[Federal Register Volume 76, Number 167 (Monday, August 29, 2011)]
[Rules and Regulations]
[Pages 53652-53658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21732]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110120049-1485-02]
RIN 0648-BA69


Atlantic Highly Migratory Species; Atlantic Shark Management 
Measures

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

ACTION: Final rule.

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SUMMARY: NMFS hereby implements the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) recommendations 10-07 and 10-08, 
which prohibit the retention, transshipping, landing, storing, or 
selling of hammerhead sharks in the family Sphyrnidae (except for 
Sphyrna tiburo) and oceanic whitetip sharks (Carcharhinus longimanus) 
caught in association with ICCAT fisheries. This rule affects the 
commercial HMS pelagic longline (PLL) fishery and recreational 
fisheries for tunas, swordfish, and billfish in the Atlantic Ocean, 
including the Caribbean Sea and Gulf of Mexico. This action implements 
ICCAT recommendations, consistent with the Atlantic Tunas Convention 
Act (ATCA), and furthers domestic management objectives under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

DATES: Effective September 28, 2011.

ADDRESSES: Supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, and Final Regulatory Flexibility 
Analysis (EA/RIR/FRFA), are available from Peter Cooper, Highly 
Migratory Species (HMS) Management Division, Office of Sustainable 
Fisheries (F/SF1), NMFS, 1315 East West Highway, Silver Spring, MD 
20832. These documents and others, such as the Fishery Management Plans 
described below, also may be downloaded from the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Peter Cooper, Michael Clark, or Karyl 
Brewster-Geisz by phone: 301-427-8503 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION: The U.S. Atlantic shark fisheries are 
managed under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 
et seq. The U.S. Atlantic tuna and tuna-like species fisheries are 
managed under the dual authority of the Magnuson-Stevens Act, and ATCA, 
16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce 
(Secretary) to promulgate such regulations as necessary and appropriate 
to carry out ICCAT recommendations. The authority to issue regulations 
under the Magnuson-Stevens Act and ATCA has been delegated from the 
Secretary to the Assistant Administrator for Fisheries (AA), NOAA.
    On October 2, 2006, NMFS published in the Federal Register (71 FR 
58058) final regulations, effective November 1, 2006, that implemented 
the Consolidated Atlantic Highly Migratory Species (HMS) Fishery 
Management Plan (FMP). This FMP consolidated management of all Atlantic 
HMS (i.e., sharks, swordfish, tunas, and billfish) into one 
comprehensive FMP. The implementing regulations for Atlantic HMS are at 
50 CFR part 635.
    ICCAT is responsible for the conservation of tuna and tuna-like

[[Page 53653]]

species in the Atlantic Ocean and adjacent seas. ICCAT recommendations 
are binding on Contracting Parties, unless Parties object pursuant to 
the treaty. All ICCAT recommendations are available on the ICCAT Web 
site at http://www.iccat.int/en/.
    Two shark measures adopted at the 17th Annual Meeting of ICCAT in 
November of 2010 are the subject of this rulemaking. Recommendation 10-
07, ``Conservation of Oceanic Whitetip Sharks Caught in Association 
with Fisheries in the ICCAT Convention Area,'' prohibits the retention, 
transshipping, landing, storing, or selling of oceanic whitetip sharks 
(Carcharhinus longimanus). The recommendation cites the fact that 
oceanic whitetip sharks are one of five species with the highest degree 
of ecological risk based on an ICCAT risk assessment, their high at-
vessel survival rates and ease of identification, and the high 
proportion of juvenile fish that are caught as justification for 
adopting the recommendation.
    Recommendation 10-08 ``Hammerhead Sharks (Family Sphyrnidae) Caught 
in Association with Fisheries Managed by ICCAT,'' prohibits the 
retention, transshipping, landing, storing, or selling of hammerhead 
sharks in the family Sphyrnidae, except for bonnethead sharks (Sphyrna 
tiburo), taken in the Convention area in association with ICCAT 
fisheries. The recommendation cites sustainability concerns for 
scalloped and smooth hammerhead sharks, difficulty in identifying the 
three species (scalloped, smooth, and great) without bringing them 
onboard, and issues with ICCAT Contracting Parties' obligations to 
report Task I and Task II data as reasons for adopting the 
recommendation.
    On April 29, 2011, NMFS published a proposed rule (76 FR 23935) 
that considered changes to the HMS regulations at 50 CFR part 635 to 
carry out the ICCAT recommendations. Specifically, NMFS proposed 
regulatory changes that would affect HMS vessels that catch sharks in 
association with tuna and tuna-like species, including commercial 
vessels that deploy PLL gear and recreational vessels (i.e., vessels 
issued HMS General category permits that are participating in 
registered HMS tournaments, vessels issued HMS Angling permits, and 
vessels issued HMS Charter/Headboat permits) that are fishing for and 
retain swordfish, tuna or billfish. NMFS did not propose to prohibit 
retention in all HMS recreational fisheries because there is a 
recreational fishery targeting sharks that is not associated with ICCAT 
fisheries. NMFS did not propose to prohibit the retention of oceanic 
whitetip and hammerhead sharks from bottom longline, gillnet, or 
commercial handgear because, while these gears target sharks, they are 
not used in association with ICCAT fisheries.
    NMFS prepared a final Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and a Final Regulatory Flexibility Analysis 
(FRFA), which present and analyze anticipated environmental, social, 
and economic impacts of each alternative contained in this final rule. 
The complete list of alternatives and related analyses is provided in 
the final EA/RIR/FRFA and in the proposed rule, and is not repeated 
here. A copy of the final EA/RIR/FRFA prepared for this rulemaking is 
available from NMFS (see ADDRESSES).
    In this final action, NMFS will prohibit the retention of oceanic 
whitetip sharks and scalloped, smooth, and great hammerhead sharks on 
Atlantic HMS commercially-permitted vessels that have PLL gear on 
board, and by recreational fishermen fishing with a General Category 
permit participating in an HMS tournament or those fishing under an HMS 
Angling or Charter/Headboat permit when tuna or tuna-like species are 
also retained. An analysis of the 2005 through 2009 HMS logbook data 
covering the HMS PLL fishery indicates that, on average, a total of 50 
oceanic whitetip sharks and 181 hammerhead sharks were kept per year by 
fishermen using PLL gear. Prohibiting retention is estimated to result 
in an additional 39 oceanic whitetip and 100 hammerhead sharks released 
alive annually, and an annual cost of $9,155 to the PLL fleet. 
Prohibiting retention may also have positive effects on the scalloped 
hammerhead stock, which was determined to be overfished with 
overfishing occurring by NMFS on April 28, 2011 (76 FR 23794). 
Recreational survey data showed that retention of an oceanic whitetip 
or hammerhead shark along with a tuna, billfish, or swordfish is a rare 
event; therefore, recreational ecologic and economic impacts of this 
action are estimated to be minor.

