred in the colder months (up to 200m) and 
Caribbean populations occupy waters deeper than 200m. Data from 
research surveys show that smooth dogfish are found along the eastern 
seaboard, in the Gulf of Mexico, and in the Caribbean Sea. Based on 
these factors, NMFS reasonably concluded that the smooth dogfish is an 
oceanic shark and, given its range across multiple Atlantic Regional 
Fishery Management Council Jurisdictions, highly migratory. Moreover, 
management of smooth dogfish under a single FMP is consistent with the 
Magnuson-Stevens Act's mandates for the Secretary to manage highly 
migratory species to the extent practicable as a single management 
unit. Smooth dogfish is a separate species from spiny dogfish and has 
separate management concerns. NMFS is making a determination to manage 
and conserve smooth dogfish on its own merits.
    Comment 17: Multiple commenters asked who requested Federal smooth 
dogfish management.
    Response: NMFS received smooth dogfish management requests from 
environmental conservation organizations. Furthermore, around the time 
of scoping for Amendment 3, both the ASMFC and the MAFMC identified 
that smooth dogfish were in need of conservation and management and 
began the process of creating management measures. These efforts by the 
ASMFC and the MAFMC reinforce the emerging realization that the fishery 
is in need of both State and Federal management.
    Comment 18: NMFS should work with the small group of fishermen that 
fish for smooth dogfish to gather info on the fishery rather than 
proposing new requirements.
    Response: Although a specialized fishery with perhaps a smaller 
number of fishermen than other fisheries, the smooth dogfish fishery 
still includes a large number of participants. Within the Vessel Trip 
Report (VTR) and Costal Fisheries Logbook databases, an average of 213 
vessels per year reported landing smooth dogfish between 2004 and 2007. 
This large number of participants makes collaboration with each of the 
smooth dogfish participants impracticable. However, under the smooth 
dogfish preferred alternative, alternative F2, implementation of 
management measures will be delayed until the beginning of the smooth 
dogfish fishing season in 2012. This delay will allow NMFS to continue 
outreach and have discussions with smooth dogfish participants 
regarding the fins attached regulation and will allow fishery 
participants time to modify their operation to comply with the 
regulations that will be implemented in 2012. A discussion of the 
smooth dogfish fishery is included in the FEIS.
    Comment 19: NMFS should ensure that smooth dogfish will be 
available year round. The January 1 opening for smooth dogfish could be 
good for North Carolina, since it is a winter fishery. It would affect 
North Carolina fall catch rates if the fishery became quota-limited.
    Response: Inline with the intention to minimize changes to the 
fishery, NMFS decided to establish a quota that would allow current 
exploitation levels of smooth dogfish to continue. NMFS believes that 
the established quota is at a sufficient level to prevent quota 
limitations if the fishery maintains current landing levels. Because 
there are no regional or seasonal restrictions included in the 
preferred alternative, the quota should be available year-round, and no 
specific region or State will disproportionately benefit from the 
quota. NMFS plans to open the fishery each year with a Federal Register 
notice that would likely publish near the beginning of each year.
    Comment 20: One commenter noted that smooth dogfish fishermen fish 
several nets at once, with short soak times. It would change the 
fishery if NMFS required the nets to remain attached to the vessel. The 
State of South Carolina commented that the smooth dogfish gillnet 
fishery has been practiced for some time in North Carolina and the Mid-
Atlantic States. If during this time there have been no or few problems 
associated with interactions with endangered or protected species, the 
State sees no reason to increase restrictions or change the way the 
fishery has historically been conducted. One commenter noted that the 
two hour net checks probably would not hurt smooth dogfish fishermen 
since the soak time is short. However, fishermen cannot do net checks 
with a flashlight looking down into the water because the nets are set 
deep. Also, net checks will be difficult to enforce.

[[Page 30506]]

Another commenter stated that NMFS should extend existing gillnet gear 
tending requirements to smooth dogfish fishermen, such as requiring 
that gillnets be checked at least every two hours and that protected 
and prohibited species are released. Gillnets frequently catch non-
target species, including prohibited shark species, marine mammals, and 
sea turtles. The nature of the gear makes some level of bycatch nearly 
unavoidable.
    Response: NMFS agrees that the requirement to keep gillnets 
attached to the vessel and to perform net checks could alter how the 
smooth dogfish fishery operates. Smooth dogfish fishermen are already 
required to and will continue to be required to abide by Federal Take 
Reduction Plans specific to the gear type and region of fishing 
activity. These plans include the Atlantic Large Whale Take Reduction 
Plan, the Bottlenose Dolphin Take Reduction Plan, and the Mid-Atlantic 
Harbor Porpoise Take Reduction Plan that include requirements minimize 
interactions with protected resources and to ensure those that are 
incidentally caught are released in a manner that maximizes survival.
    NMFS is currently engaged in formal Section 7 consultation in 
accordance with the ESA, paragraph 7(a)(2), to determine the potential 
level of incremental effect that may arise as a result of the preferred 
management measures for smooth dogfish in the FEIS. NMFS has not yet 
issued a final BiOp for the smooth dogfish fishery. NMFS will review 
that BiOp once it is issued and supplement the analysis in this FEIS if 
the consultation reveals any new or significant effects with respect to 
the interaction between gillnet fishing for smooth dogfish and 
protected species that were not considered in the 2008 BiOp for 
Amendment 2 to the 2006 Consolidated HMS FMP. The FEIS incorporates by 
reference the 2008 BiOp for Amendment 2 to the 2006 Consolidated HMS 
FMP. A detailed discussion of the effects of such management relevant 
to the shark fishery is included in that document. NMFS does not 
anticipate any substantial change in impact to protected species since 
the measures proposed for smooth dogfish management are largely 
administrative, and thus unlikely to affect the manner and extent of 
fishing for smooth dogfish or redistribution of effort into other 
fisheries. NMFS assumes there is a correlation between fishing effort 
and protected species interactions. Since smooth dogfish management 
measures would establish a quota and permit requirement, fishing effort 
for smooth dogfish would be capped or slightly reduced with a 
corresponding diminishment of the possibility of increased protected 
resource interactions. In addition, increased observer coverage in the 
smooth dogfish fishery as a result of a Federal permit requirement 
would better characterize protected resources interactions with the 
smooth dogfish fishery.
    Under the alternative (F2), identified as the preferred alternative 
in the FEIS and selected by NMFS as part of Amendment 3 in the Record 
of Decision, the implementation of the management measures would be 
delayed until the beginning of the smooth dogfish fishing season in 
2012 to allow time to consider and evaluate the information and 
requirements included in the final smooth dogfish BiOp. If the 
assessment of effects in the BiOp provides new and meaningful 
information not considered in this FEIS, NMFS will supplement the FEIS, 
as appropriate, before implementing any management measures proposed in 
alternative F2. In the interim, NMFS will not impose any management 
authority or related conservation and management measures on the smooth 
dogfish fishery, and thus will not cause any effect on protected 
species related to such management. In other words, the selection of 
preferred alternative F2 maintains the status quo with respect to the 
smooth dogfish fishery as it relates to protected species prior to 
receiving a final BiOp. While NMFS would finalize the rulemaking with 
measures for blacknose shark and shortfin mako sharks becoming 
effective 30 days after publication of the final rule in the Federal 
Register, the measures, if any, selected for management of smooth 
dogfish would be deferred to allow NMFS to develop reasonable and 
prudent alternatives (RPAs) that could be implemented while avoiding 
adverse impacts to listed species, as necessary.
    Comment 21: Trawl fishermen skin smooth dogfish at sea and sell 
them as steaks.
    Response: Under Federal management, trawl fishermen will likely not 
be able to continue skinning smooth dogfish at sea, and will not be 
able to continue processing the fish into steaks at sea. Smooth 
dogfish, like all other Federally managed Atlantic shark species, would 
be required to be landed with fins naturally attached to the carcass 
under alternative F2, the alternative identified as the preferred 
alternative in the FEIS and selected by NMFS as part of Amendment 3 in 
the ROD. Trawl fishermen could continue to skin the shark if they can 
leave the fins naturally attached to the carcass, but they will be 
unable to process the smooth dogfish into steaks at sea. NMFS did not 
add an alternative in the FEIS or this final rule in response to this 
comment.
    Comment 22: NMFS might cause an influx of new fishermen into the 
fishery with the new open access permits.
    Response: NMFS acknowledges that there may be some fishermen who 
will obtain a permit and try to establish a catch history in case the 
fishery is changed to limited access at some point in the future. There 
may also be some fishermen in areas that do not currently have a smooth 
dogfish fishery, such as in the Gulf of Mexico, who may obtain a permit 
in the hopes of creating a similar fishery in that region. However, 
NMFS does not believe that the creation of a smooth dogfish open access 
permit will attract large numbers of new fishermen to the fishery or 
cause a large increase in fishing effort. The fishery is currently 
unmanaged in Federal waters and operates with few restrictions. 
Although NMFS has tried to minimize changes to the fishery, Federal 
management does introduce new restrictions, including a requirement to 
keep fins naturally attached to the carcass. If fishermen did not 
choose to enter the fishery when it was unmanaged, it is unlikely that 
Federal management would entice them to enter the fishery now. A 
discussion of the socio-economic impacts of bringing the smooth dogfish 
fishery under Federal management is included in the FEIS.
    Comment 23: NMFS should proceed with a stock assessment for smooth 
dogfish throughout their range. The State of Virginia suggested that 
pooling resources between ASMFC, NMFS, and MAFMC may expedite the 
process.
    Response: A stock assessment is important for any fishery 
management plan. Knowing the current biomass and how it relates to 
Bmsy or to virgin stock biomass informs quota levels and 
size and retention limits. NMFS believes that the first step in working 
toward a stock assessment is collecting data and characterizing the 
fishery. Once NMFS has sufficient data from the fishery a stock 
assessment could be done in the future to determine the stock status of 
this species. These are the goals of the smooth dogfish measures in the 
preferred alternative for Amendment 3 as explained in the FEIS. NMFS 
would like to work closely with ASMFC, MAFMC and other interested 
parties in conducting a stock assessment.

G. General Comments

    Comment 1: Is there a mechanism in place for ASMFC to request that 
the

[[Page 30507]]

Secretary implement complementary management measures in the EEZ?
    Response: The ASMFC can always offer management recommendations to 
NMFS regarding Federally managed species. Furthermore, NMFS included an 
alternative in the FEIS to implement smooth dogfish management measures 
that mirror ASMFC measures. However, after analyzing the smooth dogfish 
measures in place in the 2009 Interstate Coastal Sharks FMP and Smooth 
Dogfish Addendum I, NMFS determined that it would likely be unable to 
implement many of the management measures due to Magnuson-Stevens Act 
and Shark Fining Prohibition Act requirements.
    Comment 2: NMFS needs to add deepwater sharks to the list of 
prohibited shark species. Deepwater sharks are particularly slow 
growing, which makes them vulnerable to overfishing. Related 
populations have been severely and rapidly depleted from fisheries in 
other parts of the world.
    Response: Implementing Federal management of deepwater sharks by 
placing them on the prohibited list would not likely have significant 
ecological benefits since deepwater sharks are not currently targeted 
in any fishery and are only caught as bycatch. Placing this group on 
the prohibited list would not prevent bycatch of these species. 
Additionally, prohibiting the landing of deepwater sharks would limit 
data gained from incidental catches. If prohibited, these rarely 
encountered species would have to be released and could not be landed 
and submitted for subsequent analysis. Establishing management measures 
for deep water sharks is beyond the scope of Amendment 3 and does not 
meet the purpose and need described in the DEIS and FEIS. Alternatives 
for such measures were therefore not considered in the FEIS.
    Comment 3: Deepwater sharks are not commercially important in the 
United States for food. NMFS needs to truly understand the fisheries 
that interact with deepwater sharks and be able to assess the deepwater 
shark stocks accurately, especially if there is a bycatch that is or 
could become a secondary market landing and sale.
    Response: As noted in the previous response, deepwater sharks are 
rarely encountered and only caught as bycatch. NMFS encourages anyone 
who catches a deepwater shark to submit the shark to scientists for 
research.
    Comment 4: We are concerned about the accuracy of some of the 
statistics presented on recreational fishery ``harvest.'' For example, 
NMFS states that the number of porbeagle sharks that were ``harvested'' 
by recreational fishermen across all reporting years was zero. 
Tournaments regularly target this species and award prizes for landing 
them. Additionally, NMFS shows that annual harvest of sand tiger sharks 
was zero for the reporting years except for 2001 when 604 were taken 
and 2006 when 1,040 were killed. It is hard for us to see how the 
recreational fishery took over 1,000 sand tiger sharks in a single 
year, more than a decade after they were listed as a prohibited 
species. As such, we are concerned about the reliability of the data 
used by NMFS as a basis for determining impacts on species.
    Response: Collection of recreational fishery catch and effort data 
relies on survey methods. Data are collected through a combination of 
dockside intercepts and telephone surveys. Since it is not possible to 
sample all of the millions of fishing trips taken, recreational surveys 
require sampling a representative portion of fishing trips, and then 
expanding the results. Recreational harvest estimates for species that 
are rarely landed, as is the case with many shark species, are 
typically very imprecise using survey methods designed for more 
commonly caught species. MRFSS estimates of sharks harvested may also 
be inaccurate due to the fact that the MRFSS does not sample at 
tournament locations. The NOAA Fisheries Large Pelagics Survey (LPS), 
which is conducted from Maine through Virginia, typically produces more 
reliable recreational catch estimates for rare event species such as 
sharks, tunas, and billfish. However, landings of species such as 
porbeagle and sand tiger sharks are still rare events even for the LPS, 
and variances can be quite large for these species even with a 
specialized survey. Efforts are underway to improve the accuracy and 
precision of recreational fisheries data, including estimated catches 
of rare event species, through a new data collection initiative called 
the Marine Recreational Information Program (MRIP). NMFS believes the 
data on recreational harvest, particularly for purposes of SCS species 
addressed under Amendment 3, reflects the best scientific information 
available at this time. Therefore, recreation harvest data was not 
changed in the FEIS in response to this comment.
    Comment 5: Sharks need to be available all year and low quotas lead 
to regulatory discards. Fishermen do not need a directed shark permit 
to sell sharks caught in NC waters.
    Response: In Amendment 2 to the 2006 Consolidated HMS FMP, NMFS 
implemented a trip limit of 33 non-sandbar LCS with the expectation 
that directed shark permit holders would no longer target non-sandbar 
LCS and that this reduced trip limit would allow the non-sandbar LCS 
quota to last year-round. However, the 2009 non-sandbar fishery opened 
on January 23rd and closed on July 1st in the Atlantic and June 6th in 
the Gulf of Mexico. Because the non-sandbar LCS seasons only lasted 
half of the year, NMFS is currently looking at data and analyzing 
management measures that would allow the fishery to remain open for 
longer periods during the fishing year. Adjusting seasons and quotas 
for non-SCS species is beyond the scope of Amendment 3 and the FEIS, 
therefore, NMFS did not propose management alternatives in response to 
this comment.
    Many States do not have species-specific commercial fishing 
permits, and instead rely on a general commercial fishing permit. 
Fishermen who fish in State waters must comply with their State's 
fishing regulations. Fishermen that have a directed or incidental 
Federal shark commercial permit must abide by Federal regulations and 
must sell to a Federally permitted dealer when fishing in Federal or 
State waters.
    Comment 6: The frequency of shark dealer reporting has always 
needed to be more frequent than every two weeks. It appears that the 
NMFS personnel have a hard time monitoring the various shark landings 
as a result of waiting too long.
    Response: Frequency of shark dealer reporting requires a balance of 
data needs and reporting burdens. More frequent reporting could result 
in a reduction in data lags; however, it would significantly increase 
the burden of shark dealers. To account for uncertainties such as data 
lags, the Magnuson-Stevens Act requires AMs in each fishery to ensure 
that ACLs are not exceeded. In the shark fisheries, NMFS employs an AM 
whereby the fishery is closed when landings reach, or are expected to 
reach, 80 percent. This measure has been effective in ensuring that 
data lags do not result in grossly exceeding the quota. NMFS provides 
shark landings reports, by complex or species, on a monthly basis to 
ensure that participants are aware of catches in the shark fishery. 
NMFS is examining changes to the data management structure and may move 
toward more real time electronic reporting in the future. However, 
these types of data management actions are beyond the scope of 
Amendment 3 and alternatives were therefore not proposed in the FEIS in 
response to this comment.

[[Page 30508]]

    Comment 7: A Count, Cap and Control system for shark management 
includes the following: Obtaining sufficient landings and observer data 
to accurately and precisely monitor catch (landings + discards) in the 
fishery; conducting species-specific stock and fishery assessments; 
setting annual catch limits to limit all sources of fishing mortality; 
and implementing accountability measures to ensure the ACLs are 
respected. Real-time management of quotas, time-area management 
measures and bycatch caps should be fully explored in this FMP 
amendment. If the agency decides not to use in-season AMs, it must 
fully support this decision with a well-defended rationale as to why 
in-season AMs are truly impossible, rather than impractical or 
incrementally more difficult to administer. The agency should take a 
precautionary approach towards administering the remaining quota 
designations for the oceanic whitetip and common thresher sharks within 
the pelagic shark species group. There are currently no stock 
assessments for either the oceanic whitetip or the common thresher 
sharks. In the past 10 years, the North Atlantic population of oceanic 
whitetip sharks has declined by an estimated 70 percent. NMFS should 
reassess their management of pelagic shark species. It is vital that 
each pelagic shark species caught by U.S. fishermen have a species-
specific stock assessment and a species-specific quota.
    Response: This amendment specifies how NMFS plans to implement 
Magnuson-Stevens Act 303(a)(15) requirements for ACLs and AMs. Chapter 
1 of the FEIS details the methodology, where the quota is equal to the 
landings component of the commercial sector ACL. Additionally, AMs 
already in place in the commercial shark fishery will be maintained. 
These AMs include restrictions on how to carry over under- and 
overharvests and closing the fishery when landings reach, or are 
expected to reach, 80 percent. Changes to how NMFS monitors the 
landings, introducing time/area closures, or altering bycatch 
management are not addressed in this amendment as they do not support 
the purpose and need of this rulemaking. Therefore, management 
alternatives suggested by this comment were not included in the FEIS.
    NMFS has not conducted a stock assessment for oceanic whitetips. 
Data may be a limiting factor, as there are limited landings data for 
oceanic whitetip sharks. NMFS will continue to work with international 
partners and ICCAT towards more species-specific assessments for 
pelagic sharks. To date, ICCAT has completed assessments for blue and 
shortfin mako sharks. There is scant data available on oceanic whitetip 
landings. Again, management of the pelagic shark complex other than 
shortfin mako is beyond the scope of Amendment 3 and would not meet the 
purpose and need set forth in the FEIS. Therefore, additional pelagic 
shark management measures (other than for shortfin mako) were not 
included in the FEIS in response to this comment.
    Comment 8: NMFS received several comments regarding other shark 
species that require management. Specifically, commenters felt that 
NMFS should focus on hammerhead and tiger sharks.
    Response: This amendment, among other things, focuses on NMFS' 
requirement under the Magnuson-Stevens Act to implement a rebuilding 
plan and ACLs and AMs in the blacknose shark fishery since this species 
is overfished and overfishing is occurring based on the 2007 SCS stock 
assessment results. NMFS continually monitors stocks of all species 
under its jurisdiction and promptly begins the rulemaking process 
should one of these stocks be determined to be overfished or have 
overfishing occurring based on the results of a stock assessment. The 
LCS complex was assessed in 2006 through the SEDAR process, and this 
assessment determined that there was not enough information for a tiger 
shark-specific assessment. For this reason, tiger sharks have an 
unknown stock status. NMFS is aware of a hammerhead assessment 
published in a peer reviewed journal and is reviewing that paper to 
determine its appropriateness for use in making stock status 
determinations and implementing management measures. Management of 
hammerhead and tiger sharks is beyond the scope of Amendment 3 and 
would not meet the purpose and need set forth in the FEIS. Therefore, 
additional management measures for these species were not included in 
the FEIS in response to this comment.
    Comment 9: If NMFS is conducting a stock assessment on sandbar in 
2010, NMFS should consider the stock north of Virginia that usually is 
not included because there is no fishery there. When you shut down the 
commercial sandbar shark fishery, you said it was because they were 
overfished but there are places you are not assessing.
    Response: NMFS uses the best available science and a rigorous SEDAR 
assessment process for all sharks species. NMFS held a public data 
workshop for the 2005/2006 LCS stock assessment and requested that 
participants submit any relevant data or analysis. NMFS included all 
the available data that were presented at the data workshop for the LCS 
stock assessment, including fishery-dependent and fishery-independent 
data from all regions in the Atlantic, Gulf of Mexico and the Caribbean 
Sea. Data inputs for the stock assessment are not solely fishery-
dependent, therefore, geographical limitations of the fishery do not 
skew the stock assessment results. Management of sandbar sharks is 
beyond the scope of Amendment 3 and would not meet the purpose and need 
set forth in the FEIS. Therefore, additional management measures for 
these species were not included in the FEIS in response to this 
comment.
    Comment 10: Requiring fins be naturally attached does not work for 
SCS. Some dealers are not renewing their permits because they are 
afraid of getting in trouble with the requirement. Other dealers do not 
have room to process fish on the dock.
    Response: NMFS does not believe that the requirement to land sharks 
with fins attached is overly burdensome for the following reasons. 
First, the requirement to land sharks with fins attached would allow 
fishermen to leave the fins attached by just a small piece of skin so 
that the shark could be packed efficiently on ice while at sea. Shark 
fins could then be quickly removed at the dock or at the dealer without 
having to thaw the shark. Second, sharks may be eviscerated, bled, and 
the head removed from the carcass at sea. These measures should prevent 
excessive amounts of waste at the dock, since dressing (except removing 
the fins) the shark may be performed while at sea. Third, while this 
requirement would result in some change to the way in which fishermen 
process sharks at sea, because the fins can be removed quickly once the 
shark has been landed, NMFS expects that the dealers will not require 
significantly more room for post-landing processing. Fourth, dealers 
have the option to accept or decline certain species, and Federal 
regulations would not eliminate that option. For these reasons NMFS did 
not propose an alternative for consideration in the FEIS or this final 
rule as a result of this comment.
    Comment 11: What is happening regarding the legislation in place to 
allow flexibility in the Magnuson-Stevens Act and how does that impact 
Amendment 3?
    Response: NMFS is aware of the Flexibility in Rebuilding American 
Fisheries Act of 2009 (HR 1584) sponsored by Rep. Pallone (NJ). The Act 
would amend the Magnuson-Stevens Act and alter the rebuilding deadlines 
currently in place for overfished stocks. This legislation, however, 
has not

[[Page 30509]]

passed either house of Congress, and NMFS is unable to speculate on 
whether or not it will ultimately pass. At this time, the Magnuson-
Stevens Act, as it exists after the 2007 reauthorization, is NMFS' 
guiding legislation for this amendment.
    Comment 12: Is there a possibility of changing the SCS fishery 
start date to July 1?
    Response: The SCS fishing year runs from January to December. The 
actual fishing season starts when NMFS publishes a notice in the 
Federal Register. NMFS could delay the opening of the SCS fishing 
season if data indicate that it is appropriate to do so. In the 
proposed 2010 Shark Season Rule (October 28, 2009, 74 FR 55526), NMFS 
proposed to delay the opening of the 2010 SCS shark season until after 
the publication of Amendment 3 to the 2006 Consolidated HMS FMP. 
Without a delay in the start date, the 2010 SCS fishery would open 
under the current quota of 454 metric tons (mt) dressed weight (dw) on 
the effective date of the final rule for the 2010 Atlantic shark 
specifications. Amendment 3 proposed, among other things, measures to 
significantly reduce the non-blacknose SCS and blacknose shark quotas 
in order to rebuild and end overfishing of blacknose sharks and also 
established a mechanism for implementing ACLs and AMs. A delay would 
also allow time for the establishment of ACLs before the start of the 
2010 fishing season in addition to ensuring the SCS fishery opens under 
the measures that may be established in Amendment 3. Additional 
measures to delay the shark season opening are not proposed or 
considered in the FEIS as they are beyond the scope of Amendment 3 and 
otherwise provided for under existing regulation.
    Comment 13: Is NMFS considering catch shares for the shark fishery?
    Response: A catch share is the allocation of the available fishery 
quota among participants within the fishery. Limited access privilege 
programs (LAPPs) are one type of catch share program. These programs 
may be implemented to address numerous issues, including but not 
limited to: Ending the race for fish, reducing overcapitalization, and 
improving efficiency and safety, while still addressing the biological 
needs of a stock. These programs can be designed to meet the specific 
needs of a fishery, provided they meet the requirements outlined in the 
Magnuson-Stevens Act. Catch shares were not considered for the shark 
fishery in Amendment 3 and this final rule because of the ramifications 
this type of program would have for the existing permit structure and 
the time required for implementing these programs.
    To properly design a catch share program that appropriately 
considers the views and interests of all stakeholders and then 
implement such a system would have taken NMFS several years, and 
therefore, catch shares were not considered a reasonable alternative 
for this action given the mandate in subsection 304(e) of the Magnuson-
Stevens Act to rebuild the blacknose stock in the shortest time 
possible and the additional requirement of paragraph 303(a)(15), as 
implemented by the National Standard 1 Guidelines, to have a mechanism 
for specifying ACLs and AMs in place for stocks experiencing 
overfishing by 2010. However, NMFS is considering revisions to the 
existing permit structure within HMS fisheries. This could include a 
catch share program for sharks as well as other HMS as was discussed 
during the September/October 2008 HMS Advisory Panel. NMFS published an 
ANPR on June 1, 2009 (74 FR 26174), to initiate broad public 
participation in considering catch shares for HMS fisheries. NMFS is 
also planning to discuss the future of the shark fishery, including the 
possibility of catch shares, at the May 2010 HMS Advisory Panel meeting 
in Silver Spring, MD (75 FR 19369, April 14, 2010). Establishing a 
catch share program is beyond the scope of Amendment 3 and this final 
rule and does not meet the purpose and need set forth in the FEIS. 
Catch share options, therefore, were not included or considered in the 
FEIS or this final rule.
    Comment 14: Blacknose sharks eat newly hatched sea turtles. Your 
proposal to rebuild blacknose sharks will impact sea turtle 
populations.
    Response: NMFS is bound by the Magnuson-Stevens Act requirements to 
stop overfishing of blacknose sharks, and to rebuild stocks to a non-
overfished status. The Office of Sustainable Fisheries works closely 
with the Office of Protected Resources to ensure actions in the fishery 
do not jeopardize the continued existence of protected resources.
    Comment 15: Commercial fishing for all shark species should be done 
using rod and reel only to reduce bycatch.
    Response: Although rod and reel often has reduced bycatch of non-
target species, this gear is not commonly used in the commercial 
fishery to target sharks. Gears that are more commonly used in shark 
fisheries, such as gillnets and longlines, do have some risk of bycatch 
however there are bycatch mitigation measures in place in the Atlantic 
shark fishery that reduce interactions and increase post-release 
survival of protected resources. Chapter 3 of the FEIS details the 
numerous measures in place to minimize bycatch in these fisheries. The 
proposal to restrict commercial shark gear to rod and reel was not 
included or evaluated in the FEIS or this final rule in response to 
this comment.

H. Economic Comments

    Comment 1: Fishermen cannot sell sharks anymore. Most sharks used 
to go to the Midwest where there was a stable market. Those markets 
needed 6 to 8 months of lead time, but that market is gone now. Dealers 
will buy some meat ($0.20/lb) because they can resell it as bait.
    Response: Permitted commercial shark fishermen are currently 
allowed under the regulations to sell authorized shark species to 
permitted dealers. NMFS examined the commercial shark fishing revenues 
over the past eight years in Chapter 6 of the DEIS and FEIS. Total ex-
vessel revenues from small coastal shark meat has fluctuated between 
approximately $535,000 and $823,000 annually over that period with no 
discernable pattern.
    NMFS provided median real ex-vessel prices for shark species groups 
from 2004-2007 in the DEIS and FEIS. The median ex-vessel price for SCS 
meat from 2004-2007 was $0.66 per pound dressed weight. NMFS 
acknowledges there is significant seasonal and regional variation in 
dealer prices. The lowest average ex-vessel median average price was 
for smooth dogfish, $0.29 per pound dressed weight, which is similar to 
the price the commenter indicated dealers are paying.
    Comment 2: Did NMFS look at the monetary figures? If you spread the 
small SCS quota across all the permit holders, there is not enough 
quota for everyone.
    Response: NMFS examined the per vessel impacts of the SCS quotas 
across all permit holders in Chapter 8 of the DEIS and FEIS. Based on 
data from 2004 to 2007 for directed and incidental shark permit holders 
that landed non-blacknose SCS, the average directed shark permit holder 
earned $9,427 in average annual gross revenues, and the average 
incidental shark permit holder earned $707 in average annual gross 
revenues from non-blacknose SCS landings. For those permit holders that 
actually landed blacknose shark during that same time period, the 
average directed shark permit holder earned $3,640 in average annual 
gross revenues, and the average incidental shark permit holder earned 
$1,722 in

[[Page 30510]]

average annual gross revenues from blacknose shark landings.
    NMFS acknowledges that the availability of SCS quota proposed in 
the DEIS would be limited if spread across all permit holders. As 
described in the responses above, NMFS made changes to the SCS quotas 
based, in part, on the comments received. The preferred alternative in 
the FEIS and this final rule for small coastal sharks is now 221.6 mt 
versus the 56.9 mt preferred under the DEIS. The preferred alternative 
for blacknose shark quota was raised from 14.9 mt under the DEIS to 
19.9 mt in the FEIS and this final rule.
    Comment 3: Multispecies fishermen need every species they can 
catch. The economic impacts on these multispecies fishermen were not 
considered.
    Response: NMFS examined the cumulative economic impacts of the 
proposed rule in Chapter 4 of the DEIS and FEIS.
    Comment 4: The fins attached rule decreased effort on SCS because 
it is too much work processing the sharks twice in hot weather. Prices 
are lower for SCS because requiring fins remain attached to the carcass 
decreased the quality due to increased processing time.
    Response: NMFS acknowledges that requiring fins remain attached to 
the carcass could decrease the quality of the product due to increased 
processing time. However, as described above, NMFS does not believe the 
requirement is overly burdensome. Additionally, other factors, such as 
market demand and decreased supplies, might also affect prices. NMFS 
will examine the impacts that leaving fins on sharks is having on 
prices for SCS as information becomes available.
    Comment 5: Shortfin mako sharks are a significant secondary bycatch 
for the U.S. pelagic longline fishing fleets from Maine to Texas. Like 
most sharks this is a shared resource with other countries. NMFS is 
unilaterally proposing to hurt U.S. fishermen first with economic 
impacts.
    Response: NMFS acknowledges that shortfin mako shark is often a 
bycatch species in other fisheries in the United States. The 
alternatives selected for the commercial shortfin mako shark fishery 
will not change the current retention limits for U.S. fishermen at this 
time. NMFS will promote the live release of shortfin mako sharks, but 
will not make it mandatory for the fishery. NMFS has decided to take 
action at the international level to end overfishing of shortfin mako 
sharks through participation in international fisheries organizations 
such as ICCAT. While these approaches could impact U.S. fishermen 
economically before it impacts fishermen in other countries, neither of 
these measures are expected to have a significant economic impact on 
U.S. commercial fishermen.
    Comment 6: The preferred alternative that would eliminate the 
recreational fishery is, in fact, an allocation decision that gives 100 
percent of the blacknose shark TAC to the commercial sector. There are 
no analyses of the economic benefits to the nation associated with this 
allocation. Such an economic analysis is required.
    Response: Blacknose sharks rarely reach a size greater than the 
current Federal minimum size; therefore, the current 54 inch FL size 
limit creates a de facto retention prohibition of blacknose sharks in 
Federal waters. As discussed in the DEIS and FEIS, NMFS determined that 
prohibiting the retention of blacknose sharks in the recreational 
fishery under alternative D4 could have some negative social and 
economic impacts on recreational fishermen, including tournaments and 
charter/headboats, if the prohibition of blacknose sharks resulted in 
fewer charters. However, since blacknose sharks are not one of the 
primary species targeted by recreational anglers, in tournaments or on 
charters and they rarely reach a size greater than the current Federal 
minimum size, NMFS estimates limited negative social and economic 
impacts from alternative D4 on recreational anglers, tournaments, or in 
the charter/headboat sector.
    In the FEIS, alternative D1 was the preferred alternative because 
the effect is the same as prohibiting the retention of blacknose 
sharks, thereby contributing to the rebuilding of the species. As 
described above, NMFS received comments from States describing their 
own management in State waters. Thus, NMFS chose to prefer and select 
this alternative rather than the previously preferred alterative, 
alternative D4.
    Comment 7: A few commenters, including the State of Virginia, noted 
that there is no indication that finning has been, is, or is likely to 
become a problem in the smooth dogfish fishery because of the economics 
of the fishery. The State of Virginia notes that the smooth dogfish 
fishery subsists as a high volume and labor intensive endeavor, as a 
typical whole round weight of 1,000 pounds contains 200 to 250 
individual dogfish. In a typical processed catch of smooth dogfish, the 
dockside value of the fins represents 20 to 30 percent of the price 
paid to fishermen for their total catch, and fishermen return dockside 
with meat and fins in separate containers. Delaying the removal of fins 
and tail until landing would result in decreased marketability. Smooth 
dogfish are harder than other species to extract from the net, butcher 
and clean, with the result that labor costs represent a higher 
percentage of the total value of the product. Cutting fins at sea is 
important practically to the fishery in order to maintain proper 
product freshness. In the absence of processing, there would be a loss 
of profitability to the industry because of the increased labor with 
re-handling each carcass.
    Response: NMFS agrees that processing smooth dogfish is likely a 
labor intensive operation. While the delay in the removal of fins and 
tails until landing could reduce the quality and marketability of 
smooth dogfish, it is unclear whether any decreases in ex-vessel prices 
would exceed potential cost savings from reduced labor needs at sea 
associated with finning on the vessel. There would potentially be an 
increase in operating costs for dealers if they end up processing the 
fins from the smooth dogfish carcasses.
    Comment 8: If NMFS set the smooth dogfish quota at 1,423,728 lb dw, 
we may not reach it very often but there would be years when we do. The 
pricing is dependent on the international market (years when the price 
is high, the quota will go fast).
    Response: The proposed smooth dogfish quota was selected in order 
to accommodate average fishing levels. The 1,423,728 lb dw quota is 
equal to the maximum annual landings between 1998-2007 plus one 
standard deviation. NMFS acknowledges that in rare years, this quota 
might constrain the fishery. In part to address this issue, NMFS added 
an additional alternative to the FEIS where the smooth dogfish quota 
would be set equal to the maximum annual landings from 1998-2007 plus 
two standard deviations (1,577,319 lb dw). This new preferred 
alternative, which was selected by NMFS, should accommodate the 
potential few years were the smooth dogfish quota may exceed 1,423,728 
lb dw.
    NMFS is also aware that international markets may impact the 
pricing of domestic smooth dogfish. However, NMFS does not currently 
have sufficient data on the fishery to model the degree to which high 
international prices may increase domestic landings of smooth dogfish.
    Comment 9: There is little or no fin value for smooth dogfish.
    Response: The median ex-vessel price for smooth dogfish fins was 
estimated to be $2.02 per pound between 2004 and 2007. Based on ACCSP 
data from 1998-2007, in the commercial fishery an

[[Page 30511]]

average of 1,321,695 lb ww of smooth dogfish were retained per year. Of 
this total, NMFS estimates 47,543 lb of fins would be available for 
sale per year. Using the median ex-vessel price of these products 
between 2004 and 2007 ($2.02 for smooth dogfish fins), the fishery 
averaged $96,037 in value per year.

Changes From the Proposed Rule (74 FR 36892, July 24, 2009)

    NMFS has made several administrative changes in the final rule. In 
addition, responding to comments from the public and others on the 
proposed rule, NMFS has made several substantive changes in the final 
rule consistent with changes made between the DEIS and Draft Amendment 
3 and the final version of those documents. These changes are outlined 
below.
    1. Gillnet gear. In the proposed rule, NMFS proposed to remove the 
authorization to use gillnet gear south of North Carolina. Due, in 
part, to public comments, NMFS is maintaining the current 
authorizations for gillnet gear, in the final rule. As such, all 
references to removal of gillnet gear have been removed and the current 
requirements remain. Additionally, as was proposed, NMFS is removing 
Sec.  635.5(a)(4), which required shark gillnet vessels to contact NOAA 
Fisheries if a whale is taken. While NMFS proposed to remove this 
paragraph partly due to the proposed removal of the authorization of 
gillnet gear, in this final rule NMFS removes this paragraph because it 
is redundant to a reporting requirement under section 229 under the 
Marine Mammal Protection Act. NMFS is maintaining the requirement that 
shark gillnet vessels that take a whale must stop fishing immediately 
(previously Sec.  635.21(e)(3)(v)).
    2. Smoothhound sharks. For various reasons, as described in 
Amendment 3 and above, NMFS is delaying the implementation of the final 
actions for smooth dogfish until the start of the 2012 fishing season. 
As a result, many of the sections of the regulations were re-ordered 
and, in some cases, re-worded to ensure that requirements for smooth 
dogfish were separate paragraphs at the end of each section. 
Additionally, to reduce confusion with the spiny dogfish regulations 
and to more accurately describe both smooth dogfish and Florida 
smoothhound sharks, the final regulations changes the name of the 
complex containing these two species, and any references to this 
complex, to ``smoothhound sharks'' from ``other sharks.''
    3. Trawl gear. Additional analyses since the DEIS show that 
fishermen using trawl gear interact with and land smooth dogfish 
incidental to other species. As such, NMFS intends to allow fishermen 
using trawl gear to land smoothhound sharks incidentally. However, NMFS 
is still considering the most appropriate way to allow for this 
activity and will finalize a decision on this issue in a separate 
action.
    4. Sec.  635.22(c). Due, in part, to public comment, NMFS will no 
longer prohibit the retention of blacknose sharks by recreational 
fishermen. As a result, blacknose sharks continue to be on the list of 
species that may be retained by anglers. The current minimum size and 
bag limits will still apply.
    5. Sec.  635.27(b)(1). As a result of public comment and additional 
analyses, NMFS modified the final quotas and retention limits for non-
blacknose SCS, blacknose sharks, and smooth dogfish sharks. These 
modifications are reflected in this section.