Comments and Responses

    NMFS received more than 22,000 written public comments on the 
proposed rule. Most of these comments came from two separate campaigns. 
There were about 20 distinct written comments on the proposed rule. 
Other oral comments were collected from participants at three public 
hearings (Manteo, NC; Fort Pierce, FL; and Silver Spring, MD). Below, 
NMFS summarizes and responds to all comments made specifically on the 
proposed rule.
    Comment 1: Retention of oceanic whitetip and hammerhead sharks 
should be prohibited in all HMS fisheries (commercial and 
recreational), and these species should be added to the prohibited 
species list.
    Response: The main objective of this rulemaking is to implement 
ICCAT recommendations 10-07 and 10-08. These recommendations prohibit 
the retention of oceanic whitetip and hammerhead sharks caught in 
association with ICCAT fisheries. The United States is obligated to 
implement these recommendations, through regulations, consistent with 
the Atlantic Tunas Convention Act. Expanding the prohibition to all 
non-ICCAT managed HMS fisheries (commercial and recreational) is not 
consistent with the recommendations.
    Comment 2: NMFS should not create regulatory discards of dead 
sharks for one gear type, especially when these sharks could be landed 
by fishermen using other types of gear. Allowing retention of oceanic 
whitetip and hammerhead sharks in other fisheries will prevent the 
ability to enforce this rule on a market level.
    Response: The ICCAT recommendations implemented in this rulemaking 
specifically address retention in fisheries for tuna and tuna-like 
species. Management of these species in the ICCAT convention area is 
the primary goal of ICCAT. Thus, consistent with those recommendations, 
this rule prohibits retention of oceanic whitetip and hammerhead sharks 
in the PLL fishery and on recreational (HMS Angling and Charter 
headboat permit holders) vessels that possess tuna, swordfish, or 
billfish. Participants targeting tuna and tuna-like species are the 
affected universe for the recommendations.
    Regulatory discards may occur by prohibiting landings of these 
sharks in association with ICCAT fisheries, and may result in minor, 
negative economic impacts. However, there may be minor, beneficial 
ecological impacts from fishermen having to release these sharks 
through the increased number of sharks that are released alive as a 
result of the prohibition. Survival rates vary between oceanic whitetip 
and hammerhead sharks, and can be affected by a variety of factors. 
Based on logbook data and observed survival rates, it is estimated that 
an additional 39 oceanic whitetip and 101 hammerhead sharks would be 
released alive per year by prohibiting retention of these species in 
ICCAT fisheries. Relative negative economic impacts of having to 
discard sharks (alive or dead) are anticipated; however, anecdotal 
evidence indicates that PLL