Commercial Fishing Season Notification

    Pursuant to the measures being implemented in this final rule, the 
blacknose shark baseline quota is 19.9 mt dw and the non-blacknose SCS 
baseline quota is 221.6 mt dw. As of March 31, 2010, less than 0.1 mt 
dw of SCS have been reported to NMFS (105 lb dw of blacknose and 56 lb 
dw of non-blacknose SCS). Given these low levels of landings, the 
baseline quotas for 2010 have not been adjusted. Rather, these 
landings, along with any additional landings that occur before the 
opening of the fishing season, will be counted against the quota during 
the 2010 fishing year. As such, the 2010 blacknose shark quota is 19.9 
mt dw and the 2010 non-blacknose SCS quota is 221.6 mt dw.
    The 2010 Atlantic commercial shark fishing season for non-blacknose 
SCS and blacknose in the northwestern Atlantic Ocean, including the 
Gulf of Mexico and the Caribbean Sea, will open on June 1, 2010.
    The non-blacknose SCS and blacknose fisheries will remain open 
until December 31, 2010, unless NMFS determines that the fishing season 
landings of non-blacknose SCS or blacknose sharks has reached, or is 
projected to reach, 80 percent of the available quota. If that occurs, 
consistent with 50 CFR 635.28(b), NMFS will file for publication with 
the Office of the Federal Register a notice of closure for both non-
blacknose SCS and blacknose sharks that will be effective no fewer than 
5 days from date of filing. From the effective date and time of the 
closure until NMFS announces, via a notice in the Federal Register, 
that additional quota, if any, is available, the blacknose and non-
blacknose SCS fisheries will remain closed, even across fishing years, 
consistent with 50 CFR 635.28(b).

Classification

    The Assistant Administrator for Fisheries determined that the 
Amendment 3 to the Consolidated HMS FMP is necessary for the 
conservation and management of the Atlantic HMS shark fishery and that 
it is consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    NMFS prepared an FEIS for this FMP amendment. The FEIS was filed 
with the Environmental Protection Agency on March 12, 2010. A notice of 
availability was published on March 19, 2010 (75 FR 13275). In 
approving the FMP amendment on May 18, 2010, NMFS issued a Record of 
Decision (ROD) identifying the selected alternatives. A copy of the ROD 
is available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant under EO 
12866.
    Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator waives 
the 30-day delayed effectiveness for this action as several measures in 
this final action relieve restrictions. The waiver of the 30-day delay 
would only apply to the opening of the blacknose and non-blacknose SCS 
fisheries and the associated commercial quotas (sections 
635.27(b)(1)(i)-(v) and 635.28(b). All other measures in this final 
action would go into effect at least 30 days after publication of the 
final rule in the Federal Register. The smoothhound shark measures in 
this action will not be effective until the start of the fishing season 
in the 2012.
    The small coastal shark fishery closed on December 31, 2009, and, 
under normal circumstances, would have opened for the 2010 fishing year 
upon the effectiveness of the final rule for the 2010 Atlantic shark 
season specifications (75 FR 250, January 5, 2010). However, due to the 
anticipation of measures in this final rule, particularly those 
measures that change the SCS quotas and implement a rebuilding plan for 
blacknose sharks, NMFS made the decision in the 2010 Atlantic shark 
season specifications to keep the 2010 SCS fishing season closed until 
the effective date of this final rule. The current closure of the SCS 
fisheries is occurring during the time period when SCS fishermen 
typically fish for SCS species, and therefore, fishermen are 
experiencing negative economic impacts that will continue until the 
fishery opens. This final action would

[[Page 30512]]

relieve a restriction by allowing SCS fishermen to fish for blacknose 
sharks and non-blacknose SCS under the new commercial quotas, providing 
economic benefits to fishermen, dealers and others that rely on SCS 
products.

Paperwork Reduction Act

    This final rule will require commercial and recreational fishermen 
fishing for smooth dogfish to obtain a smoothhound permit authorizing 
landings of smooth dogfish. This requirement is considered a 
collection-of-information requirement and is subject to review and 
approval by OMB under the PRA. NMFS has not yet submitted an 
application for this collection-of-information to OMB for approval. The 
implementation of this requirement is delayed pending approval. Once 
the application is submitted, comments regarding the public burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, should be sent to NMFS (see 
ADDRESSES) and by e-mail to [email protected], or fax to 202-
395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Coastal Zone Management Act

    The Coastal Zone Management Act (CZMA) requires that Federal agency 
activities be consistent to the maximum extent practicable with the 
enforceable policies of Federally-approved State coastal management 
programs (CMPs). NMFS has determined that the final and selected 
alternatives in this final rule and Amendment 3 will be implemented in 
a manner consistent to the maximum extent practicable with the 
enforceable policies of the coastal States in the Atlantic, Gulf of 
Mexico, and Caribbean that have Federally approved CMPs. In July 2009, 
NMFS provided all coastal States along the eastern seaboard and the 
Gulf of Mexico (21 States), including Puerto Rico and the U.S. Virgin 
Islands with a copy of the proposed rule and draft EIS for Amendment 3 
to the Consolidated HMS FMP. Under 15 CFR 930.41, States and/or U.S. 
territories have 60 days to respond after the receipt of the 
consistency determination and supporting materials. States can request 
an extension of up to 15 days. If a response is not received within 
those time limits, NMFS can presume concurrence (15 CFR 930.41(a)). 
Seven States replied within the response time period that the proposed 
regulations were consistent, to the extent practicable, with the 
enforceable policies of their CMPs (Connecticut, New Jersey, 
Pennsylvania, Delaware, Virginia, Mississippi, and Puerto Rico). 
Another ten States (Maine, New Hampshire, Rhode Island, Massachusetts, 
New York, Maryland, South Carolina, Alabama, Louisiana, and the U.S. 
Virgin Islands) did not respond within the response time period, nor 
did they request an extension in the comment period; therefore, NMFS 
presumes their concurrence. The State of Florida, the State of Georgia, 
and the State of North Carolina replied that the proposed rule was not 
consistent with the enforceable policies of their respective State's 
coastal zone management program.

A. Response to the State of Florida

    The State of Florida in an October 9, 2009, letter stated that the 
recreational SCS preferred alternative in the DEIS, Alternative D4, was 
not consistent with the State's enforceable policies because the State 
already has in place adequate protection of blacknose sharks in State 
waters. As described above, based on public comment and because the No 
Action alternative is effectively the same as a prohibition of 
blacknose sharks due to the current 54 inch size limit in the 
recreational fishery, NMFS no longer prefers alternative D4 in the 
FEIS. The preferred alternative in the FEIS and this final rule is D1, 
the status quo alternative. The letter from the State of Florida noted 
that if NMFS changed the preferred alternative to D1, Amendment 3 would 
be consistent with the State's CMP. Therefore, NMFS considers the 
actions in the FEIS to be consistent with the State of Florida's CMP.

B. Response to the State of Georgia

    In a September 10, 2009, letter, the State of Georgia stated that 
Georgia Department of Natural Resources (GDNR) had determined that the 
provisions in the draft Amendment 3 to the Consolidated HMS FMP 
(Amendment 3) are conditionally consistent with the Georgia Coastal 
Management Program (GCMP) to the maximum extent practicable. This 
determination is conditional upon the preferred alternatives included 
in the FEIS for Amendment 3. To be consistent with the GCMP, the letter 
maintains that the preferred alternatives must include: A4 and B3 
(reduced blacknose shark quota and a prohibition on gillnets in the 
southern shark fishery); C5, C6, E3, and E4 (international shortfin 
mako shark management measures and encouraging the live release of 
shortfin mako sharks); D1 (the No Action alternative with respect to 
the recreational blacknose shark fishery); and F2 (bring smooth dogfish 
under Federal management). Thus, with the exception of alternatives A4 
and B3, all of the final action in the FEIS of Amendment 3 and this 
final rule are supported by GDNR.
    As detailed in Chapters 2 and 4 of the FEIS for Amendment 3, NMFS 
altered the preferred alternative in the FEIS and this final rule to 
maintain the current blacknose shark recreational size and retention 
limits (D1) and to allow gillnet gear in all areas of the Atlantic 
shark fishery. Based upon public comment, revised SEFSC blacknose shark 
weight data, observer data, and additional gillnet selectivity 
analyses, NMFS changed the preferred alternatives in the FEIS to 
include A6 and B1 rather than A4 and B3. These two preferred 
alternatives will establish the blacknose shark quota at 19.9 mt dw, 
maintain a non-blacknose SCS quota at average current landings, and 
continue to authorize gillnet gear in the southern shark fishery. Due 
to the change of the commercial gear preferred alternative, the State 
of Georgia objects to the consistency determination because of the 
continuing operation of the shark gillnet fishery in Federal waters, 
which could potentially impact resources shared by adjacent State 
waters. Additionally, the State of Georgia has concerns regarding the 
impact of the shark gillnet fishery on threatened and endangered 
species. The data currently available for the shark gillnet fishery 
indicate low rates of bycatch and bycatch mortality of protected 
species and other finfish in this fishery compared to other HMS 
fisheries (see Chapter 3 the FEIS).
    While NMFS acknowledges the concern of protected resources 
interactions with gillnet gear, under the Magnuson-Stevens Fishery 
Conservation and Management Act's (16 U.S.C. 1801 et seq.) National 
Standards (NS), the Agency must, among other things, implement 
conservation and management measures to prevent overfishing while 
achieving, on a continuing basis, the optimum yield from each fishery; 
base its actions upon the best scientific information available; manage 
stocks throughout their range to the extent practicable; minimize 
adverse economic impacts on fishing communities to the extent 
practicable; and minimize bycatch and bycatch mortality to the extent 
practicable. 16 U.S.C. 1851(a)(1), (2), (3), (8), and (9). In the 
preparation of the FEIS, NMFS

[[Page 30513]]

performed an analysis on the SCS gillnet fishery using updated average 
blacknose shark weights from the SEFSC and observer data. This analysis 
concluded that SCS gillnet fishermen were able to selectively target 
certain SCS species while avoiding blacknose sharks. Furthermore, when 
the shark gillnet fishery catches blacknose sharks, they are usually 
larger, more mature individuals than those caught in other gears. These 
two findings, in concert, make for less significant ecological benefits 
of prohibiting gillnets than previously believed. The significant 
adverse economic and social impacts resulting from a geographical ban 
on gillnets in the shark fishery outweigh the ecological benefits to 
blacknose sharks. Therefore, NMFS is not prohibiting the use of gillnet 
gear at this time. This finding is consistent with NS 2 which requires 
that management measures be based on the best scientific information 
available including the BiOp. Based on this information and combined 
with the Magnuson-Stevens Act legal requirements noted in this 
paragraph, under the CZMA and NOAA regulations, NMFS is consistent to 
the maximum extent practicable with Georgia's CMP enforceable policies.
    On May 5, 2008, NMFS' Southeast Regional Office of Protected 
Resources Division completed a BiOp regarding the actions under 
Amendment 2 to the Consolidated HMS FMP. The BiOp, concluded that the 
continued authorization of the gillnet fishery was likely to adversely 
affect, but not likely to jeopardize the continued existence of, green, 
Kemp's ridley, leatherback, and loggerhead sea turtles and smalltooth 
sawfish. The opinion also concluded that marine mammals, the Gulf of 
Maine Atlantic salmon Distinct Population Segment (DPS), shortnose 
sturgeon, Gulf sturgeon, and right whale critical habitat were not 
likely to be adversely affected by the action. The Atlantic shark 
fishery continues to be in compliance with the terms and conditions of 
the ITS in the 2008 BiOp. The SCS measures in Amendment 3 are expected 
to reduce fishing effort and reduce the fishery's impact on ESA-listed 
species in the action area.
    Currently, all shark gillnet vessels are required to carry a vessel 
monitoring system (VMS) and are subject to observer coverage during and 
outside of the right whale calving season. In addition, more stringent 
management measures were put in place under a final rule for the 
Atlantic Large Whale Take Reduction Plan (ALWTRP) (72 FR 34632, June 
25, 2007) that prohibits all gillnet fishing from November 15 through 
April 15 of each year in Federal waters off Georgia. NMFS will continue 
to work with existing take reduction teams and relevant Fishery 
Management Councils to examine methods of reducing bycatch. Thus, NMFS 
finds that the final regulations implemented in this amendment are 
consistent with Georgia's CMP to the maximum extent practicable.
    At this time, there is not sufficient information to support a 
closure of the shark gillnet fishery in Federal waters adjacent to 
Georgia, pursuant to the CZMA. This decision is consistent with NS 2 of 
the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.), which requires that 
management measures be based on the best scientific information 
available including the BiOp. NMFS has determined that the final 
actions in Amendment 3 and its implementing rule are consistent to the 
maximum extent practicable with the enforceable policies of the GCMP.

C. Response to the State of North Carolina

    The State of North Carolina in a September 15, 2009, letter stated 
that the provisions in Amendment 3 will only be consistent with the 
State's enforceable policies if NMFS selects alternatives A2 and F1 in 
the DEIS as the preferred alternatives in the FEIS. The State of North 
Carolina determined that any alternative other than A2 in the DEIS 
would disproportionately impact the State by removing fair and 
equitable distribution of SCS quota. As detailed in Chapter 2 of the 
FEIS, NMFS has changed the preferred alternative in the FEIS to allow 
for a restricted blacknose quota, but a higher non-blacknose SCS quota 
that is equal to the average annual landings of the non-blacknose SCS. 
The preferred alternative in this FEIS, alternative A6, includes a 
higher blacknose shark quota (19.9 mt dw) than that favored by the 
State of North Carolina (13.5 mt dw). The non-blacknose shark SCS quota 
in alternative A6 (221.6 mt dw) is not as high as that favored by the 
State of North Carolina (392.5 mt dw) but it is equal to the average 
annual landings and should not change the distribution of SCS quota.
    In the preparation of the FEIS for Amendment 3, NMFS performed an 
analysis on the SCS gillnet fishery using updated average blacknose 
shark weights from the SEFSC and observer data. This analysis concluded 
that SCS gillnet fishermen were able to selectively target certain SCS 
species while avoiding blacknose sharks. Furthermore, when the shark 
gillnet fishery catches blacknose sharks, they are usually larger, more 
mature individuals than those caught in other gears. These two 
findings, in concert, make for less significant ecological benefits of 
prohibiting gillnets than previously believed. The significant negative 
economic and social impacts resulting from a geographical ban on 
gillnets in the shark fishery outweigh the ecological benefits to 
blacknose sharks. For these reasons, NMFS is not prohibiting the use of 
gillnet gear at this time. This finding is consistent with NS 2 which 
requires that management measures be based on the best scientific 
information available including the BiOp. Therefore, NMFS believes the 
preferred alternative in the FEIS is consistent with the State of North 
Carolina's CMP policies based on the higher non-blacknose SCS quota.
    The State of North Carolina also determined that the smooth dogfish 
preferred alternative, Alternative F2, was inconsistent with the 
State's enforceable policies. The State's letter maintained that any 
alternative other than F1 would be inconsistent because the 
implementing measures would be contrary to the measures in State waters 
and ASMFC smooth dogfish measures, particularly in a fishery that 
primarily occurs in State waters. Based upon a July 6, 2009, memo to 
the ASMFC, data from North Carolina's Trip Ticket program shows that 
the smooth dogfish fishery is almost equally divided between State and 
Federal waters off the North Carolina coast with 46 percent of the 
catch occurring in Federal waters. NMFS recognizes that some of the 
smooth dogfish measures included in the FEIS are inconsistent with the 
ASMFC plan. However, NMFS decided not to mirror the ASMFC smooth 
dogfish measures because the ASMFC plan contains some provisions that 
NMFS cannot implement and does not include others that NMFS must 
implement.
    On May 6, 2009, the ASMFC approved a smooth dogfish Addendum to the 
Atlantic Coastal Sharks FMP for public comment. Included within this 
Addendum is an exception for smooth dogfish to allow at-sea processing 
(i.e., removal of shark fins while still onboard a fishing vessel), 
removal of recreational retention limits for smooth dogfish, and 
removal of the two hour net-check requirement for shark gillnets. The 
at-sea processing would require a five-percent fin to carcass ratio but 
would allow for the removal of fins at sea. The allowance for the 
removal of shark fins while still on board a fishing vessel and the 
removal of the two hour net-check requirement is inconsistent with 
current Federal regulations. NMFS considers the requirement to maintain 
shark fins

[[Page 30514]]

naturally attached through offloading to be necessary for species 
identification and to prevent shark finning. NMFS recently implemented 
the fins naturally attached regulation for all Atlantic sharks for 
enforcement and species identification reasons and would not want to 
open a loophole that would hinder enforcement. ASMFC has not 
established a quota for the smooth dogfish fishery and, as noted above, 
NMFS is required to establish ACLs and AMs under the Magnuson-Stevens 
Fishery Conservation and Management Act. In addition, ASMFC has not 
established a permitting requirement. NMFS believes that permitting is 
the first step to gaining information about the fishery and quantifying 
the universe of participants. Nonetheless, NMFS will continue to work 
with ASMFC to ensure Federal and State regulations are consistent to 
the extent practicable. Based on NMFS' existing legal requirements, 
NMFS is consistent with NC CMP enforceable policies to the maximum 
extent practicable.
    During the DEIS public comment period, the smooth dogfish fishery 
participants noted significant concern regarding the fins attached 
requirement. NMFS believes that requiring that fins remain attached to 
the carcass is an important component of shark management. However, in 
order to mitigate potential impacts to the smooth dogfish fishery 
participants, NMFS is delaying implementation of the management 
measures in the preferred alternative until the beginning of the 
fishing season in 2012. The delayed implementation will allow NMFS time 
to continue outreach efforts with fishery participants and work with 
ASMFC to ensure that Federal and State regulations are consistent to 
the extent practicable.
    For these reasons, NMFS finds the preferred alternatives in the 
FEIS, alternatives A6 and F2, to be consistent to the maximum extent 
practicable with the enforceable policies of the State of North 
Carolina's CMP.

Biological Opinion for Smooth Dogfish

    The NMFS Southeast Regional Office Protected Resources Division 
(SERO PRD) has initially determined that management of smooth dogfish 
may adversely affect ESA-listed species including but not limited to 
endangered marine mammals such as the blue whale, fin whale, humpback 
whale, northern right whale, sei whale, and sperm whale; endangered sea 
turtles such as Hawksbill, Kemp's ridley, and leatherback; threatened 
sea turtles such as loggerhead and olive ridley; the endangered and 
threatened green sea turtle; and the endangered smalltooth sawfish. 
Based on this determination, NMFS initiated formal Section 7 
consultation in accordance with the ESA, paragraph 7(a)(2), and 
provided SERO PRD with the information required by 50 CFR 402.14(c). As 
such, NMFS is currently engaged in formal consultation under the ESA 
with SERO PRD to determine the potential level of incremental effect 
that may arise as a result of the preferred management measures for 
smooth dogfish in this final rule. SERO PRD has not yet issued a final 
BiOp for the smooth dogfish fishery. NMFS will review that BiOp once it 
is issued and supplement the analysis in the FEIS if the consultation 
reveals any new or significant effects with respect to the interaction 
between gillnet fishing for smooth dogfish and protected species that 
were not considered in the 2008 BiOp for Amendment 2 to the 2006 
Consolidated HMS FMP. This final rule incorporates by reference the 
2008 BiOp for Amendment 2 to the 2006 Consolidated HMS FMP. A detailed 
discussion of the effects of such management relevant to the shark 
fishery is included in that document. NMFS will not take any management 
action with respect to the smooth dogfish fishery prior to its receipt 
of a final BiOp. It will maintain the status quo for management of the 
species prior to completion of formal Section 7 consultation and 
receipt of a final BiOp.

Summary of the Final Regulatory Flexibility Analysis

    A final regulatory flexibility analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the Initial Regulatory Flexibility 
Analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, and NMFS responses to those 
comments, and a summary of the analyses completed to support the 
action. The full FRFA is available from NMFS (see ADDRESSES). A summary 
is provided below.

A. Statement of the Need for and Objectives of the Final Rule

    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
a succinct statement of the need for and objectives of the rule. 
Chapter 1 of the FEIS fully describes the need for and objectives of 
this final rule. In brief, the management goals and objectives of the 
preferred management measures are to provide for the sustainable 
management of shark species under authority of the Secretary consistent 
with the requirements of the Magnuson-Stevens Act and other statutes 
which may apply to such management, including the ESA and MMPA. The 
primary mandate of the Magnuson-Stevens Act is for the Secretary to 
provide for the conservation and management of Atlantic HMS through 
development of an FMP for species identified for management and to 
implement the FMP with necessary regulations. In addition, the 
Magnuson-Stevens Act directs the Secretary, in managing HMS to prevent 
overfishing of species while providing for their OY on a continuing 
basis and to rebuild fish stocks that are considered overfished. The 
management objectives of the preferred management measures are to amend 
the 2006 Consolidated HMS FMP to ensure that overfishing of both the 
blacknose shark and shortfin mako is ended, the blacknose shark stock 
is rebuilt, and smooth dogfish is brought under the management 
jurisdiction of the Secretary.

B. A Summary of Significant Issues Raised by the Public Comments in 
Response to the IRFA

    Section 604(a)(2) of the RFA requires a summary of the significant 
issues raised by the public comments in response to the IRFA, a summary 
of the assessment of the Agency of such issues, and a statement of any 
changes made in the rule as a result of such comments. NMFS received 
many comments on the proposed rule and draft Amendment 3 during the 
public comment period. A summary of these comments and the Agency's 
responses, including changes as a result of public comment, are 
included above. For general economic comments, see section H in 
``Responses to Comments.'' NMFS did not receive comments specifically 
on the IRFA.

C. A Description and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply

    Section 604(a)(3) of the RFA requires a description and estimate of 
the number of small entities to which the final rule would apply. NMFS 
considers all HMS permit holders to be small entities because they 
either had average annual receipts less than $4.0 million for fish-
harvesting, average annual receipts less than $6.5 million for charter/
party vessels, 100 or fewer employees for wholesale dealers, or 500 or 
fewer employees for seafood processors. These are the Small Business 
Administration (SBA) size standards for defining a small versus large 
business entity in this industry.
    The preferred management measures would apply to the 502 commercial 
shark permit holders in the Atlantic shark fishery based on an analysis 
of permit holders on March 18, 2009. Of

[[Page 30515]]

these permit holders, 223 have directed shark permits and 279 hold 
incidental shark permits. Not all permit holders are active in the 
fishery in any given year. NMFS estimates that between 2004 and 2007, 
approximately 85 vessels with directed shark permits and 31 vessels 
with incidental shark permits landed SCS. A further breakdown of these 
permit holders is provided in Amendment 3.
    The recreational measures proposed would also impact HMS Angling 
category and HMS Charter/Headboat category permit holders. In general, 
the HMS Charter/Headboat category permit holders can be regarded as 
small businesses, while HMS Angling category permits are typically 
obtained by individuals who are not considered small entities for 
purposes of the RFA. In 2008, 4,837 vessels obtained HMS Charter/
Headboat category permits. Table 3.27 of Amendment 3 provides the 
geographic distribution of these permit holders by State and the 
overall historic trend in the number of permit holders since 2006. It 
is unknown what portion of these permit holders actively participate in 
shark fishing or market shark fishing services for recreational 
anglers.
    Finally, the final action to add smooth dogfish under NMFS 
management and develop management measures, such as a Federal permit 
requirement, would impact an additional group of small entities. The 
number of entities impacted by this final action cannot be precisely 
measured at this time, since there is currently no Federal permit 
requirement for smooth dogfish fishing. Utilizing VTR and Coastal 
Logbook data, an estimate of the number of participants in the 
commercial smooth dogfish fishery can be calculated. Within the VTR 
data, a primarily Northeast U.S. reporting system, an average of 213 
vessels reported smooth dogfish landings per year between 2004 and 
2007. Within the Coastal Logbooks data, a primarily Southeast U.S. 
reporting system, an average of 10 vessels reported smooth dogfish 
landings per year between 2004 and 2007. From these data, an estimated 
223 commercial vessels would require a smooth dogfish permit.
    To estimate the number of recreational participants in the smooth 
dogfish fishery, NMFS examined MRFSS data. Based on MRFSS data from 
2004 to 2007, an average of 58,161 smooth dogfish were retained per 
year by private anglers and charter/headboats (CHBs) in the 
recreational fishery. This number is the upper limit of participants in 
the Federal recreational fishery of the species, and is likely much 
lower since multiple individual fish are expected to have been caught 
by one fisherman. Furthermore, based on the life history of the species 
and the fact the most recreational fisherman are shore-based, the vast 
majority of smooth dogfish caught recreationally are in coastal, State 
waters and would not require a Federal HMS angling permit.
    NMFS has determined that the final rule would not likely affect any 
small governmental jurisdictions. More information regarding the 
description of the fisheries affected, and the categories and number of 
permit holders can be found in Amendment 3.

D. A Description of the Projected Reporting, Record-Keeping, and Other 
Compliance Requirements of the Final Rule

    Section 604(a)(4) of the RFA requires a description of the 
projected reporting, record-keeping, and other compliance requirements 
of the final rule, including an estimate of the classes of small 
entities which would be subject to the requirements of the report or 
record. The commercial and recreational measures for SCS and pelagic 
sharks would not introduce any new reporting and record-keeping 
requirements. However, alternative F2 would implement Federal 
management of smooth dogfish and establish a permit for commercial and 
recreational retention of smooth dogfish in Federal waters. The Federal 
permit requirement for smooth dogfish would allow NMFS to collect data 
regarding participants in the fishery and landings through Federal 
shark dealer reports. The Federal dogfish permit requirement would 
require a similar permit application to the other current HMS permits. 
The information collected on the application would include vessel 
information and owner identification and contact information. A modest 
fee to process the application and annual renewal would also likely be 
required. The cost would likely be similar to the current fee 
associated with the Atlantic Tunas General Category and Atlantic HMS 
Angling permits, which both cost $16 in 2009 to obtain.

E. A Description of the Steps Taken To Minimize the Significant 
Economic Impact on Small Entities

    Section 604(a)(5) of the RFA requires a description of the steps 
the Agency has taken to minimize the significant economic impact on 
small entities consistent with the stated objectives of applicable 
statutes, including a statement of the factual, policy, and legal 
reasons for selecting the alternative adopted in the final rule and the 
reason that each one of the other significant alternatives to the rule 
considered by the Agency which affect small entities was rejected. 
These impacts are discussed below and in the FEIS for Amendment 3. 
Additionally, the RFA lists four general categories of ``significant'' 
alternatives that would assist an agency in the development of 
significant alternatives (5 U.S.C. 603(c)(1)-(4)). These categories of 
alternatives are: establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; clarification, consolidation, or 
simplification of compliance and reporting requirements under the rule 
for such small entities; use of performance rather than design 
standards; and, exemptions from coverage of the rule for small 
entities.
    In order to meet the objectives of this final rule, consistent with 
the Magnuson-Stevens Act and ESA, NMFS cannot exempt small entities or 
change the reporting requirements only for small entities because all 
the entities affected are considered small entities. Thus, there are no 
alternatives discussed that fall under the first and fourth categories 
described above. NMFS does not know of any performance or design 
standards that would satisfy the aforementioned objectives of this 
rulemaking while, concurrently, complying with the Magnuson-Stevens 
Act. Thus, there are no alternatives considered under the third 
category. As described below, NMFS analyzed several different 
alternatives in this rulemaking and provides rationale for identifying 
the final actions to achieve the desired objective.
    The alternatives considered and analyzed have been grouped into 
three major categories. These categories include commercial measures, 
recreational measures, and smooth dogfish-related measures. Under 
commercial measures, alternatives for SCS commercial quotas, gear 
restrictions, and pelagic shark effort controls were considered and 
analyzed. The SCS commercial quota alternatives include: (A1) Maintain 
the existing SCS quota; (A2) establish a new SCS quota of 392.5 mt dw 
and a blacknose commercial quota of 13.5 mt dw; (A3) establish a new 
SCS quota of 42.7 mt dw and a blacknose commercial quota of 16.6 mt dw; 
allow all current authorized gears for sharks; (A4) establish a new SCS 
quota of 56.9 mt dw and a blacknose commercial quota of 14.9 mt dw; 
remove shark gillnet gear as an authorized gear for sharks; (A5) close 
the SCS fishery; and (A6) establish a

[[Page 30516]]

new SCS quota of 221.6 mt dw and a blacknose commercial quota of 19.9 
mt dw. The commercial gear restrictions alternatives include: (B1) 
Maintain current authorized gears for commercial shark fishing; (B2) 
close shark gillnet fishery; remove gillnet gear as an authorized gear 
type for commercial shark fishing; and (B3) close the gillnet fishery 
to commercial shark fishing from South Carolina south, including the 
Gulf of Mexico and the Caribbean Sea. The pelagic shark effort controls 
alternatives include: (C1) Keep shortfin mako sharks in the pelagic 
shark species complex and do not change the quota; (C2) remove shortfin 
mako sharks from pelagic shark species quota and establish a shortfin 
mako quota; (C3) remove shortfin mako sharks from pelagic shark species 
complex and place this species on the prohibited shark species list; 
(C4a) establish a minimum size limit for shortfin mako sharks that is 
based on the size at which 50 percent of female shortfin mako sharks 
reach the sexual maturity or 32 inches interdorsal length (IDL); (C4b) 
establish a minimum size limit for shortfin makos that is based on the 
size at which 50 percent of male shortfin mako sharks reach the sexual 
maturity or 22 inches IDL; (C5) take action at the international level 
to end overfishing of shortfin mako sharks; and (C6) promote the 
release of shortfin mako sharks brought to fishing vessels alive.
    Under recreational measures, NMFS considered alternatives for both 
SCS and pelagic sharks. The recreational measures considered for SCS 
include: (D1) Maintain the current recreational retention and size 
limit for SCS; (D2) modify the minimum recreational size for blacknose 
sharks based on their biology, (D3) increase the retention limit for 
Atlantic sharpnose sharks based on current catches; and (D4) prohibit 
retention of blacknose sharks in recreational fisheries. The 
recreational measures considered for pelagic sharks include: (E1) 
Maintain the current recreational measures for shortfin mako sharks; 
(E2a) establish a minimum size limit for shortfin makos that is based 
on the size at which 50 percent of female shortfin mako sharks reach 
sexual maturity or 108 in FL; (E2b) establish a minimum size limit for 
shortfin makos that is based on the size at which 50 percent of male 
shortfin mako sharks reach sexual maturity or 73 inches FL; (E3) take 
action at the international level to end overfishing of shortfin mako 
sharks; (E4) promote the release of shortfin mako sharks brought to 
fishing vessels alive; and (E5) prohibit retention of shortfin mako 
sharks in recreational fisheries (catch and release only).
    Finally, NMFS also considered alternatives for managing smooth 
dogfish. These alternatives include: (F1) Do not add smooth dogfish 
under NMFS management, (F2) add smooth dogfish under NMFS management 
and establish a Federal permit requirement, and (F3) add smooth dogfish 
under NMFS management and mirror management measures implemented in the 
ASMFC Interstate Shark FMP. NMFS considered several alternatives for 
adding smooth dogfish under NMFS management. These alternatives 
include: (F2 a1) Establish a smooth dogfish quota that is equal to the 
average annual landings from 1998-2007 (950,859 lb dw); (F2 a2) 
establish a smooth dogfish quota equal to the maximum annual landing 
between 1998-2007 (1,270,137 lb dw); (F2 a3) establish a smooth dogfish 
quota equal to the maximum annual landing between 1998-2007 plus one 
standard deviation (1,423,727 lb dw); (F2 b1) establish a separate 
smooth dogfish set-aside quota for the exempted fishing program of 6 mt 
ww; and (F2 b2) establish a smooth dogfish set-aside quota for the 
exempted fishing program and add it to the current 60 mt ww set aside 
quota for the exempted fishing program.
    The potential impacts these alternatives may have on small entities 
have been analyzed and are discussed in the following sections. The 
final actions include: A6, B1, C5, C6, D1, E3, E4, F2, and preferred 
sub-alternatives F2 a4 and F2 b1. The economic impacts that would occur 
under these actions were compared with the other alternatives to 
determine if economic impacts to small entities could be minimized 
while still accomplishing the stated objectives of this rule.
    Under the No Action alternative, A1, there would be no additional 
economic impacts to directed and incidental shark permit holders as the 
average annual gross revenues from SCS landings, including blacknose 
shark landings, would be the same as the status quo. The average annual 
gross revenues from 2004 through 2007 from all SCS meat and fins was 
$830,918. Based on data from 2004 to 2007 for directed and incidental 
shark permit holders that landed non-blacknose SCS, the average 
directed shark permit holder earned $9,765 in average annual gross 
revenues, and the average incidental shark permit holder earned $687 in 
average annual gross revenues from non-blacknose SCS landings. For 
those permit holders that actually landed blacknose shark during that 
same time period, the average directed shark permit holder earned 
$3,638 in average annual gross revenues, and the average incidental 
shark permit holder earned $1,721 in average annual gross revenues from 
blacknose shark landings. These revenues are not expected to be 
impacted by alternative A1. However, since alternative A1 would not 
reduce blacknose shark mortality to the level needed to rebuild 
blacknose sharks, NMFS did not select this alternative at this time.
    Under the revised alternative A2, NMFS would remove blacknose 
sharks from the SCS quota and create a blacknose shark-specific quota 
of 12.1 mt dw and a separate ``non-blacknose SCS'' quota, which would 
apply to finetooth, Atlantic sharpnose, and bonnethead sharks, of 221.6 
mt dw. NMFS anticipates that non-blacknose SCS landings should not 
decrease as the non-blacknose SCS quota would only be reduced by the 
average blacknose shark landings. Therefore, the 68 directed and 29 
incidental shark permit holders that had non-blacknose SCS landings 
would not be affected by the new non-blacknose SCS quota. However, the 
blacknose shark quota would be a 78-percent reduction based on average 
landings from 2004-2007. Average annual gross revenues for the 
blacknose shark landings for the entire fishery would decrease from 
$172,110 under the No Action alternative down to $33,611 under 
alternative A2, which is an 80-percent reduction in average annual 
gross revenues for blacknose sharks. Thus, the 44 directed and 7 
incidental shark permit holders that had blacknose shark landings would 
be affected by the new blacknose shark quota. As directed permit 
holders landed the majority of blacknose shark under the No Action 
alternative, it is anticipated that directed permit holders would 
experience the largest impacts under alternative A2. The decrease in 
average annual gross revenues for directed and incidental permit 
holders would depend on the specific trip limit associated with the 
blacknose quota established under A2. However, because discards would 
continue as fishermen directed on non-blacknose SCS, regardless of the 
retention limits, overall mortality for blacknose sharks would still be 
above the commercial allowance of 7,094 blacknose sharks/year, even if 
the retention of blacknose sharks was prohibited. Therefore, NMFS did 
not select this alternative at this time.
    Under the revised alternative A3, NMFS would remove blacknose 
sharks from the SCS quota and create a blacknose shark-specific quota 
of 19.9 mt dw and a separate ``non-blacknose SCS'' quota of 110.8 mt 
dw, which