[[Page 53654]]

vessels targeting swordfish or tunas typically do not choose to use ice 
and limited hold space to keep sharks. Furthermore, a higher price can 
often be attained for tunas and swordfish, making them the better use 
of that limited space. Logbook data indicate that under existing 
regulations, between 2005 and 2009, 87 percent of hammerheads and 75 
percent of oceanic whitetips caught on PLL were discarded. However, the 
specific reason for discarding these sharks is unclear. Depending on 
the type of commercial shark permit (incidental or directed), it is 
possible that vessel operators are required to discard hammerhead 
sharks because an incidental permit limits a vessel to 3 large coastal 
sharks per trip and a directed permit allows up to 33 large coastal 
sharks per trip. In the case of oceanic whitetip sharks, an incidental 
permit holder can possess up to 16 small coastal and pelagic sharks per 
trip and a directed permit holder can keep an unlimited amount of 
oceanic whitetips per trip (no retention limit). Given the small number 
of oceanic whitetip and hammerhead sharks retained by the PLL fleet 
annually (50 and 181, respectively), it is also possible these species 
are discarded because the fishermen would prefer to fill their hold 
with more profitable species.
    In terms of enforcing the new regulations, commercial vessels with 
PLL gear onboard would not be authorized to possess oceanic whitetip or 
hammerhead sharks. Vessel operators would be responsible for complying 
with all relevant HMS regulations and, if found to be in violation of 
these regulations, could face enforcement action, including the 
imposition of penalties. Dealers would still be able to purchase 
oceanic whitetip and hammerhead sharks from commercial permit holders 
that are using authorized gears other than PLL. Dealers are currently, 
and would continue to be, responsible for ensuring that they are 
purchasing oceanic whitetip and hammerhead sharks or shark products 
from vessels that are authorized to land them.
    Comment 3: ICCAT should conduct a stock assessment for the shark 
species that are subject to these recommendations.
    Response: The Standing Committee on Research and Statistics (SCRS) 
at ICCAT is responsible for conducting all ICCAT stock assessments and 
biological reviews for species included in the convention area, and is 
authorized to study species other than tunas and tuna-like species as 
under Article IV of the ICCAT Convention. The ICCAT plenary determines 
the schedule for stock assessments conducted by ICCAT. ICCAT has not 
conducted stock assessments of hammerhead and oceanic whitetip sharks.
    NMFS recently made the determination that scalloped hammerhead 
sharks are overfished and experiencing overfishing (76 FR 23794) based 
on a stock assessment published in the North American Journal of 
Fisheries Management (Hayes et al., 2009). Based on this stock status 
determination, NMFS will be initiating an amendment to the 2006 
Consolidated HMS FMP in order to implement regulations to end 
overfishing and rebuild the scalloped hammerhead shark stock as 
mandated under the Magnuson-Stevens Act. Implementation of the ICCAT 
hammerhead recommendation could help to reduce mortality of scalloped 
hammerhead and contribute to the rebuilding of this species.
    There have been no formal NMFS or peer-reviewed stock assessments 
for Atlantic oceanic whitetip sharks that have been determined to be 
appropriate for management action under the Magnuson-Stevens Act. Given 
the declining abundance of oceanic whitetip sharks globally and the 
unknown status of the stock, the implementation of the ICCAT oceanic 
whitetip recommendation could benefit the status of this stock by 
reducing mortality in the Atlantic Ocean.
    Comment 4: The ICCAT recommendation for oceanic whitetip sharks 
states that it applies to ``any fishery,'' therefore NMFS has an 
obligation to prohibit retention of this species in all U.S. Atlantic 
fisheries.
    Response: NMFS has interpreted this recommendation as applying only 
to oceanic whitetip sharks caught in association with ICCAT fisheries. 
Therefore, the ICCAT recommendation to prohibit the retention of 
oceanic whitetip sharks will be applied only to U.S. ICCAT fisheries, 
which are considered to be fisheries that target tuna and tuna-like 
species. Other Contracting Parties to ICCAT have also expressed concern 
about the adopted wording of the recommendation and how a broader 
interpretation could lead to conflicts of competence with respect to 
other regional fisheries management organizations and arrangement in 
the Atlantic Ocean.
    Comment 5: Recreational vessels should not be allowed to keep 
hammerhead sharks.
    Response: Hammerhead sharks are managed domestically by the NMFS 
Atlantic Highly Migratory Species Management Division within the large 
coastal shark (LCS) complex. As such, they can be landed by any 
recreational permit holder using authorized gear subject to bag limits 
and minimum size restrictions. Currently, the LCS bag limits for 
recreational permit holders are one LCS, greater than 54'' fork length, 
per vessel, per trip. In order to remain in compliance with ICCAT shark 
recommendations, NMFS is prohibiting the retention of hammerhead sharks 
in association with tuna and tuna-like species. Therefore, recreational 
vessels that retain tuna, swordfish, or billfish will not be able to 
retain hammerhead sharks on the same trip. Recreational fishermen will 
still be able to retain hammerhead sharks when fishing outside of ICCAT 
managed fisheries.
    NMFS recently made the determination that scalloped hammerhead 
sharks are overfished and experiencing overfishing (76 FR 23794). Based 
on this determination, NMFS will be initiating an amendment to the 2006 
Consolidated HMS FMP in order to implement regulations to end 
overfishing and rebuild the scalloped hammerhead shark stock as 
mandated under the Magnuson-Stevens Act. Additional measures that may 
affect recreational vessels landing hammerhead sharks might be 
considered in that rulemaking.
    Comment 6: I support the status quo because the other alternatives 
require some fishermen to throw back a dead fish that can still be 
retained by others.
    Response: Logbook data indicate that under existing regulations, 
between 2005 and 2009, 87 percent of hammerhead sharks and 75 percent 
of oceanic whitetip sharks caught on PLL gear were discarded. Of the 
hammerhead sharks discarded on an annual basis over that time series, 
an average of 780 were released alive and were 350 discarded dead. For 
oceanic whitetip sharks discarded over the time series, an average of 
133 were released alive and 14 were discarded dead on an annual basis. 
Implementation of this final rule ensures compliance with ICCAT 
recommendations 10-07 and 10-08. NMFS does not have estimates of at-
vessel mortality of oceanic whitetip and hammerhead sharks by 
recreational vessels, but believes that it is low. Because of this, and 
because of the fact that landing an oceanic whitetip or hammerhead 
shark along with a tuna, swordfish, and/or billfish in recreational 
fisheries is a rare-event occurrence, increases in discards due to 
prohibiting the recreational retention of oceanic whitetip and 
hammerhead sharks in ICCAT fisheries are anticipated to be minimal.
    Comment 7: One commenter opposed using ICCAT as a vehicle for