[[Page 30517]]

would apply to finetooth, Atlantic sharpnose, and bonnethead sharks. 
NMFS determined that by reducing the overall SCS fishery, NMFS would 
reduce the level of blacknose shark discards such that the total 
blacknose shark mortality would stay below the commercial allowance.
    While trip limits would not change for non-blacknose SCS for 
directed and incidental permit holders (i.e., no trip limit for 
directed fishermen and a 16 non-blacknose SCS/pelagic sharks combined 
trip limit for incidental fishermen), given the reduction in the non-
blacknose SCS quota, NMFS anticipates that the 68 directed and 29 
incidental permit holders that had non-blacknose SCS landings would be 
affected by the new non-blacknose SCS quota. Average annual gross 
revenues for non-blacknose SCS landings for the entire fishery are 
anticipated to be $310,222. This is a 53-percent reduction in average 
annual gross revenues compared to average annual gross revenues 
expected under the No Action alternative, A1. Since directed permit 
holders land approximately 97 percent of the non-blacknose SCS landings 
as explained in alternative A1, NMFS anticipates that directed permit 
holders would lose more in average annual gross revenues from non-
blacknose SCS landings compared to incidental permit holders under 
alternative A3. Average annual gross revenues for directed shark permit 
holders of non-blacknose SCS under alternative A3 would be $300,916, 
which is a loss of $343,200 in average annual gross revenues or a 53-
percent reduction in average annual gross revenues from the average 
annual gross revenues expected under the No Action alternative, A1. 
Spread amongst the directed shark permit holders that land non-
blacknose SCS, this is an anticipated loss of $5,047 in average annual 
gross revenues from non-blacknose SCS landings per permit holder. 
Incidental permit holders land approximately 3 percent of the non-
blacknose SCS. Average annual gross revenues for incidental shark 
permit holders of non-blacknose SCS under alternative A3 would be 
$9,307, which is a loss of $10,614 in average annual gross revenues or 
also a 53 percent reduction in average annual gross revenues from the 
average annual gross revenues expected under the No Action alternative, 
A1. Spread amongst the incidental shark permit holders that land non-
blacknose SCS, this is an anticipated loss of $366 in average annual 
gross revenues from non-blacknose SCS landings per permit holder.
    The blacknose shark quota would be reduced to 19.9 mt dw based on 
average landings from 2004-2008. In addition, in order to keep the 
total mortality of blacknose sharks below the commercial allowance for 
the HMS Atlantic shark fishery, incidental shark permit holders would 
not be allowed to retain blacknose sharks under alternative A3. Thus, 
the 44 directed and 7 incidental shark permit holders that had 
blacknose shark landings would be affected by the new blacknose shark 
quota. Since incidental permit holders would not be able to retain 
blacknose sharks, the total blacknose shark quota would be available 
only to directed shark permit holders. Average annual gross revenues 
for the blacknose shark landings for the directed fishery would 
decrease from $160,062 under the No Action alternative down to $51,409 
under alternative A3, which is a loss of $108,653 or a 68-percent 
reduction in average annual gross revenues for blacknose sharks for 
directed shark fishermen. Spread amongst the directed shark permit 
holders that land blacknose sharks, there would be an anticipated loss 
of $2,469 in average annual gross revenues from blacknose landings per 
permit holder. However, since incidental shark permit holders would not 
be able to retain blacknose sharks, they would lose an estimated $8,179 
in average annual gross revenues from blacknose shark landings. Spread 
amongst the incidental permit holders that land blacknose sharks, there 
would be an anticipated loss of $1,168 in average annual gross revenues 
from blacknose landings per permit holder.
    Given the large reduction in the non-blacknose SCS quota under 
alternative A3, which would affect more directed and incidental permit 
holders compared to the smaller reduction in the non-blacknose SCS 
quota under alternative A6, NMFS did not select alternative A3 at this 
time.
    Under alternative A4, NMFS would remove blacknose sharks from the 
SCS quota and create a blacknose shark-specific quota and a separate 
``non-blacknose SCS'' quota equal to 55.4 mt dw, which would apply to 
finetooth, Atlantic sharpnose, and bonnethead sharks. NMFS determined 
that by reducing the overall SCS fishery, NMFS could reduce the level 
of blacknose shark discards such that the total blacknose shark 
mortality would stay below the commercial allowance. NMFS would 
establish a blacknose-specific quota of 15.9 mt dw, which is the amount 
of blacknose sharks that would be landed while the non-blacknose SCS 
quota is taken; however, incidental fishermen would not be allowed to 
retain any blacknose sharks under alternative A4. In addition, this 
alternative assumes that gillnet gear would not be used to harvest 
sharks as explained under alternatives B2 and B3.
    While trip limits would not change for non-blacknose SCS for 
directed and incidental permit holders (i.e., no trip limit for 
directed fishermen and a 16 non-blacknose SCS/pelagic sharks combined 
trip limit for incidental fishermen), given the reduction in the non-
blacknose SCS quota, NMFS anticipates that the 41 directed and 22 
incidental shark permit holders that did not use gillnet gear to land 
non-blacknose SCS would be affected by the new non-blacknose SCS quota. 
Average annual gross revenues for non-blacknose SCS landings for the 
entire fishery are anticipated to be $155,111. This is a 76-percent 
reduction in average annual gross revenues compared to the average 
annual gross revenues expected under the No Action alternative, A1. 
Since directed shark permit holders land approximately 97 percent of 
the non-blacknose SCS landings as explained in alternative A1, NMFS 
anticipates that directed shark permit holders would lose more in 
average annual gross revenues from non-blacknose SCS landings compared 
to incidental shark permit holders under alternative A4. Average annual 
gross revenues for directed shark permit holders of non-blacknose SCS 
under alternative A4 would be $150,458, which is a loss of $493,658 in 
average annual gross revenues or a 77-percent reduction in average 
annual gross revenues from the average annual gross revenues expected 
under the No Action alternative, A1. Spread amongst the directed shark 
permit holders that did not use gillnet gear to land non-blacknose SCS, 
there could be an anticipated loss of $12,040 in average annual gross 
revenues from non-blacknose SCS landings per permit holder. Incidental 
shark permit holders land approximately 3 percent of the non-blacknose 
SCS landings as explained in alternative A1. Average annual gross 
revenues for incidental shark permit holders of non-blacknose SCS under 
alternative A4 would be $4,653, which is a loss of $15,268 in average 
annual gross revenues or a 77-percent reduction in average annual gross 
revenues from the average annual gross revenues expected under the No 
Action alternative, A1. Spread amongst the incidental shark permit 
holders that did not use gillnet gear to land non-blacknose SCS, there 
could be an anticipated loss of $694 in average annual gross revenues 
from non-

[[Page 30518]]

blacknose SCS landings per permit holder.
    The blacknose shark quota would also be a 72-percent reduction 
based on average landings from 2004 though 2008. In addition, in order 
to keep the total mortality of blacknose sharks below the commercial 
allowance for the HMS Atlantic shark fishery, incidental shark permit 
holders would not be allowed to retain blacknose sharks under 
alternative A4. Thus, the 15 directed and 5 incidental shark permit 
holders that did not use gillnet gear to land blacknose sharks would be 
affected by the new blacknose shark quota. Since incidental shark 
permit holders would not be able to retain blacknose sharks, the total 
blacknose shark quota would be available only to directed shark permit 
holders. Average annual gross revenues for the blacknose shark landings 
for the directed fishery would decrease from $160,062 under the No 
Action alternative down to $41,075 under alternative A4, which is a 
loss of $118,987 or a 74-percent reduction in average annual gross 
revenues from blacknose sharks for directed shark permit holders. 
Spread amongst the directed shark permit holders that did not use 
gillnet gear to land blacknose sharks, there could be an anticipated 
loss of $7,932 in average annual gross revenues from blacknose landings 
per vessel. Incidental shark permit holders would lose an estimated 
$12,048 in average annual gross revenues from blacknose shark landings. 
Spread amongst the incidental shark permit holders that did not use 
gillnet gear to land blacknose sharks, there could be an anticipated 
loss of $1,791 in average annual gross revenues from blacknose landings 
per permit holder.
    By reducing effort in the overall SCS fishery under Alternative A4, 
NMFS could reduce the level of blacknose shark discards such that the 
total blacknose shark mortality would stay below the commercial 
allowance needed to rebuild the stock. Gillnet fishermen would be 
affected the most by alternative A4 in combination with alternative B2 
or B3, with estimated gross revenue losses between $377,928 and 
$365,067 from lost non-blacknose SCS and blacknose landings.
    Alternative A5 would close the entire SCS commercial shark fishery, 
prohibiting the landing of any SCS, including blacknose sharks. Thus, 
this alternative would eliminate landings of all SCS, including 
finetooth, Atlantic sharpnose, bonnethead, and blacknose sharks. This 
would have negative economic impacts on the average 85 directed shark 
permit holders, and the average 31 incidental shark permit holders that 
had SCS landings during 2004-2007. This would result in a loss of 
average annual gross revenues of $664,037 for non-blacknose SCS and 
$172,110 from blacknose shark landings for a total loss of $830,918 in 
average annual gross revenues from SCS landings. Directed shark permit 
holders would lose $644,116 in average annual gross revenues from non-
blacknose SCS landings and $160,062 in average annual gross revenues 
from blacknose shark landings for a total of $805,990 in average annual 
gross revenues. Spread among the 85 directed shark permit holders that 
landed SCS, this could result in a loss in average annual gross 
revenues of $9,482 per permit holder.
    Incidental shark permit holders would lose $19,921 in average 
annual gross revenues from non-blacknose SCS landings and $12,048 in 
average annual gross revenues from blacknose shark landings for a total 
of $31,969 in average annual gross revenues under alternative A5. 
Spread among the 31 incidental shark permit holders that landed SCS, 
this could result in a loss in average annual gross revenues of $1,031 
per permit holder.
    In addition, as gillnet gear is the primary gear used to target 
SCS, it is assumed that directed shark gillnet fishing would end, 
except for fishermen that use gillnet gear to strikenet for blacktip 
sharks. Approximately 11 directed shark permit holders use gillnet gear 
to land LCS. This would result in a decrease in LCS landings of 102,171 
lb dw and a decrease in average annual gross revenues of $107,280. 
Spread among the 11 directed shark permit holders that land LCS with 
gillnet gear, this alternative would result in a loss in average annual 
gross revenues of $9,753 per permit holder.
    While this alternative could reduce blacknose mortality below the 
commercial allowance of 44,853.8 lb dw, it would also completely 
eliminate the fishery for all SCS. Of the alternatives analyzed, 
alternative A5 would result in the most significant economic impacts to 
small entities. In addition, this alternative would severely curtail 
data collection on all SCS that could be used for future stock 
assessments. Thus, NMFS did not select this alternative at this time.
    Alternative A6, the final action, combines parts of alternatives A2 
and A3 that would establish a blacknose species-specific quota of 19.9 
mt dw and a non-blacknose SCS quota of 221.6 mt dw. NMFS designed this 
alternative to minimize economic impacts on shark fishermen and other 
participants in the fishery related to SCS quota reductions. 
Alternative A6 would set the non-blacknose SCS quota at a level equal 
to the average annual landings from 2004 through 2008, and the 
blacknose quota at a level that is a 64 percent reduction of the 
average landings for that species over the same time period. This 
proposal comes in response to recently updated SEFSC data used for 
analysis, and in response to concerns raised by the commercial and 
scientific communities during the comment period for the DEIS. Under 
alternative A6 all currently authorized gears for shark fishing would 
be allowed in the fishery.
    Under the non-blacknose SCS quota proposed in alternative A6, those 
fishermen with the 68 directed shark permits and 29 incidental shark 
permits that had non-blacknose SCS landings would be expected to fish 
as they currently do under the No Action alternative, and shark dealers 
and other entities that deal with shark products would be expected to 
operate as they do under the No Action alternative. Average annual 
gross revenues for non-blacknose SCS landings for the entire fishery 
are anticipated to decline by approximately 6-percent compared to the 
No Action alternative, to $620,445, under alternative A6, representing 
a revenue loss of $43,593. Average annual gross revenue for blacknose 
shark landings for the entire fishery is expected to decline to 
$55,278, a loss of $116,832.
    Since directed shark permit holders accounted for 97 percent of the 
landings for non-blacknose SCS, the total revenue for these fishermen 
would decrease by 6 percent to $601,832, a loss of $42,284 from the No 
Action alternative non-blacknose directed shark permit revenue total of 
$644,116. Spread across the 68 directed shark permit holders that 
reported non-blacknose landings, this would result in a per boat 
decrease of $622 ($42,284/68 directed vessels = $622). With incidental 
shark permit holders accounting for 3 percent of the annual revenue 
from non-blacknose landings based on alternative A6, there would be a 
decrease in total revenue of $1,308, or 7 percent, to $18,613 from the 
No Action Alternative of $19,921. This would result in a loss of 
revenue from non-blacknose SCS per incidental vessel of $45 ($1,308/29 
incidental vessels = $45). Therefore, social and economic impacts of 
the non-blacknose SCS quota on fishermen with directed and incidental 
shark permit would be slightly negative under alternative A6.
    Under the blacknose shark quota 19.9 mt dw, the 44 directed shark 
permit holders and 7 incidental shark permit holders that had blacknose 
shark landings would experience direct

[[Page 30519]]

negative social impacts, as they would most likely have to fish in 
other fisheries to make up for lost blacknose landings or leave the 
fishery altogether. Other entities that deal with blacknose shark 
products, such as shark dealers, would indirectly experience negative 
social impacts as they would also have to change their business 
practices to make up for lost blacknose shark product. In total, 
average annual gross revenues for the blacknose shark landings for the 
directed shark permit holders would decrease from $160,062 under the No 
Action alternative down to $51,409 under alternative A6, which is a 
loss of $108,653 or a 68-percent reduction in average annual gross 
revenues for blacknose sharks for directed shark fishermen. Spread 
amongst the directed shark permit holders that land blacknose sharks, 
there could be an anticipated loss of $2,469 in average annual gross 
revenues from blacknose landings per permit holder ($108,653/44 
directed vessels = $2,469 per vessel). For incidental shark permit 
holders the 68-percent reduction in blacknose shark landings would 
translate into an average annual gross revenue of $3,869, which would 
be a loss of income of $8,179 from the annual average of $12,048 under 
the No Action alternative. Spread amongst the 7 incidental shark permit 
holders, this would result in an annual loss of $1,168 per permit 
holder ($8,179/7 incidental vessels = $1,168).
    Under alternative A6, if either the non-blacknose SCS quota (221.6 
mt dw) or blacknose shark quota (19.9 mt dw), reached 80 percent of the 
available landings, NMFS would close both fisheries for the rest of the 
season. If a future stock assessment determines that blacknose sharks 
are continuing to be overfished or that overfishing is still occurring 
NMFS could make regulatory changes as needed in future management 
actions. These changes may include, but are not limited to reducing the 
blacknose shark quota and/or the non-blacknose SCS quota, and 
implementing daily blacknose catch limits. Alternative A6 would meet 
the rebuilding requirements of the Magnuson-Stevens Act by addressing 
the overfished status and overfishing of blacknose sharks by reducing 
the blacknose shark quota to 19.9 mt dw. While NMFS recognizes that 
there may be negative social and economic impacts on parts of the 
fishing community due to the reduced blacknose shark quota, in 
selecting the quota of 221.6 mt dw for the non-blacknose SCS fishery, 
NMFS is minimizing those negative socioeconomic impacts, especially 
since the bulk of the catch in the SCS fishery comes from shark species 
that have been determined to not be overfished or undergoing 
overfishing (i.e. finetooth, sharpnose, and bonnethead sharks). 
Therefore, NMFS is finalizing alternative A6 at this time.
    Alternative A6 would result in positive ecological impacts to 
blacknose sharks by reducing mortality of this species below the 
commercial allowance of 7,094 blacknose sharks per year that is 
necessary for this stock to rebuild with a 70 percent probability by 
2027 consistent with the rebuilding plan and the objectives of this 
amendment. Alternative A6 would also reduce effort and mortality in the 
non-blacknose SCS fishery, to a level that is equal to the average 
landings for these species for the years 2004 through 2008. Alternative 
A1 (No Action alternative) does not reduce effort or mortality in the 
commercial SCS fishery, so does not address the overfished status or 
overfishing of blacknose sharks. The scenarios under alternative A2 
that eliminate gillnets as an authorized gear and those that eliminate 
retention of blacknose sharks altogether, fail to meet the goal of 
reducing blacknose shark mortality, due to the high number of discards 
of blacknose sharks from those gears that would continue to operate in 
the fishery. For those scenarios under alternative A2 that would 
continue to allow gillnets to be retained as an authorized gear, the 
necessary reduction in blacknose sharks is met, but the quota is 
exceeded. Under alternative A3 the goal of reducing the blacknose shark 
mortality to necessary levels is obtained, but due to the significant 
reduction of the non-blacknose SCS quota, there would be a 67 percent 
increase in discard mortality of non-blacknose SCS. Both alternatives 
A4 and A5 would achieve the necessary blacknose shark mortality 
reduction, but the social and economic impacts on the commercial shark 
permit holders from the reduced quotas would be significant.
    Compared to the other alternatives analyzed, alternative A6 would 
result in the least negative social and economic impacts on the 
participants of the SCS commercial fishery while still meeting the goal 
of reducing mortality and rebuilding blacknose sharks. Under 
alternative A6, the non-blacknose SCS quota of 221.6 mt dw would result 
in a loss of $43,592 in average annual revenues for all permit holders. 
The reduced blacknose quota of 19.9 mt dw would result in a loss of 
$116,833 for all permit holders. Under alternative A2, directed and 
incidental permit holders would lose $138,499 in average annual 
revenue, from the blacknose quota of 12.1 mt dw. Under alternative A3 
as in alternative A6, the blacknose quota of 19.9 mt dw would result in 
an anticipated loss in average annual revenues for directed and 
incidental permit holders. The non-blacknose quota of 110.8 mt dw, 
under alternative A3, would result in a loss of average annual revenues 
to all permit holders of $275,103. Under alternative A4, the reduction 
in blacknose quota to 15.9 mt dw would result in an average annual loss 
of revenues for all permit holders of $124,853. With the prohibition on 
gillnets in alternative A4, all permit holders would lose approximately 
$287,524 from the reduced non-blacknose SCS quota and many would have 
to completely change the way they fished, or to leave the fishery 
entirely. Because alternative A5 would completely close the SCS 
fishery, those directed and incidental permit holders that land non-
blacknose SCS and blacknose sharks would be forced to move into other 
fisheries and would likely create pressure on other commercial species. 
While alternative A1, the No Action alternative, would have the least 
negative social and economic impacts on the SCS commercial fishery 
participants, this alternative does not reduce mortality of blacknose 
sharks in order to meet the rebuilding goals of this amendment or stop 
overfishing of this stock.
    Under alternative B1, the final action, NMFS would maintain the 
current gear restrictions for rod and reel, gillnet, and BLL gear. 
Between the DEIS and the FEIS, NMFS switched to this alternative as the 
preferred alternative to minimize the economic impacts to fishermen and 
other participants in the fishery. The economic impacts of alternative 
B1 would be the same as the status quo, and no negative economic 
impacts would be anticipated under alternative B1. On average from 
2004-2007, the directed and incidental shark permit holders earned 
average annual gross revenues from SCS landings of $833,634, while the 
directed and incidental permit holders that landed LCS earned larger 
gross revenues of $3,328,663. The smooth dogfish fishery is smaller 
than the other fisheries and only has average annual gross revenues of 
$371,786 for State and Federally permitted fishermen reporting to the 
ACCSP. Based on this alternative, the average annual gross revenues of 
these fisheries would remain the same as the status quo. The average 
number of directed and incidental shark permit holders that reported 
SCS landings in the Coastal Fisheries logbook from

[[Page 30520]]

2004-2007 were 116 (85 directed and 31 incidental shark permit 
holders), and the LCS fishery had an annual average of 162 permit 
holders (129 directed and 33 incidental shark permit holders) reporting 
LCS landings in the Coastal Fisheries logbook from 2004-2007. The 
number of permit holders would not be impacted by the No Action 
alternative. NMFS selects this least cost SCS commercial gear 
restriction alternative.
    Under alternative B2, NMFS would remove gillnet gear as an 
authorized gear type for commercial shark fishing. This alternative 
would have significant negative economic impacts by potentially 
affecting 30 directed and 7 incidental shark permit holders. On 
average, directed shark permit holders landed 289,546 lb dw of SCS with 
gillnet gear. This is equivalent to $365,955 in lost average annual 
gross revenues from SCS landings for directed shark permit holders. 
Based on average ex-vessel prices per pound from 2004-2007, directed 
shark permit holders made $807,792 in average annual gross revenues 
from SCS landings. On average, incidental shark permit holders landed 
9,465 lb dw of SCS with gillnet gear. This is equivalent to $11,973 in 
lost average annual gross revenues from SCS landings for incidental 
shark fishermen due to the prohibition of gillnet gear. Based on 
average ex-vessel prices per pound from 2004-2007, incidental shark 
permit holders made $25,843 from SCS landings under the status quo. 
This represents a 45 percent reduction in SCS revenues for directed 
shark permit holders and a 46 percent reduction in SCS revenues for 
incidental shark permit holders compared to the No Action alternative, 
alternative B1.
    This alternative would have a minimal negative economic impact on 
the LCS fishery. Only 11 directed and 5 incidental shark permit holders 
out of the 162 total shark permit holders would be affected. On 
average, directed shark permit holders landed 102,171 lb dw of LCS with 
gillnet gear. This is equivalent to $107,280 in lost average annual 
gross revenues from LCS landings (3 percent reduction). On average, 
incidental shark permit holders landed 1,961 lb dw of LCS with gillnet 
gear. This is equivalent to $2,059 in lost average annual gross 
revenues from LCS landings for incidental shark permit holders due to 
the prohibition of gillnet gear. In total ($109,339), this is 
approximately 3 percent of the gross revenues for the entire LCS 
fishery under the status quo (i.e., $3,328,663).
    Gillnets are also the primary gear type used to catch smooth 
dogfish. Within the VTR data, a primarily Northeast U.S. reporting 
system, an average of 213 vessels reported smooth dogfish landings per 
year between 2004 and 2007. Within the Coastal Fisheries Logbooks data, 
a primarily Southeast U.S. reporting system, an average of 10 vessels 
reported smooth dogfish landings per year between 2004 and 2007. From 
these data, an estimate of 223 vessels would require a smooth dogfish 
permit; however, as fishermen are currently not required to have a 
permit to retain smooth dogfish, this could be an underestimate of the 
number of fishermen that would require a Federal commercial permit for 
smooth dogfish in the future. The average total annual landings from 
1998-2007 was 950,859 lb dw (by State and Federally permitted fishermen 
reporting to the ACCSP, however, since fishermen do not have to 
currently report smooth dogfish landings, this could be an 
underestimate of total landings, and thus, an underestimate of average 
annual gross revenues for this fishery). Based on average ex-vessel 
prices per pound from 2004-2007, average annual gross revenues for the 
entire smooth dogfish fishery totaled $371,786 from smooth dogfish 
landings. Based on the preferred alternative F2, which would require 
fishermen who fish for smooth dogfish in Federal waters to obtain a 
Federal smooth dogfish permit, then under alternative B2, those 
fishermen would not be able to use gillnet gear to land smooth dogfish. 
This would have a negative economic impact on fishermen who previously 
used gillnet gear in Federal waters to land smooth dogfish. However, as 
fishermen do not currently have to have a Federal permit to land smooth 
dogfish, NMFS is uncertain the universe of fishermen who might be 
affected by alternatives B2 and F2 at this time. However, given the 
potential large negative economic impacts of this alternative to the 
SCS, LCS, and smooth dogfish fisheries, NMFS did not select this 
alternative at this time.
    Under alternative B3, NMFS would close the commercial gillnet 
fishery from South Carolina south, including the Gulf of Mexico and the 
Caribbean Sea. This would have a negative economic impact on Federally 
permitted directed and incidental fishermen. In the SCS fishery, this 
alternative would affect an average of 27 directed and 5 incidental 
shark permit holders out of the average 116 total shark permit holders 
that landed SCS from 2004-2007. The SCS gillnet fishery from South 
Carolina south accounts for 44 percent of the total directed shark 
permit holder landings, and 26 percent of landings in the incidental 
fishery. On average, directed shark permit holders landed 283,462 lb dw 
($358,261) of SCS with the gillnet gear from South Carolina south. 
Thus, directed shark fishermen would lose $358,261 in average annual 
gross revenues from SCS landings from the gillnet prohibition under 
alternative B3. Based on average ex-vessel prices from 2004-2007, 
directed shark permit holders made $807,792 in average annual gross 
revenues from SCS landings. On average, incidental shark permit holders 
landed 5,381 lb dw ($6,807) of SCS with gillnet gear from South 
Carolina south. Thus, incidental shark permit holders would lose $6,807 
in average annual gross revenues from non-blacknose SCS landings under 
alternative B3. The directed and incidental shark permit holders would 
lose average annual gross revenues of $365,068 from their current gross 
revenues of $833,634.
    This alternative would have minor economic impacts on the LCS 
fishery. It would only affect 12 directed and incidental shark permit 
holders. The directed shark permit holders would lose $106,189 in 
average annual gross revenues from lost LCS landings in gillnet gear 
from South Carolina south under alternative B3. Incidental shark permit 
holders would lose $290 from lost LCS landings in gillnet gear from 
South Carolina south. In total ($106,479), this is only 3 percent of 
the average annual gross revenues (i.e., $3,328,663) from LCS landings 
compared to the LCS fishery under the status quo.
    Alternative B3, in combination with the final action F2, would not 
affect the economic impacts of the smooth dogfish fishery. Smooth 
dogfish are primarily caught from North Carolina north. The average 
total landings/year is 950,859 lb dw/year (by State and Federally 
permitted fishermen reporting to the ACCSP, however, since fishermen do 
not have to currently report smooth dogfish landings, this could be an 
underestimate of total landings, and thus, an underestimate of average 
annual gross revenues for this fishery), which translates into average 
annual gross revenues of $371,786 lb dw/year from smooth dogfish 
landings. Given that smooth dogfish are not typically landed with 
gillnet gear from South Carolina south, NMFS anticipates that this 
alternative, in combination with the preferred alternative F2, would 
not cause significant loss in average annual gross revenues from smooth 
dogfish landings.
    The No Action alternative, C1, would not modify or alter commercial 
fishing practices for shortfin mako sharks or

[[Page 30521]]

other shark species. There would be no additional economic impacts to 
directed and incidental fishermen as the average annual gross revenues 
from shortfin mako sharks or other shark species would be the same as 
the status quo. On average, 72.5 mt dw of shortfin mako sharks were 
commercially landed between 2004 and 2007, which is equivalent to 
$350,039 in annual revenues. On average between 2004 and 2007, 
approximately 90 vessels had shortfin mako shark landings. Directed 
shark permit holders made up 39 of these vessels. However, since 
shortfin mako is typically incidentally caught, the average landings 
value per vessel was estimated by dividing annual revenues amongst all 
the vessels that have landed shortfin mako. Therefore, the vessels that 
landed shortfin mako generated an average of $3,889 in gross revenues 
per year from shortfin mako sharks. The No Action alternative would not 
allow NMFS to meet statutory requirements to take measures to end 
overfishing. Thus, No Action was not identified as a preferred 
alternative.
    Alternative C2 would implement a species-specific quota for 
shortfin mako at the level of the average annual commercial landings 
for this species. This alternative is expected to have neutral or 
slightly negative economic impacts. On average, 72.5 mt dw (159,834 lb 
dw) of shortfin mako sharks were commercially landed between 2004 and 
2007, which is equivalent to $350,039 in average annual gross revenues. 
Spread amongst the vessels that landed shortfin mako sharks, the 
average vessel earned $3,889 in annual gross revenues from shortfin 
mako sharks. While fishermen would be able to maintain current fishing 
effort under this alternative, any increase in effort would be 
restricted by the species-specific quota of 72.5 mt dw. Under the No 
Action alternative, commercial fishermen currently have a 488 mt dw 
quota, which could potentially be filled entirely by shortfin mako 
landings. This could result in maximum annual revenues equal to 
$2,356,106. Thus, there is the potential loss of the option to fish up 
to the maximum level under this alternative. This difference is 
$2,006,067 in annual gross revenues from shortfin mako sharks. Spread 
amongst the 90 vessels that, on average, have landed shortfin mako 
sharks from 2004 to 2007, that difference would be $22,289 annually per 
vessel. However, given shortfin mako sharks are incidentally caught in 
the PLL fishery, it is unlikely that the entire pelagic shark quota 
would be entirely filled with shortfin mako landings. NMFS did not 
select this alternative at this time because the United States 
contributes a small portion of shortfin mako mortality due the lack of 
a directed fishery compared to shortfin mako mortality resulting from 
the fishing of foreign vessels outside of the U.S. EEZ. In addition, 
this alternative does not minimize the potential economic impacts on 
small entities.
    Alternative C3 would remove shortfin mako sharks from the pelagic 
shark species complex and add them to the prohibited species list. This 
alternative is not expected to have negative economic impacts for 
commercial fishermen because it is not a species that is targeted by 
commercial fishermen. Shortfin mako sharks are predominately caught 
incidentally in the PLL fishery and, on average, the commercial 
landings for shortfin mako sharks, from 2004 to 2007 were 72.5 mt dw 
with an estimated gross ex-vessel value of $350,039. However, since 
shortfin makos would be placed on the prohibited species list under 
alternative C3, there could be an estimated reduction in average annual 
gross revenues of $350,039 to the commercial fishermen. Based on the 
average number of vessels that have landed shortfin mako from 2004 to 
2007, the revenue reductions would be approximately $3,889 per vessel 
annually. In addition, this alternative could lead to increased 
operation time if commercial fishermen have to release and discard all 
shortfin makos that are caught on the PLL gear. In addition, if the 
commercial PLL fleet expands in the future, placing shortfin mako 
sharks on the prohibited species list could result in a loss of future 
revenues for the commercial PLL fishery. Thus, NMFS did not select this 
alternative at this time.
    Alternative C4a would establish a minimum size limit for shortfin 
makos that is based on the size at which 50 percent of female shortfin 
mako sharks reach sexual maturity or 32 inches IDL. The summed dressed 
weight of all shortfin mako sharks kept under the 32 inches IDL size 
limit made up 1.4 percent of total dressed weight landings of shortfin 
mako sharks based on POP data. NMFS estimated this would reduce 
shortfin mako harvests by 2,061.1 lb dw. The economic impacts of this 
restriction would be an average annual gross revenue loss of $4,513 for 
this fishery. Spread amongst the 90 vessels that have landed shortfin 
mako sharks from 2004 to 2007, the per vessel losses would be 
approximately $50 annually.
    Alternative C4b would establish a minimum size limit for shortfin 
makos that is based on the size at which 50 percent of male shortfin 
mako sharks reach sexual maturity or 22 inches IDL. The summed dressed 
weight of all kept shortfin mako sharks under the 22 inches IDL size 
limit made up 0.02 percent of dressed weight landings of shortfin mako 
based on POP data. NMFS estimated this would reduce shortfin mako 
harvests by 34.3 lb dw. The economic impacts of this restriction would 
be an average annual gross revenues loss of $75 for this fishery.
    Alternatives C4a and C4b would have minimal economic impacts 
because only a small percentage of commercial landings would be 
affected by the size restrictions. Of the two alternatives, the 
negative economic impact of C4a would be greater, as commercial 
landings by weight are 2,026.8 lb dw greater than in alternative C4b. 
Despite these minimum economic impacts, since the size limits would not 
reduce fishing mortality of shortfin mako sharks in the commercial 
sector, NMFS did not select these alternatives at this time.
    Under alternative C5, the final action, NMFS would take action at 
the international level through international fishery management 
organizations to establish management measures to end overfishing of 
shortfin mako sharks. In the short term, this alternative would not 
result in any negative economic impacts on commercial fishermen as it 
would not restrict commercial harvest of shortfin mako sharks, nor 
alter the pelagic shark quota. Therefore, the near term economic 
impacts of alternative C5 would be the same as described in the No 
Action alternative C1. However, this alternative could have negative 
economic impacts in the long term if directed management measures were 
adopted at an appropriate international forum that would require the 
reduction of landings domestically for shortfin mako sharks. 
Recommended reductions in landings, if implemented by multiple nations, 
would ultimately end overfishing of shortfin mako. Therefore, NMFS 
selects alternative C5 at this time. Note that with respect to all 
shortfin mako commercial measures, alternatives C5 and C6 would have 
the lowest short-term economic impacts on fishermen and participants in 
the fishery.
    Alternative C6, the preferred alternative, would promote the 
release of shortfin mako sharks brought to fishing vessels alive. This 
alternative would likely not result in any negative economic impacts on 
commercial fishermen as it does not restrict commercial harvest of 
shortfin mako sharks that are alive at haulback, and quotas and 
retention limits would remain as described in the No Action alternative 
C1. However, as this

[[Page 30522]]

alternative could result in the reduction of fishing mortality of 
shortfin mako sharks by encouraging fishermen to release shortfin mako 
sharks brought to the fishing vessel alive, NMFS selects this 
alternative at this time.
    Under alternative D1, the final action, NMFS would maintain the 
current recreational management measures, including the current 
retention limits and size limits for SCS. Therefore, the economic 
impacts of alternative D1 would be the same as the status quo, and no 
negative economic impacts would be anticipated under alternative D1. 
Alternative D1 is the least costs alternative and NMFS selects this 
alternative.
    Alternative D2 would modify the minimum recreational size for 
blacknose sharks based on the biology of blacknose sharks. This would 
lower the current size limit from 54 inches FL to 36 inches FL, the 
size at which 50 percent of the female blacknose sharks reach sexual 
maturity. This could increase the landings of recreationally harvested 
blacknose sharks and, therefore, have positive economic impacts for 
small business entities supporting recreational fishermen. The 
potential for increased landings associated with the lower size limit 
could marginally increase demand for charter/headboat services and for 
products and service provided by shoreside businesses that support 
recreational fishermen. Since this alternative could result in the 
increase of blacknose shark recreational landings, and NMFS needs to 
reduce the number of blacknose shark landings in order to rebuild the 
stock, NMFS did not select this alternative at this time.
    Alternative D3 would increase the retention limit for Atlantic 
sharpnose sharks based on their current catches and stock status. Any 
increase in the retention limit for Atlantic sharpnose sharks would 
provide positive economic impacts for recreational fishermen, 
especially if this resulted in more charter trips for charter/
headboats. However, since the latest stock assessment suggests that 
increased fishing efforts could result in an overfished status and/or 
cause overfishing to occur in the future (NMFS, 2007), NMFS did not 
select this alternative at this time.
    Under alternative D4, NMFS would prohibit the retention of 
blacknose sharks in the recreational fishery. While recreational 
fishermen could still catch blacknose sharks, they would not be 
permitted to retain blacknose sharks and would have to release them. 
This could have negative economic impacts on recreational fishermen, 
including tournaments and charter/headboats if the prohibition of 
blacknose sharks resulted in fewer charters and reduced tournament 
participation. However, since blacknose sharks are not one of the 
primary species targeted by recreational anglers, in tournaments, or on 
charters, NMFS does not anticipate large negative economic impacts from 
this alternative on tournaments or charter/headboat businesses.
    Maintaining the current recreational measures for shortfin mako 
sharks under alternative E1 would likely not result in any adverse 
economic impacts on small entities since the No Action alternative 
would not modify or alter recreational fishing practices for shortfin 
mako sharks or other shark species. However, this alternative would not 
meet the objective of this rule in reducing overfishing of shortfin 
mako sharks, Thus, NMFS did not select this alternative at this time.
    Alternative E2a would set a minimum size limit for shortfin mako 
sharks of 108 inches FL in the recreational fishery. This would have 
the most severe economic impacts of all the alternatives considered, as 
almost all of the reported shortfin mako sharks landed (99.5 percent) 
were smaller than the proposed 108 inch FL size limit and would have to 
be released. This alternative would basically create a catch-and-
release fishery for shortfin mako sharks. The impacts of alternative 
E2b would be less severe than alternative E2a, as it would set a 
minimum size limit for shortfin mako sharks of 73 inches FL in the 
recreational fishery. This would result in a 60.3 percent overall 
reduction in recreational shortfin mako shark landings. Under this 
alternative, economic impacts would be greater on the non-tournament 
recreational mako shark fishery, as 81 percent of those landings would 
fall below the 73 inch FL size limit. The percentage of recreational 
landings during tournaments that would be released under alternative 
E2b would be less than the non-tournament recreational landings (51.7 
percent to 81 percent, respectively). According to LPS data, 41 percent 
of shortfin mako sharks caught are kept; therefore, size limits in 
alternatives E2 may have a substantial economic impact on the 
recreational fishery. Thus, NMFS did not select alternatives E2a or E2b 
at this time.
    Under alternative E3, the final action, NMFS would take action at 
the international level to end overfishing of shortfin mako sharks 
through participation in international fisheries organizations such as 
ICCAT. This alternative would not result in any changes in the current 
recreational regulations regarding bag or size limits for shortfin mako 
sharks. Therefore, this alternative would likely not result in any 
negative economic impacts for recreational fishermen and the small 
businesses that support those recreational fishing activities in the 
short term as compared to the No Action alternative, E1. In addition, 
this alternative could help end overfishing of shortfin mako sharks in 
the long term through an international plan to conserve shortfin mako 
sharks. Therefore, NMFS selects this alternative at this time.
    Under alternative E4, the final action, NMFS would promote the live 
release of shortfin mako sharks in the recreational shark fishery, but 
this alternative would not result in any changes in the current 
recreational regulations regarding bag or size limits for shortfin mako 
sharks. Therefore, this alternative would likely not result in any 
economic impacts compared to the No Action alternative, alternative E1. 
However, it would encourage the live release of shortfin mako sharks, 
and could help reduce fishing pressure on this species. Therefore, NMFS 
selects this alternative at this time.
    Under alternative E5, NMFS would remove shortfin mako sharks from 
the authorized species list and add them to the prohibited species 
list. Placing shortfin mako sharks on the prohibited species list would 
make the recreational fishery for shortfin mako sharks a catch-and-
release fishery. Although a small number of shortfin mako sharks were 
landed in the recreational fishery from 2004 to 2007, it is also an 
important fishing tournament species. Fishing tournaments are an 
important component of HMS recreational fisheries. In 2008, there were 
42 shark tournaments throughout the U.S. Atlantic Coast, including the 
Gulf of Mexico and the Caribbean Sea. Therefore, adding this species to 
the prohibited species list could lead to negative economic impacts for 
tournament operators since they may have to modify their tournament 
rules and could face reduced demand for participation, and thus reduce 
revenues from entry fees. A recreational catch-and-release fishery for 
shortfin mako may also reduce demand for CHB trips that target shortfin 
mako sharks. In addition, since the United States only contributes to a 
small portion of the overall mortality for shortfin mako sharks, 
prohibiting them in the recreational fishery would not end overfishing 
for this species. Given these reasons and the fact that the economic 
impacts of this alternative are estimated