[[Page 53655]]

management of all sharks, especially large coastal sharks, until there 
is firm progress from other countries actively participating in pelagic 
shark conservation.
    Response: ATCA requires NMFS to implement recommendations adopted 
at ICCAT regardless of progress from other countries actively 
participating in pelagic shark conservation. Contracting Parties are 
required to implement all measures adopted by the commission in their 
waters. Issues concerning Contracting Parties' non-compliance with 
ICCAT recommendations are addressed in the compliance committee.
    Comment 8: Does NMFS have any data to prove that all ``kept'' 
sharks were alive when boated and subsequently killed for retention? If 
197 oceanic whitetips are expected to be caught and the observed rate 
of live releases is 77 percent, then the remaining 23 percent 
calculates to 45 sharks (basically, the average number of retained per 
year). It would be less wasteful for NMFS to require the retention of 
dead oceanic whitetip sharks. NMFS states that approximately 55 percent 
of the hammerhead catch is alive when brought to the boat. Of the 
estimated 1,311 sharks caught annually, approximately 590 will be 
released dead. What benefit will that be to the stock?
    Response: NMFS does not have data to prove that all individual kept 
sharks are alive when boated. On observed trips, a fisheries observer 
collects data on individual fish, including whether the fish are dead 
or alive when they are brought on the vessel and their disposition 
(e.g., landed, discarded alive, discarded dead). On trips without an 
observer onboard, the primary source of information on species 
disposition is the logbook completed by the vessel operator. The 
logbook does not indicate whether the fish are alive or dead when they 
are brought on the vessel. According to observer data, approximately 55 
percent and 77 percent of oceanic whitetip and hammerheads, 
respectively, are alive when they reach the vessel. Requiring vessel 
operators to retain oceanic whitetip and hammerhead sharks would not 
comply with Recommendations 10-07 and 10-08, which prohibit retention 
of these species.
    To clarify, the numbers in the comment apply survival rates that 
are based on observed trips to logbook data. Based solely on logbook 
data, which provide the number of sharks landed, discarded dead and 
released alive, the Agency estimates that by prohibiting the retention 
of these species on vessels with PLL gear onboard, 172 oceanic whitetip 
sharks and 961 hammerhead sharks would likely be released alive. 
Twenty-five oceanic whitetip and 350 hammerheads would likely be 
released dead.
    Comment 9: Without a method for dealers to verify what kind of gear 
a vessel is using and if tunas, swordfish, or billfish were 
simultaneously aboard the vessel, they will have difficulty adhering to 
the restriction for purchase. NMFS should delete the restriction on 
purchase until they have a clear way for shark buyers to verify this 
information or until NMFS makes it illegal for any fishermen, no matter 
what gear, to possess and sell these species.
    Response: Federally-permitted HMS dealers are prohibited from 
buying product that was harvested illegally. The issues raised in the 
comment would likely apply to hammerhead sharks as other gears (BLL and 
gillnet) are the primary gears for targeting these fish. Oceanic 
whitetip are caught almost exclusively on PLL gear as bycatch by 
vessels targeting swordfish and tunas. At the point of landing, dealers 
would be responsible for determining whether the vessel was authorized 
to harvest oceanic whitetip which would depend, in part, on the type of 
gear onboard the vessel. If a vessel has a power-operated longline 
hauler, a mainline, floats capable of supporting the mainline, and 
leaders (gangions) with hooks on board, then it has PLL gear as defined 
by the regulations and therefore may not retain, possess or land an 
oceanic whitetip or hammerhead shark. If the vessel is not considered 
to have PLL gear onboard, then it is authorized to possess oceanic 
whitetip and hammerhead sharks. In addition, pelagic longline vessels 
fishing in areas closed to BLL gear may not possess demersal species in 