[[Page 30523]]

to be higher than that of the preferred alternatives, NMFS did not 
select this alternative at this time.
    NMFS also considered alternatives regarding the potential inclusion 
of smooth dogfish under NMFS management. Smooth dogfish are currently 
not managed by NMFS, and stock data are sparse. Therefore, there is 
limited stock status information, participant information, and effort 
data for this fishery.
    Under alternative F1, the no action alternative, NMFS estimates 
that there would not be any economic impacts to small entities beyond 
the status quo. This alternative would have the lowest costs 
alternative to small entities. However, applying the No Action 
alternative would not meet the objectives of this rule since it would 
preclude gathering fishery participant information. Therefore, NMFS did 
not select this alternative at this time.
    Implementing Federal management of smooth dogfish through 
alternative F2, the final action, would focus on characterizing the 
fishery and stock status, but would not actively change catch levels or 
rates. Alternative F2 would require Federal commercial and recreational 
fishing permits as well as require fishermen to land smooth dogfish 
with all of their fins naturally attached. These changes could result 
in short-term, direct significant adverse socioeconomic impacts on 
fishermen who are used to processing smooth dogfish at sea. Business 
entities that fish commercially for smooth dogfish would have to 
purchase an open access smooth dogfish commercial fishing permit, and 
dealers would have to report smooth dogfish landings. The costs to 
small entities would include the costs of obtaining the permit 
(approximately $20 based on current permit fees), the time involved in 
completing the permit form, and the administrative costs associated 
with reporting landings. In addition, recreational anglers that would 
want to retain smooth dogfish in Federal waters would need to purchase 
an HMS Angling category permit. While this alternative results in more 
costs to small entities than alternative F1, it helps meet the 
objectives of this rule of gathering more information on participation 
in this fishery, and therefore is preferred at this time. NMFS would 
delay the implementation of these requirements until the start of the 
2012 fishing season to allow time for fishermen to adjust to the 
changes and to allow time for the development of a new commercial 
smooth dogfish permit. Thus, in the short-term, alternative F2 would 
result in significant, but mitigated to be less than significant 
socioeconomic impacts due to the delay in implementation of these 
requirements. Once fishermen adjust to the new measures, NMFS 
anticipates that there would be no direct socioeconomic impacts to 
fishermen in the long-term.
    Sub-alternatives F2 a1, which would establish a smooth dogfish 
quota that is equal to the average annual landings from 1998-2007, and 
F2 a2, which would establish a smooth dogfish quota equal to the 
maximum annual landing between 1998-2007, could potentially have 
negative economic impacts on fishermen if the associated quotas reflect 
a significantly underreported fishery. If the actual landings are 
higher than these two quotas, fishermen would be prevented from fishing 
at status quo levels, and thus experience negative economic impacts. 
Thus, NMFS did not select these two sub-alternatives at this time.
    Alternative F2a3, which would establish a smooth dogfish quota 
above the maximum annual landings between 1998-2007, would have neutral 
to negative economic impacts. The quota of maximum historical annual 
landings plus one standard deviation between the years 1998 and 2007 
could allow a buffer for potential unreported landings during that 
time. However, based on public comment, as detailed above, NMFS does 
not believe that this alternative would adequately account for 
underreporting.
    Alternative F2a4, the final action, would establish a smooth 
dogfish quota above the maximum annual landings between 1998-2007 and 
would have neutral economic impacts. The quota of maximum historical 
annual landings plus two standard deviations between the years 1998 and 
2007 would allow a buffer for potential unreported landings during that 
time. This would allow the fishery to continue at the current rate and 
level into the future without having to be shut down prematurely. Thus, 
alternative F2a4 is NMFS' selected alternative.
    There are no negative economic impacts anticipated with alternative 
F2 b1. There is no charge associated with fishermen and researchers 
obtaining an EFP, SRP, display permit, or LOA for research or the 
collection for public display. In addition, NMFS would establish a 
smooth dogfish set aside that would accommodate current and future 
research activities. Thus, NMFS does not anticipate any negative 
economic impacts associated with alternative F2 b1, and NMFS selects 
sub-alternative F2 b1 at this time.
    As with sub-alternative F2 b1, there are no negative economic 
impacts anticipated with sub-alternative F2 b2. There is no charge 
associated with fishermen and researchers obtaining an EFP, SRP, 
display permit, or LOA for research or for the collection for public 
display. In addition, NMFS would establish a smooth dogfish set-aside 
that would accommodate current and future research activities. Thus, 
NMFS does not anticipate any negative economic impacts associated with 
sub-alternative F2 b1.
    Alternative F3, which would implement management measures for 
smooth dogfish that complement the ASMFC plan, would likely have 
neutral to slightly positive economic impacts. Most of the ASMFC 
regulations would not change the smooth dogfish fishery as it currently 
operates, fishermen would be required to leave the dorsal fin on the 
smooth dogfish through landing from July through February, which could 
change how the fishery operates, and therefore, have direct minor, 
adverse socioeconomic impacts in the short-term. The extent of these 
impacts will depend on how many smooth dogfish are landed between July 
and February of each year. Because this requirement began in State 
waters in January 2010, it could mitigate some of the economic impacts 
associated with alternative F2 with regard to the requirement of having 
all fins naturally attached under the Federal plan. Thus, by the start 
of the fishing season in 2012, fishermen who have been fishing in State 
waters should have a better idea of how to keep all fins naturally 
attached.
    In the short-term, there are no indirect socioeconomic impacts 
expected for dealers and fish processors compared to the status quo as 
the fishery would continue to operate as it has been with the exception 
of the requirement to leave the dorsal fin on from July through 
February. However, if the requirement to have the dorsal fin attached 
during certain times of the year affects how dealers and processors 
process smooth dogfish, then there could be indirect, minor adverse 
economic impacts on smooth dogfish dealers until they learn how to 
process these sharks during July through February. However, since NMFS 
considers the requirements for gillnet checks and maintaining shark 
fins naturally attached through offloading necessary conservation tools 
for protected resources and to prevent shark finning, NMFS did not 
select this alternative at this time.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group

[[Page 30524]]

of related rules for which an agency is required to prepare a FRFA, the 
agency shall publish one or more guides to assist small entities in 
complying with the rule, and shall designate such publications as 
``small entity compliance guides.'' The agency shall explain the 
actions a small entity is required to take to comply with a rule or 
group of rules. Copies of this final rule and the compliance guide are 
available upon request from NMFS (see ADDRESSES). Copies of the 
compliance guide will be sent to all Federal shark limited access 
permit holders.

List of Subjects

50 CFR Part 600

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

50 CFR Part 635

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

    Dated: May 18, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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.  600.1204, paragraphs (g) through (l) are revised to read as 
follows:


Sec.  600.1204  Shark finning; possession at sea and landing of shark 
fins.

* * * * *
    (g) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark permit and who lands shark in an 
Atlantic coastal port must have all fins weighed in conjunction with 
the weighing of the carcasses at the vessel's first point of landing. 
Such weights must be recorded on the ``weighout slips'' specified in 
Sec.  635.5(a)(2) of this chapter.
    (h) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark permit and who lands shark in or from 
the U.S. EEZ in an Atlantic coastal port must comply with regulations 
found at Sec.  635.30(c) of this chapter.
    (i) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark permit shall engage in shark finning.
    (j) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark permit shall possess on board shark fins 
without the fins being naturally attached to the corresponding 
carcass(es), although sharks may be dressed at sea.
    (k) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark permit shall land shark fins without the fins 
being naturally attached to the corresponding carcass(es).
    (l) A dealer may not purchase shark fins, from an owner or operator 
of a fishing vessel issued a Federal Atlantic commercial shark permit 
who lands shark in an Atlantic coastal port, unless such fins were 
naturally attached to the corresponding carcass at the time of landing 
and their combined wet weight is less than 5 percent of the dressed 
weight of the corresponding carcass(es).

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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.  635.1, paragraph (a) is revised to read as follows:


Sec.  635.1  Purpose and scope.

    (a) The regulations in this part govern the conservation and 
management of Atlantic tunas, Atlantic billfish, Atlantic sharks, and 
Atlantic swordfish under the authority of the Magnuson-Stevens Act and 
ATCA. They implement the 2006 Consolidated Highly Migratory Species 
Fishery Management Plan and its amendments. The Atlantic tunas 
regulations govern conservation and management of Atlantic tunas in the 
management unit. The Atlantic billfish regulations govern conservation 
and management of Atlantic billfish in the management unit. The 
Atlantic swordfish regulations govern conservation and management of 
North and South Atlantic swordfish in the management unit. North 
Atlantic swordfish are managed under the authority of both ATCA and the 
Magnuson-Stevens Act. South Atlantic swordfish are managed under the 
sole authority of ATCA. The shark regulations govern conservation and 
management of sharks in the management unit, under the authority of the 
Magnuson-Stevens Act.
* * * * *

0
5. In Sec.  635.2, the definitions of ``Federal Atlantic commercial 
shark permit,'' ``Non-blacknose SCS,'' and ``Smoothhound sharks'' are 
added in alphabetical order to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Federal Atlantic Commercial Shark Permit means any of the 
commercial shark permits issued pursuant to Sec.  635.4.
* * * * *
    Non-blacknose SCS means one of the species, or part thereof, listed 
in section B of Table 1 in Appendix A to this part other than the 
blacknose shark (Carcharhinus acronotus).
* * * * *
    Smoothhound shark means one of the species, or part thereof, listed 
in section E of Table 1 in Appendix A to this part.
* * * * *

0
6. In Sec.  635.4, paragraphs (e) and (g)(2) are revised to read as 
follows:


Sec.  635.4  Permits and fees.

* * * * *
    (e) Shark vessel permits. (1) The owner of each vessel used to fish 
for or take Atlantic sharks or on which Atlantic sharks are retained, 
possessed with an intention to sell, or sold must obtain, in addition 
to any other required permits, at least one of the Federal Atlantic 
commercial shark permits described below. A Federal Atlantic commercial 
shark permit is not required if the vessel is recreationally fishing 
and retains no more sharks than the recreational retention limit 
specified in Sec.  635.22(c), is operating pursuant to the conditions 
of a shark display or EFP issued pursuant to Sec.  635.32, or fishes 
exclusively within State waters. It is a rebuttable presumption that 
the owner or operator of a vessel without a permit issued pursuant to 
this part on which sharks are possessed in excess of the recreational 
retention limits intends to sell the sharks.
    (2) The owner of vessels that fish for, take, retain, or possess 
the Atlantic oceanic sharks listed in sections A, B, or C of Table 1 of 
Appendix A with an intention to sell must obtain either a Federal 
Atlantic commercial shark directed or shark incidental limited access 
permit. The only valid Federal commercial shark directed and shark 
incidental limited access permits are those that have been issued under 
the limited access program consistent with the provisions under 
paragraphs (l) and (m) of this section.

[[Page 30525]]

    (3) A vessel owner issued or required to be issued a Federal 
Atlantic commercial shark directed or shark incidental limited access 
permit may harvest, consistent with the other regulations in this part, 
any shark species listed in sections A, B, or C of Table 1 of Appendix 
A.
    (4) Vessel owners of vessels that fish for, take, retain, or 
possess the Atlantic oceanic sharks listed in section E of Table 1 of 
Appendix A with an intention to sell must obtain a Federal commercial 
smoothhound permit. A smoothhound permit may be issued to a vessel that 
also holds either a directed or incidental shark limited access permit.
* * * * *
    (g) * * *
    (2) Shark. A first receiver, as defined in Sec.  635.2, of any 
Atlantic shark listed in Table 1 of Appendix A of this part must 
possess a valid dealer permit.
* * * * *

0
7. In Sec.  635.5:
0
a. Paragraph (a)(4) is removed.
0
b. Paragraph (a)(5) is redesignated as paragraph (a)(4).
0
c. Paragraph (b)(1)(i) is revised.
    The revision reads as follows:


Sec.  635.5  Recordkeeping and reporting.

* * * * *
    (b) * * *
    (1) * * *
    (i) Dealers that have been issued or should have been issued an 
Atlantic tunas, swordfish, and/or sharks dealer permit under Sec.  
635.4 must submit to NMFS all reports required under this section. All 
reports must be species-specific and must include information about all 
HMS landed regardless of where harvested or whether the vessel is 
Federally permitted under Sec.  635.4. For sharks, each report must 
specify both the total fin weight and the total dressed weight of the 
carcass(es) separately from each other. In cases where different 
dealers handle the fins and the shark meat, either the report required 
in this section or the weighout slip required in paragraph (a)(2) of 
this section must indicate which part of the sharks being landed (e.g., 
fins or meat) was handled by the dealer submitting the report. As 
stated in Sec.  635.4(a)(6), failure to comply with these recordkeeping 
and reporting requirements may result in the existing dealer permit 
being revoked, suspended, or modified, and in the denial of any permit 
applications.
* * * * *

0
8. In Sec.  635.20, paragraph (e) is revised to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (e) Sharks. The following size limits change depending on the 
species being caught and the retention limit under which they are being 
caught as specified under Sec.  635.22(c).
    (1) All sharks landed under the recreational retention limits 
specified at Sec.  635.22(c) must have the head, tail, and fins 
naturally attached.
    (2) All sharks landed under the recreational retention limits 
specified at Sec.  635.22(c)(2) must be at least 54 inches (137 cm) FL.
    (3) There is no size limit for Atlantic sharpnose or bonnethead 
sharks taken under the recreational retention limits specified at Sec.  
635.22(c)(3).
    (4) There is no size limit for smoothhound sharks taken under the 
recreational retention limits specified at Sec.  635.22(c)(6).
* * * * *

0
9. In Sec.  635.21, paragraphs (d)(1)(iii)(B) and (e)(3) are revised to 
read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (d) * * *
    (1) * * *
    (iii) * * *
    (B) Northern South Carolina. Bounded on the north by 32[deg]53.5' 
N. lat.; on the south by 32[deg]48.5' N. lat.; on the east by 
78[deg]04.75' W. long.; and on the west by 78[deg]16.75' W. long.
* * * * *
    (e) * * *
    (3) Sharks. (i) No person may possess a shark in the EEZ taken from 
its management unit without a permit issued under Sec.  635.4. No 
person issued a Federal Atlantic commercial shark permit under Sec.  
635.4 may possess a shark taken by any gear other than rod and reel, 
handline, bandit gear, longline, or gillnet. No person issued an HMS 
Angling permit or an HMS Charter/headboat permit under Sec.  635.4 may 
possess a shark if the shark was taken from its management unit by any 
gear other than rod and reel or handline, except that persons on a 
vessel issued both an HMS Charter/Headboat permit and a Federal 
Atlantic commercial shark permit may possess sharks taken with rod and 
reel, handline, bandit gear, longline, or gillnet if the vessel is not 
engaged in a for-hire fishing trip.
    (ii) No person may fish for sharks with a gillnet with a total 
length of 2.5 km or more. No person may have on board a vessel a 
gillnet with a total length of 2.5 km or more.
    (iii) Persons fishing with gillnet gear must comply with the 
provisions implementing the Atlantic Large Whale Take Reduction Plan, 
the Bottlenose Dolphin Take Reduction Plan, the Harbor Porpoise Take 
Reduction Plan, and any other relevant Take Reduction Plan set forth in 
Sec. Sec.  229.32 through 229.35 of this title. If a listed whale is 
taken, the vessel operator must cease fishing operations immediately 
and contact NOAA Fisheries as required under Sec.  229 of this title.
    (iv) While fishing with a gillnet for or in possession of any of 
the large coastal, small coastal, and pelagic sharks listed in section 
A, B, and/or C of Table 1 of Appendix A of this part, the gillnet must 
remain attached to at least one vessel at one end, except during net 
checks.
    (v) Vessel operators fishing with gillnet for or in possession of 
any of the large coastal, small coastal, and pelagic sharks listed in 
sections A, B, and/or C of Table 1 of Appendix A of this part are 
required to conduct net checks every 0.5 to 2 hours to look for and 
remove any sea turtles, marine mammals, or smalltooth sawfish. 
Smalltooth sawfish should not be removed from the water while being 
removed from the net.
* * * * *

0
10. In Sec.  635.22, paragraphs (a) and (c) are revised to read as 
follows:


Sec.  635.22  Recreational retention limits.

    (a) General. Atlantic HMS caught, possessed, retained, or landed 
under these recreational limits may not be sold or transferred to any 
person for a commercial purpose. Recreational retention limits apply to 
a longbill spearfish taken or possessed shoreward of the outer boundary 
of the Atlantic EEZ, to a shark taken from or possessed in the Atlantic 
Ocean including the Gulf of Mexico and Caribbean Sea, to a North 
Atlantic swordfish taken from or possessed in the Atlantic Ocean, and 
to bluefin and yellowfin tuna taken from or possessed in the Atlantic 
Ocean. The operator of a vessel for which a retention limit applies is 
responsible for the vessel retention limit and for the cumulative 
retention limit based on the number of persons aboard. Federal 
recreational retention limits may not be combined with any recreational 
retention limit applicable in State waters.
* * * * *
    (c) Sharks. (1) The recreational retention limit for sharks applies 
to any person who fishes in any manner, except to persons aboard a 
vessel that has been issued a Federal Atlantic commercial shark vessel 
permit under Sec.  635.4. The retention limit can change depending on 
the species being caught

[[Page 30526]]

and the size limit under which they are being caught as specified under 
Sec.  635.20(e). If a commercial Atlantic shark quota is closed under 
Sec.  635.28, the recreational retention limit for sharks and no sale 
provision in paragraph (a) of this section may be applied to persons 
aboard a vessel issued a Federal Atlantic commercial shark vessel 
permit under 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.
    (2) Only one shark from the following list may be retained per 
vessel per trip, subject to the size limits described in Sec.  
635.20(e)(2): any of the non-ridgeback sharks listed under heading A.2 
of Table 1 in Appendix A of this part, tiger (Galeocerdo cuvier), blue 
(Prionace glauca), common thresher (Alopias vulpinus), oceanic whitetip 
(Carcharhinus longimanus), porbeagle (Lamna nasus), shortfin mako 
(Isurus oxyricnchus), Atlantic sharpnose (Rhizoprionodon terraenovae), 
finetooth (C. isodon), blacknose (C. Acronotus), and bonnethead 
(Sphyrna tiburo).
    (3) In addition to the sharks listed under paragraph (c)(2) of this 
section, one Atlantic sharpnose shark and one bonnethead shark may be 
retained per person per trip, subject to the size limits described in 
Sec.  635.20(e)(3).
    (4) No prohibited sharks, including parts or pieces of prohibited 
sharks, which are listed in section D of Table 1 of Appendix A to this 
part, may be retained regardless of where harvested.
    (5) Sharks listed in Table 1 of Appendix A that are not listed in 
this section, must be released by persons aboard a vessel that has not 
been issued a Federal Atlantic commercial shark vessel permit under 
Sec.  635.4.
    (6) The smoothhound sharks listed in Section E of Table 1 of 
Appendix A to this part may be retained, and are subject only to the 
size limits described in Sec.  635.20(e)(4).
* * * * *

0
11. In Sec.  635.24, paragraphs (a)(4), (a)(5), and (a)(6) are revised 
and paragraph (a)(7) is added to read as follows:


Sec.  635.24  Commercial retention limits for sharks and swordfish.