a quantity that exceeds 5 percent of the total weight of all indicator 
species (demersal and pelagic) on board the vessel (Sec.  
635.21(c)(1)). Prohibiting retention of hammerhead and oceanic whitetip 
sharks in all fisheries would go beyond the scope of the ICCAT 
recommendation; therefore, dealers, who are first receivers of oceanic 
whitetip and/or hammerhead sharks, will have to determine if the vessel 
selling the shark has PLL gear onboard in order to comply with the 
regulations.
    Comment 10: NMFS should go beyond ICCAT and prohibit retention in 
all HMS recreational fisheries. We further recommend that you prohibit 
retention of these species, especially scalloped hammerhead sharks 
(Sphyrna lewini), not only on vessels with pelagic longline gear on 
board, but on those with bottom longline, gillnet, and handgear as 
well. More proactive measures are justified by recent science showing 
severe declines in scalloped hammerhead populations in particular. In a 
recent notice published in the Federal Register, NMFS declared 
scalloped hammerhead sharks overfished with overfishing occurring, 
based in part on estimates that the stock is only 17 percent of virgin 
stock size.
    Response: At this time, NMFS is implementing the Recommendations as 
adopted at the 2010 ICCAT meeting. These Recommendations apply 
specifically to prohibiting retention of oceanic whitetip and 
hammerhead sharks caught in association with ICCAT fisheries. NMFS 
recently made the determination that scalloped hammerhead sharks are 
overfished and experiencing overfishing. Based on this stock status 
determination, NMFS will be initiating an amendment to the 2006 
Consolidated HMS FMP in order to implement regulations within 2 years 
to end overfishing and rebuild the scalloped hammerhead shark stock as 
mandated under the Magnuson-Stevens Act. Implementation of the ICCAT 
hammerhead shark recommendation could help to reduce mortality of 
scalloped hammerhead and contribute to the rebuilding of this species; 
however, additional measures may be required in the forthcoming FMP 
amendment.
    Comment 11: NMFS should go with the status quo alternative. 
Recreational fishermen should be able to keep hammerheads, which would 
allow people who do not live in coastal areas a once-in-a-lifetime 
experience to get the fish mounted.
    Response: NMFS is required to implement ICCAT recommendations 10-07 
and 10-08, which would prohibit retention of oceanic whitetip and 
hammerhead sharks caught in association with ICCAT fisheries. 
Recreational anglers (HMS Angling and Charter Headboat permit holders) 
would still be allowed to fish for and land one oceanic whitetip or 
hammerhead shark greater than 54'' fork length per vessel per trip 
consistent with existing regulations, but provided that the vessel does 
not also possess a swordfish, billfish, or tuna.
    Comment 12: I interpret the stock assessment as saying that 
hammerhead sharks are rebuilding. They have a 58 percent chance of 
rebuilding in 10 years if we do nothing. Recent declines in landings 
have provided an opportunity for populations of scalloped hammerhead 
sharks to rebuild.
    Response: In October 2009, Hayes et al. (2009) published in the 
North American Journal of Fisheries

[[Page 53656]]

Management a stock assessment of the Atlantic population of scalloped 
hammerhead sharks in U.S. waters. Based on this paper, in 2005 the 
population was estimated to be at 45 percent of the biomass that would 
produce the maximum sustainable yield (MSY), and fishing mortality was 
estimated to be 129 percent of fishing mortality associated with MSY. 
The stock is estimated to be depleted by approximately 83 percent of 
virgin stock size (i.e., the current population is only 17 percent of 
the virgin stock size). In addition, it was estimated that a total 
allowable catch (TAC) of 2,853 scalloped hammerhead sharks per year (or 
69 percent of 2005 catch) would allow a 70 percent probability of 
rebuilding within 10 years. NMFS has reviewed this paper and concluded 
that: the assessment is complete; the assessment is an improvement over 
a 2008 aggregated species assessment for hammerhead sharks; and the 
assessment is appropriate for U.S. management decisions (76 FR 23794).

Changes From the Proposed Rule

    In response to comments expressing concerns about enforcement 
challenges presented by the rule as proposed, NMFS added the words 
``possess'' and ``or'' to paragraphs 635.21(c)(1)(ii), 635.22(a)(2) and 
635.71(d)(18) to clarify the text, consistent with the ICCAT 
recommendations and domestic regulations, and improve enforceability 
both dockside and at-sea. In addition, there was a minor, clarifying 
changes to the regulatory text in paragraph 635.21(c)(1)(ii) to clarify 
that any one of the activities listed is prohibited. In 635.24, NMFS 
clarified application of the prohibition to both oceanic whitetip and 
hammerhead sharks through the addition of an introductory provision. 
NMFS also clarified that the gear operation and deployment restrictions 
in 635.21 limit retention in 635.24. The preferred alternatives from 
the proposed rule to prohibit the retention of oceanic whitetip sharks 
and scalloped, smooth, and great hammerhead sharks on Atlantic HMS 
commercially-permitted vessels that have PLL gear on board, and by 
recreational fishermen fishing with a General Category permit 
participating in a HMS tournament or those fishing under an HMS Angling 
or Charter/Headboat permit when tuna or tuna-like species are also 
retained, remained the same in the final rule.

Classification

    The NMFS Assistant Administrator has determined that the final rule 
is consistent with the 2006 Consolidated HMS FMP and its amendments, 
the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, and other 
applicable law.
    NMFS prepared an environmental assessment for this rule that 
analyzes the impact on the environment as a result of this rule. In 
this action, NMFS is prohibiting retention of oceanic whitetip sharks 
and scalloped, smooth, and great hammerhead sharks in the Atlantic PLL, 
HMS Angling and HMS Charter/Headboat fisheries for tuna and tuna-like 
species consistent with ICCAT Recommendations 10-07 and 10-08. A copy 
of the environmental assessment is available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared, as 
required by section 604 of the RFA (RFA). The FRFA describes the 
economic impact this rulemaking would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY section of the preamble. A summary of 
the analysis follows. A copy of this analysis is available from NMFS 
(see ADDRESSES).
    In compliance with section 604(a)(1) of the RFA, the purpose of 
this rulemaking, consistent with the Magnuson-Stevens Act and the 2006 
Consolidated HMS FMP and its amendments, is to implement ICCAT 
recommendations 10-07 and 10-08 pursuant to ATCA and to achieve 
domestic management objectives under the Magnuson-Stevens Act. This 
rulemaking will implement the ICCAT shark recommendations in the 
Atlantic HMS fisheries that target tuna and tuna-like species because 
NMFS considers these fisheries to be the ICCAT-managed fisheries. The 
regulatory changes would affect HMS vessels that catch sharks in 
association with tuna and tuna-like species, including commercial 
vessels that deploy PLL gear, General Category tuna vessels 
participating in registered HMS tournaments, and HMS Angling/Charter 
Headboat vessels fishing for billfish, swordfish, and tunas. This 
action is necessary to implement ICCAT recommendations pursuant to 
ATCA. In compliance with the ATCA, NMFS is required to implement 
domestic regulations consistent with recommendations adopted by ICCAT 
as necessary and appropriate.
    Section 604(a)(2) of the RFA requires agencies to summarize 
significant issues raised by the public in response to the IRFA, the 
agency's assessment of such issues, and a statement of any changes made 
as a result of the comments.
    NMFS received numerous comments on the proposed rule (76 FR 23935, 
April 29, 2011) during the comment period. A summary of these comments 
and NMFS' responses are included in Chapter 13 of the EA/RIR/FRFA and 
are included above. Although NMFS did not receive comment specifically 
on the IRFA, public comments were received in regards to the increase 
in regulatory discards by prohibiting the retention of oceanic whitetip 
and hammerhead sharks in the commercial PLL fishery. This rule would 
lead to an estimated annual increase in oceanic whitetip and hammerhead 
sharks discards of 50 and 181 sharks, respectively, by converting 
average annual landings into regulatory discards. NMFS estimates that 
vessels that landed oceanic whitetip and hammerhead sharks from 2005-
2009 would incur annual economic losses of $109 and $314, respectively 
from having to discard these sharks. Logbook data indicate that under 
existing regulations, between 2005 and 2009, 87 percent of hammerhead 
sharks and 75 percent of oceanic whitetip sharks caught on PLL were 
discarded. NMFS does not know the rationale behind these discards, but 
assumes that vessel operators are choosing to discard these fish either 
because of existing retention limits or economic reasons. Participants 
using PLL gear typically target tuna and swordfish, which are both 
higher valued species than sharks. Retaining sharks on vessels with 
limited hold space may affect product quality of other higher-valued 
species. Also, vessels may be limited by current large coastal and 
pelagic shark retention limits, depending on what type of commercial 
shark permit they hold (directed or incidental), which may also be the 
cause of these discards. Therefore, no changes were made in the rule 
resulting from public comments in response to the IRFA.
    Section 604(a)(3) requires Federal agencies to provide an estimate 
of the number of small entities to which the rule would apply. In 
accordance with the Small Business Administration (SBA) size standards, 
NMFS used the following thresholds to determine if an entity regulated 
under this action would be considered a small entity: average annual 
receipts less than $4.0 million for fish-harvesting, average annual 
receipts less than $6.5 million for charter/party boats, 100 or fewer 
employees for wholesale dealers, or 500 or fewer employees for seafood 
processors. Using these thresholds, NMFS determined that all HMS permit 
holders are small entities. Specifically,