* * * * *
    (a) * * *
    (4)(i) A person who owns or operates a vessel that has been issued 
a directed shark LAP may retain, possess, or land pelagic sharks if the 
pelagic shark fishery is open per Sec. Sec.  635.27 and 635.28.
    (ii) A person who owns or operates a vessel that has been issued a 
directed shark LAP may retain, possess, or land blacknose and non-
blacknose SCS if the blacknose and non-blacknose SCS fisheries are open 
per Sec. Sec.  635.27 and 635.28.
    (iii) A person who owns or operates a vessel that has been issued 
an incidental shark LAP may retain, possess, or land no more than 16 
SCS and pelagic sharks, combined, per trip, if the respective fishery 
is open per Sec. Sec.  635.27 and 635.28.
    (5) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark permit may not retain, possess, land, 
sell, or purchase prohibited sharks, including any parts or pieces of 
prohibited sharks, which are listed in section D of Table 1 of Appendix 
A to this part under prohibited sharks.
    (6) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark permit, and who decides to retain 
sharks, must retain, subject to the trip limits, all dead, legal-sized, 
non-prohibited sharks that are brought onboard the vessel and cannot 
replace those sharks with sharks of higher quality or size that are 
caught later in the trip. Any fish that are to be released cannot be 
brought onboard the vessel and must be released in the water in a 
manner that maximizes survival.
    (7) Only persons who own or operate a vessel that has been issued a 
Federal commercial smoothhound permit may retain, possess, and land 
smoothhound sharks if the smoothhound fishery is open per Sec. Sec.  
635.27 and 635.28.
* * * * *
0
12a. In Sec.  635.27, effective June 1, 2010, paragraphs (b)(1)(i) 
through (v) are revised to read as follows:


Sec.  635.27  Quotas.

* * * * *
    (b) Sharks. (1) Commercial Quotas. The commercial quotas for sharks 
specified in this section apply to all sharks from the management unit 
harvested by persons fishing commercially, regardless of where 
harvested. Sharks taken and landed commercially from State waters, even 
by commercial fishermen without Federal Atlantic commercial shark 
permits, must be counted against the Federal fishery quota. Commercial 
quotas are specified for each of the complexes or species listed below. 
Any sharks landed as unclassified will be counted against the 
appropriate complex's or species' quota based on the species 
composition calculated from data collected by observers on non-research 
trips and/or dealer data. No prohibited sharks, including parts or 
pieces of prohibited sharks, which are listed under section D of Table 
1 of Appendix A to this part, may be retained except as authorized 
under Sec.  635.32.
    (i) Annual adjustments. NMFS will publish in the Federal Register 
any annual adjustments to the base annual commercial quotas or the 2008 
through 2012 adjusted base quotas. The base annual quota and the 
adjusted base annual quota will not be available, and the fishery will 
not open, until such adjustments are published and effective in the 
Federal Register.
    (A) Overharvests. Except as noted in this paragraph, if the 
available commercial quota for any shark species or complex, as 
described in this section, is exceeded in any fishing year, NMFS will 
deduct an amount equivalent to the overharvest(s) from the following 
fishing year or, depending on the level of overharvest(s), NMFS may 
deduct an amount equivalent to the overharvest(s) spread over a number 
of subsequent fishing years to a maximum of five years. If the annual 
quota for non-sandbar LCS is exceeded in either region (see section 
(b)(1)(iii)(B)) or in the research fishery in any fishing year, NMFS 
will deduct an amount equivalent to the overharvest(s) from the 
following fishing year or, depending on the level of overharvest(s), 
NMFS may deduct an amount equivalent to the overharvest(s) spread over 
a number of subsequent fishing years to a maximum of five years, in the 
specific region or research fishery where the overharvest occurred. If 
the blue shark quota is exceeded, NMFS will reduce the annual 
commercial quota for pelagic sharks by the amount that the blue shark 
quota is exceeded prior to the start of the next fishing year or, 
depending on the level of overharvest(s), deduct an amount equivalent 
to the overharvest(s) spread over a number of subsequent fishing years 
to a maximum of five years.
    (B) Underharvests. Except as noted in this paragraph, if an annual 
quota for any shark species or complex, as described in this section, 
is not exceeded, NMFS may adjust the annual quota depending on the 
status of the stock or quota group. If the annual quota for non-sandbar 
LCS is not exceeded in either region or in the research fishery, NMFS 
may adjust the annual quota in either region (see paragraph 
(b)(1)(iii)(B) of this section) or the research fishery depending on 
the status of the stock or quota group. If the stock (e.g., sandbar 
shark, porbeagle shark, pelagic shark, or blue shark) or specific 
species within a quota group (e.g., non-sandbar LCS or non-blacknose 
SCS) is declared to be overfished, to have overfishing occurring, or to 
have an unknown status, NMFS may not adjust the following fishing 
year's quota for any

[[Page 30527]]

underharvest, and the following fishing year's quota will be equal to 
the base annual quota (or the adjusted base quota for sandbar and non-
sandbar LCS until December 31, 2012). If the stock is not declared to 
be overfished, to have overfishing occurring, or to have an unknown 
status, NMFS may increase the following year's base annual quota (or 
the adjusted base quota for sandbar and non-sandbar LCS until December 
31, 2012) by an equivalent amount of the underharvest up to 50 percent 
above the base annual quota. For the non-sandbar LCS fishery, 
underharvests are not transferable between regions and/or the research 
fishery.
    (ii) Sandbar sharks. The base annual commercial quota for sandbar 
sharks is 116.6 mt dw. However, from July 24, 2008 through December 31, 
2012, to account for overharvests that occurred in 2007, the adjusted 
base quota is 87.9 mt dw. Both the base quota and the adjusted base 
quota may be further adjusted per paragraph (b)(1)(i) of this section. 
This quota is available only to the owners of commercial shark vessels 
that have been issued a valid shark research permit and that have a 
NMFS-approved observer onboard.
    (iii) Non-sandbar LCS. (A) The total base quota for non-sandbar LCS 
is 677.8 mt dw. This base quota is split between the two regions and 
the shark research fishery as follows: Gulf of Mexico = 439.5 mt dw; 
Atlantic = 188.3 mt dw; and Shark Research Fishery = 50 mt dw. However, 
from July 24, 2008 through December 31, 2012, to account for 
overharvests that occurred in 2007, the total adjusted base quota is 
615.8 mt dw. This adjusted base quota is split between the regions and 
the shark research fishery as follows: Gulf of Mexico = 390.5 mt dw; 
Atlantic = 187.8 mt dw; and Shark Research Fishery = 37.5 mt dw. Both 
the base quota and the adjusted base quota may be further adjusted per 
paragraph (b)(1)(i) of this section.
    (B) The commercial quotas for non-sandbar LCS are split between two 
regions: the Gulf of Mexico and the Atlantic. For the purposes of this 
section, the boundary between the Gulf of Mexico region and the 
Atlantic region is defined as a line beginning on the east coast of 
Florida at the mainland at 25[deg]20.4' N. lat, proceeding due east. 
Any water and land to the south and west of that boundary is 
considered, for the purposes of quota monitoring and setting of quotas, 
to be within the Gulf of Mexico region. Any water and land to the north 
and east of that boundary, for the purposes of quota monitoring and 
setting of quotas, is considered to be within the Atlantic region.
    (C) Except for non-sandbar LCS landed by vessels issued a valid 
shark research permit with a NMFS-approved observer onboard, any non-
sandbar LCS reported by dealers located in the Florida Keys areas or in 
the Gulf of Mexico will be counted against the non-sandbar LCS Gulf of 
Mexico regional quota. Except for non-sandbar LCS landed by vessels 
issued a valid shark research permit with a NMFS-approved observer 
onboard, any non-sandbar LCS reported by dealers located in the 
Atlantic region will be counted against the non-sandbar LCS Atlantic 
regional quota. Non-sandbar LCS landed by a vessel issued a valid shark 
research permit with a NMFS-approved observer onboard will be counted 
against the non-sandbar LCS research fishery quota using scientific 
observer reports.
    (iv) Small coastal sharks. The base annual commercial quota for 
non-blacknose small coastal sharks is 221.6 mt dw, unless adjusted 
pursuant to paragraph (b)(1)(i) of this section. The base annual 
commercial quota for blacknose sharks is 19.9 mt dw, unless adjusted 
pursuant to paragraph (b)(1)(i) of this section.
    (v) Pelagic sharks. The base annual commercial quotas for pelagic 
sharks are 273 mt dw for blue sharks, 1.7 mt dw for porbeagle sharks, 
and 488 mt dw for pelagic sharks other than blue sharks or porbeagle 
sharks, unless adjusted pursuant to paragraph (b)(1)(i) of this 
section.

0
12b. In Sec.  635.27, paragraphs (b(1)(vi) and (b)(2) are revised to 
read as follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (vi) Smoothhound sharks. The base annual commercial quota for 
smoothhound sharks is 715.5 mt dw, unless adjusted pursuant to 
paragraph (b)(1)(i) of this section.
    (2) Public display and non-specific research quotas. All sharks 
collected under the authority of a display permit or EFP, subject to 
restrictions at Sec.  635.32, will be counted against the following:
    (i) The base annual quota for persons who collect non-sandbar LCS, 
SCS, pelagic sharks, blue sharks, porbeagle sharks, or prohibited 
species under a display permit or EFP is 57.2 mt ww (41.2 mt dw).
    (ii) The base annual quota for persons who collect sandbar sharks 
under a display permit is 1.4 mt ww (1 mt dw) and under an EFP is 1.4 
mt ww (1 mt dw).
    (iii) No persons may collect dusky sharks under a display permit. 
Collection of dusky sharks for research under EFPs and/or SRPs may be 
considered on a case by case basis and any associated mortality would 
be deducted from the shark research and display quota.
    (iv) The base annual quota for persons who collect smoothhound 
sharks under a display permit or EFP is 6 mt ww (4.3 mt dw).
* * * * *

0
13. In Sec.  635.28, paragraph (b) is revised to read as follows:


Sec.  635.28  Closures.

* * * * *
    (b) Sharks. (1) If quota is available as specified by a publication 
in the Federal Register, the commercial fishery for the shark species 
or complexes specified in Sec.  635.27(b)(1) will remain open.
    (2) When NMFS calculates that the landings for the shark species or 
complexes, as specified in Sec.  635.27(b)(1), has reached or is 
projected to reach 80 percent of the available quota as specified in 
Sec.  635.27(b)(1), NMFS will file for publication with the Office of 
the Federal Register a notice of closure for that shark species, shark 
complex, and/or region that will be effective no fewer than 5 days from 
date of filing. From the effective date and time of the closure until 
NMFS announces, via the publication of a notice in the Federal 
Register, that additional quota is available and the season is 
reopened, the fishery for the shark species or shark complex and, for 
non-sandbar LCS, region is closed, even across fishing years.
    (3) When NMFS calculates that the landings for either blacknose 
sharks or non-blacknose SCS has reached or is projected to reach 80 
percent of the available quota as specified in Sec.  635.27(b)(1), NMFS 
will file for publication with the Office of the Federal Register a 
notice of closure for the entire SCS fishery, both the blacknose and 
non-blacknose fisheries, that will be effective no fewer than 5 days 
from date of filing. From the effective date and time of the closure 
until NMFS announces, via the publication of a notice in the Federal 
Register, that additional quota is available and the season is 
reopened, the fishery for non-blacknose SCS and blacknose sharks is 
closed, even across fishing years.
    (4) When the fishery for a shark species group and/or region is 
closed, a fishing vessel, issued a Federal Atlantic commercial shark 
permit pursuant to Sec.  635.4, may not possess or sell a shark of that 
species group and/or region,

[[Page 30528]]

except under the conditions specified in Sec.  635.22(a) and (c) or if 
the vessel possesses a valid shark research permit under Sec.  635.32 
and a NMFS-approved observer is onboard. A shark dealer, issued a 
permit pursuant to Sec.  635.4, may not purchase or receive a shark of 
that species group and/or region from a vessel issued a Federal 
Atlantic commercial shark permit, except that a permitted shark dealer 
or processor may possess sharks that were harvested, off-loaded, and 
sold, traded, or bartered, prior to the effective date of the closure 
and were held in storage. Under a closure for a shark species group, a 
shark dealer, issued a permit pursuant to 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 Federal Atlantic commercial shark permit, 
HMS Angling permit, or HMS Charter/Headboat permit pursuant to Sec.  
635.4. Additionally, under a closure for a shark species group and/or 
regional closure, a shark dealer, issued a permit pursuant to Sec.  
635.4, may purchase or receive a shark of that species group if the 
sharks were harvested, off-loaded, and sold, traded, or bartered from a 
vessel issued a valid shark research permit (per Sec.  635.32) that had 
a NMFS-approved observer on board during the trip sharks were 
collected.
* * * * *

0
14. In Sec.  635.30, paragraph (c) is revised to read as follows:


Sec.  635.30  Possession at sea and landing.

* * * * *
    (c) Shark. (1) In addition to the regulations issued at part 600, 
subpart N, of this chapter, a person who owns or operates a vessel 
issued a Federal Atlantic commercial shark permit under Sec.  635.4 
must maintain all the shark fins including the tail naturally attached 
to the shark carcass until the shark has been offloaded from the 
vessel. While sharks are on board and when sharks are being offloaded, 
persons issued a Federal Atlantic commercial shark permit under Sec.  
635.4 are subject to the regulations at part 600, subpart N, of this 
chapter.
    (2) A person who owns or operates a vessel that has a valid Federal 
Atlantic commercial shark permit may remove the head and viscera of the 
shark while on board the vessel. At any time when on the vessel, sharks 
must not have the backbone removed and must not be halved, quartered, 
filleted, or otherwise reduced. All fins, including the tail, must 
remain naturally attached to the shark through offloading. While on the 
vessel, fins may be sliced so that the fin can be folded along the 
carcass for storage purposes as long as the fin remains naturally 
attached to the carcass via at least a small portion of uncut skin. The 
fins and tail may only be removed from the carcass once the shark has 
been landed and offloaded.
    (3) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark permit and who lands sharks in an 
Atlantic coastal port, including ports in the Gulf of Mexico and 
Caribbean Sea, must have all fins and carcasses weighed and recorded on 
the weighout slips specified in Sec.  635.5(a)(2) and in accordance 
with part 600, subpart N, of this chapter. Persons may not possess any 
shark fins not naturally attached to a shark carcass on board a fishing 
vessel at any time. Once landed and offloaded, sharks that have been 
halved, quartered, filleted, cut up, or reduced in any manner may not 
be brought back on board a vessel that has been or should have been 
issued a Federal Atlantic commercial shark permit.
    (4) Persons aboard a vessel that does not have a Federal Atlantic 
commercial shark permit must maintain a shark in or from the EEZ intact 
through landing with the head, tail, and all fins naturally attached. 
The shark may be bled and the viscera may be removed.
* * * * *

0
15. In Sec.  635.32, paragraph (e)(3) is revised to read as follows:


Sec.  635.32  Specifically authorized activities.

* * * * *
    (e) * * *
    (3) Charter permit holders must submit logbooks and comply with 
reporting requirements as specified in Sec.  635.5. NMFS will provide 
specific conditions and requirements in the chartering permit, so as to 
ensure consistency, to the extent possible, with laws of foreign 
countries, the 2006 Consolidated HMS FMP and its amendments, as well as 
ICCAT recommendations.
* * * * *

0
16. In Sec.  635.69, paragraphs (a)(2) and (a)(3) are revised to read 
as follows:


Sec.  635.69  Vessel monitoring systems.

    (a) * * *
    (2) Whenever a vessel issued a directed shark LAP, is away from 
port with bottom longline gear on board, is located between 33[deg]00' 
N. lat. and 36[deg]30' N. lat., and the mid-Atlantic shark closed area 
is closed 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 from November 15-April 15.
* * * * *

0
17. In Appendix A to Part 635, Table 1 of Appendix A to Part 635 is 
revised to read as follows:

Appendix A [Amended]

            Table 1 of Appendix A to Part 635--Oceanic Sharks
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
A. Large Coastal Sharks
  1. Ridgeback sharks:
    Sandbar, Carcharhinus plumbeus
    Silky, Carcharhinus falciformis
    Tiger, Galeocerdo cuvier
  2. Non-ridgeback sharks:
    Blacktip, Carcharhinus limbatus
    Bull, Carcharhinus leucas
    Great hammerhead, Sphyrna mokarran
    Lemon, Negaprion brevirostris
    Nurse, Ginglymostoma cirratum
    Scalloped hammerhead, Sphyrna lewini
    Smooth hammerhead, Sphyrna zygaena
    Spinner, Carcharhinus brevipinna
B. Small Coastal Sharks
  Atlantic sharpnose, Rhizoprionodon terraenovae
  Blacknose, Carcharhinus acronotus
  Bonnethead, Sphyrna tiburo
  Finetooth, Carcharhinus isodon
C. Pelagic Sharks
  Blue, Prionace glauca
  Oceanic whitetip, Carcharhinus longimanus
  Porbeagle, Lamna nasus
  Shortfin mako, Isurus oxyrinchus
  Thresher, Alopias vulpinus
D. Prohibited Sharks
  Atlantic angel, Squatina dumerili
  Basking, Cetorhinus maximus
  Bigeye sand tiger, Odontaspis noronhai
  Bigeye sixgill, Hexanchus nakamurai
  Bigeye thresher, Alopias superciliosus
  Bignose, Carcharhinus altimus
  Caribbean reef, Carcharhinus perezii
  Caribbean sharpnose, Rhizoprionodon porosus
  Dusky, Carcharhinus obscurus
  Galapagos, Carcharhinus galapagensis
  Longfin mako, Isurus paucus
  Narrowtooth, Carcharhinus brachyurus
  Night, Carcharhinus signatus
  Sand tiger, Carcharias taurus
  Sevengill, Heptranchias perlo
  Sixgill, Hexanchus griseus
  Smalltail, Carcharhinus porosus
  Whale, Rhincodon typus
  White, Carcharodon carcharias
E. Smoothhound Sharks
  Smooth dogfish, Mustelus canis
  Florida smoothhound, Mustelus norrisi
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[FR Doc. 2010-12407 Filed 5-28-10; 8:45 am]
BILLING CODE 3510-22-P