[[Page 53657]]

this action would apply to all participants in the Atlantic HMS 
commercial and recreational fisheries that target tuna and tuna-like 
species. As of October 2010, 248 vessels held a Tuna Longline permit 
and can be reasonably assumed to use PLL gear, 24,479 held an Atlantic 
HMS Angling permit, and 4,174 vessels held an Atlantic HMS Charter/
Headboat permit. From 2005-2009, on average, 12 PLL landed oceanic 
whitetip sharks vessels per year and 25 PLL vessels landed hammerhead 
sharks vessels per year. These permitted vessels consist of commercial, 
recreational, and charter vessels as well as headboats. Vessels holding 
these permits could be affected by this action.
    Under section 604(a)(4) of the RFA, agencies are required to 
describe any new reporting, record-keeping and other compliance 
requirements. The action does not contain any new collection of 
information, reporting, record keeping, or other compliance 
requirements.
    Under section 604(a)(6), agencies are required to describe any 
alternatives to the final rule which accomplish the stated objectives 
and which minimize any significant economic impacts. These impacts are 
discussed below and in the Environmental Assessment for the final 
action. Additionally, the Regulatory Flexibility Act (5 U.S.C. 
603(c)(1)-(4)) lists four general categories of significant 
alternatives that would assist an agency in the development of 
significant alternatives. These categories of alternatives are: (1) 
Establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) use of performance rather than design standards; and (4) 
exemptions from coverage of the rule for small entities.
    In order to meet the objectives of this rule, consistent with the 
Magnuson-Stevens Act, 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 were no 
alternatives discussed that fall under the first, second, 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 preferred alternatives to achieve the desired objective.
    NMFS has prepared this FRFA to analyze the impacts on small 
entities of the alternatives for implementing ICCAT shark 
recommendations for all domestic fishing categories that target tuna 
and tuna-like species. The FRFA assessed the impacts of the various 
alternatives on the vessels that participate in the Atlantic HMS 
commercial and recreational fisheries that target tuna and tuna-like 
species, all of which are considered small entities. Three alternatives 
were considered and analyzed and include (A1) no action; (A2) 
implementing the ICCAT shark recommendations in the commercial PLL 
fishery for tuna and tuna-like species; and (A3) implementing the ICCAT 
shark recommendations in the HMS Angling and Charter/Headboat fisheries 
for tuna and tuna-like species.
    Under the No Action Alternative, A1, there would be no additional 
economic impacts to HMS vessels fishing for tuna and tuna-like species. 
Commercial vessels that fish for tuna and tuna-like species that are 
also currently authorized to land oceanic whitetip and hammerhead 
sharks would be able to continue that practice. Total gross average 
annual revenues from oceanic whitetip and hammerhead shark meat and 
fins from all vessels that fished for tuna or tuna-like species from 
2005 through 2009 was approximately $9,155 per year across all vessels 
(37 vessels) or $247 per vessel per year. Vessels fishing 
recreationally for tuna or tuna-like species would continue to have the 
ability to retain an oceanic whitetip or hammerhead shark along with a 
tuna or tuna-like species on the same recreational trip under the No 
Action Alternative.
    Under Alternative A2, a preferred alternative, ICCAT shark 
recommendations would be applied to PLL vessels fishing commercially 
for tuna and tuna-like species. This alternative would prohibit 
retention of oceanic whitetip and hammerhead sharks by PLL vessels. On 
average, from 2005 through 2009, 12 vessels/year kept oceanic whitetip 
sharks, and less than 2 percent of the total PLL trips kept oceanic 
whitetip sharks. An average of 1,462 lb of oceanic whitetip sharks were 
landed annually by these 12 pelagic longline vessels on average from 
2005 through 2009. From 2005 through 2009, on average, 25 vessels/year 
kept hammerhead sharks, and less than 2 percent of the total PLL trips 
kept hammerhead sharks. On average, 9,493 lb in total were landed from 
25 PLL vessels per year from 2005 through 2009. Gross average annual 
revenues from oceanic whitetip and hammerhead shark meat and fins from 
the 25 PLL vessels that fished for tuna or tuna-like species and kept 
oceanic whitetip or hammerhead sharks from 2005 through 2009 were 
approximately $9,155 per year across all vessels (37 vessels) or $247 
per vessel per year. NMFS prefers Alternative 2 at this time, because 
it would implement ICCAT shark recommendations and would have minor 
adverse socioeconomic impacts on the PLL fishery.
    Under Alternative A3, a preferred alternative, ICCAT shark 
recommendations would be applied to vessels holding a General Category 
permit when fishing in an HMS tournament or holding either an HMS 
Angling or Charter/Headboat permit fishing either recreationally or 
commercially for tuna and tuna-like species. This alternative would 
prohibit retention of oceanic whitetip and hammerhead sharks along with 
tuna and tuna-like species by vessels fishing recreationally and by 
Charter/Headboat permit holders fishing commercially. Although there 
are no instances of oceanic whitetip or hammerhead sharks retained 
along with tuna or tuna-like species in the LPS or MRFS data from 2005 
through 2009, this alternative could limit fishing opportunities and 
lead to fewer fishing trips. Charter/Headboats could experience a 
decrease in trips as much of their business is based on providing 
recreational anglers the opportunity to catch hammerhead and oceanic 
whitetip sharks. However, because none of the surveyed Charter/Headboat 
trips landed oceanic whitetip and hammerhead sharks along with tuna or 
tuna-like species, NMFS anticipates the impacts to Charter/Headboats to 
be minor. NMFS prefers this alternative at this time, because it would 
implement ICCAT shark recommendations and would have minor, adverse 
socioeconomic impacts on the HMS Angling and Charter/Headboat 
fisheries.
    The status quo alternative, Alternative A1, was not chosen even 
though it would have no additional economic impacts to HMS vessels 
fishing for tuna and tuna-like species, because it would not implement 
ICCAT Recommendations 10-07 and 10-08, which is the purpose of this 
rule. Alternatives A2 and A3 were selected, because they will implement 
the ICCAT recommendations and are anticipated to have minor, adverse 
economic impacts.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties,

[[Page 53658]]

Reporting and recordkeeping requirements, Treaties.

    Dated: August 19, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For reasons set out in the preamble, 50 CFR part 635 is to be 
amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.


0
2. In Sec.  635.21, paragraph (c)(1) is revised to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * **
    (c) * * *
    (1) If a vessel issued or required to be issued a permit under this 
part:
    (i) Is in a closed area designated under paragraph (c)(2) of this 
section and has bottom longline gear onboard, the vessel may not, at 
any time, possess or land any pelagic species listed in Table 2 of 
Appendix A to this part in excess of 5 percent, by weight, of the total 
weight of pelagic and demersal species possessed or landed, that are 
listed in Tables 2 and 3 of Appendix A to this part.
    (ii) Has pelagic longline gear on board, persons aboard that vessel 
may not possess, retain, transship, land, sell, or store oceanic 
whitetip sharks or scalloped, smooth, or great hammerhead sharks.

* * * * *

0
3. In Sec.  635.22, paragraph (a) is revised to read as follows:


Sec.  635.22  Recreational retention limits.

    (a) General--(1) 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.
    (2) Vessels issued an HMS General Category permit under Sec.  
635.4(d) that are participating in a HMS registered tournament, vessels 
issued a HMS Angling category permit under Sec.  635.4(c), or vessels 
issued a HMS Charter/Headboat permit under Sec.  635.4(b) may not 
retain, possess or land oceanic whitetip sharks or scalloped, smooth, 
or great hammerhead sharks if swordfish, tuna, or billfish are retained 
or possessed on board, or offloaded from, the vessel. Such vessels also 
may not retain, possess or land swordfish, tuna, or billfish if oceanic 
whitetip sharks, or scalloped, smooth, or great hammerhead sharks are 
retained or possessed on board, or offloaded from, the vessel.
* * * * *

0
4. In Sec.  635.24, the introductory paragraph is revised, and a new 
paragraph (a)(9) is added to read as follows:


Sec.  635.24  Commercial retention limits for sharks and swordfish.

    The retention limits in this section are subject to the quotas and 
closure provisions in Sec. Sec.  635.27 and 635.28, and the gear 
operation and deployment restrictions in Sec.  635.21.
    (a) * * *--
    (9) Notwithstanding other provisions in this subsection, 
possession, retention, transshipment, landing, sale, or storage of 
oceanic whitetip sharks and scalloped, smooth, and great hammerhead 
sharks is prohibited on vessels issued a permit under this part that 
have PLL gear on board.
* * * * *

0
5. In Sec.  635.31, paragraph (c)(6) is added to read as follows:


Sec.  635.31  Restrictions on sale and purchase.

* * * * *
    (c) * * *
    (6) A dealer issued a permit under this part may not purchase 
oceanic whitetip sharks or scalloped, smooth, or great hammerhead 
sharks from an owner or operator of a fishing vessel with pelagic 
longline gear on board, or from the owner of a fishing vessel issued 
both a HMS Charter/Headboat permit and a commercial shark permit when 
tuna, swordfish or billfish are on board the vessel, offloaded from the 
vessel, or being offloaded from the vessel.
* * * * *

0
6. In Sec.  635.71, paragraph (d)(19) is added to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (19) Retain, possess, transship, land, store, sell or purchase 
oceanic whitetip sharks or scalloped, smooth, or great hammerhead 
sharks as specified in Sec.  635.21(c)(1)(ii), Sec.  635.22(a)(2), 
Sec.  635.24, and Sec.  635.31(c)(6).
* * * * *
[FR Doc. 2011-21732 Filed 8-26-11; 8:45 am]
BILLING CODE 3510-22-P