[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Proposed Rules]
[Pages 37647-37651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15348]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 120416016-2151-01]
RIN 0648-BB96
Atlantic Highly Migratory Species; Silky Shark Management
Measures
AGENCY: National Marine Fisheries Service, National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This rule would implement the International Commission for the
Conservation of Atlantic Tunas (ICCAT) recommendation 11-08, which
prohibits retaining, transshipping, or landing of silky sharks
(Carcharhinus falciformis) caught in association with ICCAT fisheries.
In order to improve domestic enforcement capabilities, the National
Marine Fisheries Service is also proposing to prohibit the storing,
[[Page 37648]]
selling and purchasing of the species. This rule would affect the
commercial HMS pelagic longline fishery for tuna and tuna-like species
in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico.
This rule would not affect commercial fishermen fishing for sharks with
bottom longline, gillnet, or handgear; nor would the rule affect
recreational fishermen as harvesting silky sharks is already prohibited
in the recreational fishery. This action implements the ICCAT
recommendation, 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: Written comments must be received by 5 p.m., local time, on July
23, 2012.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2012-0116, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal www.regulations.gov. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter NOAA-NMFS-2012-0116 in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on the right of that line.
Mail: Submit written comments to Sarah de Flesco or Karyl
Brewster-Geisz at National Marine Fisheries Service, Highly Migratory
Species Management Division, 1315 East-West Highway, Silver Spring, MD
20910.
Fax: 301-713-1917; Attn: Sarah de Flesco.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information, or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file
formats only.
FOR FURTHER INFORMATION CONTACT: Sarah de Flesco 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 regulations, as may be necessary and
appropriate, to implement ICCAT recommendations. ICCAT is responsible
for the conservation of tuna and tuna-like 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/. 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. The implementing
regulations for Atlantic highly migratory species (HMS) are at 50 CFR
part 635.
At the 22nd Regular Meeting of ICCAT in 2011, ICCAT adopted
Recommendation 11-08, which requires the United States to initiate
rulemaking in order to fulfill obligations as a Contracting Party to
the Convention. The ``Recommendation on the Conservation of Silky
Sharks Caught in Association with ICCAT Fisheries (11-08),'' requires
fishing vessels operating in ICCAT fisheries to release all silky
sharks whether dead or alive, and prohibits retaining on board,
transshipping, or landing any part or whole carcass of a silky shark
(Carcharhinus falciformis). The recommendation cites the fact that
silky sharks were ranked as the species with the highest degree of
vulnerability in the 2010 ecological risk assessment for Atlantic
sharks.
In this proposed rule, NMFS considers changes to the Atlantic HMS
regulations at 50 CFR part 635, consistent with the ICCAT
recommendation and the Magnuson-Stevens Act. Such changes would affect
only commercial vessels with pelagic longline gear onboard that fish
for tunas and tuna-like species. Harvesting silky sharks is already
prohibited in the recreational fishery. While silky sharks could be
caught on handgear, bottom longline, or gillnet gear commercially,
these gears target sharks directly and are not used in association with
ICCAT fisheries; therefore, we are not considering action to prohibit
the retention of silky sharks from these gears.
We prepared a draft Environmental Assessment (EA), Regulatory
Impact Review (RIR), and an Initial Regulatory Flexibility Analysis
(IRFA), which present and analyze anticipated environmental, social,
and economic impacts of each alternative contained in this proposed
rule. The complete list of alternatives and related analyses are
provided in the draft EA/RIR/IRFA, and are not repeated here in their
entirety. A copy of the draft EA/RIR/IRFA prepared for this proposed
rule is available from NMFS (see ADDRESSES).
In this action, we propose to prohibit the retention of silky
sharks on Atlantic HMS commercially-permitted vessels that have pelagic
longline gear on board. Additionally, we propose to prohibit the
storing, selling, or purchasing of silky sharks to ensure domestic
enforcement ability.
Silky sharks were last assessed as part of the Large Coastal Shark
complex, which was assessed during the Southeast Data, Assessment, and
Review (SEDAR) 11 process. Silky sharks are part of the complex, and
the stock status of silky sharks is unknown.
Silky sharks were included in the 2010 ecological risk assessment
conducted for the ICCAT Standing Committee on Research and Statistics.
In the risk assessment, silky sharks were ranked as the Atlantic shark
species with the highest degree of vulnerability to fishing. Given the
low productivity and high susceptibility of silky sharks to pelagic
longline fisheries as noted in the ecological risk assessment, the
implementation of the ICCAT silky shark recommendation could benefit
the status of this stock by reducing mortality in the Atlantic Ocean.
We considered three alternatives for the proposed action.
Alternative 1 would maintain the status quo and would not implement
ICCAT Recommendation 11-08. Alternative 2 would prohibit retaining,
transshipping, and landing silky sharks. The proposed action is
alternative 3, which would prohibit retaining, transshipping, and
landing as well as prohibiting the storing, selling, and purchasing of
silky sharks.
An analysis of the 2006 through 2010 HMS logbook data, which covers
the HMS pelagic longline fishery, indicates that under status quo
(alternative 1) on average a total of 60 silky sharks are kept per year
and a total of 1,417 are
[[Page 37649]]
discarded dead (742) or alive (676) each year in U.S. fisheries. Thus,
from these figures, only about 4 percent of all silky sharks caught by
pelagic longline vessels are retained.
Under both alternative 2 and alternative 3 (the proposed
alternative), all live and dead silky sharks would have to be released
by pelagic longline fishermen. According to the pelagic longline
observer program and HMS logbook data, on average each year, 60 silky
sharks were retained, of which 17 were caught alive and 43 caught dead.
Therefore, under these two alternatives, of the 60 silky sharks kept
per year, 17 would be released alive. Although silky sharks are not
caught in large numbers in the pelagic longline fishery (i.e., less
than 12 percent of pelagic longline trips between 2006-2010 caught
silky sharks), these alternatives would have minor, beneficial
ecological impacts for silky sharks because mortality would be reduced
somewhat in the pelagic longline fishery.
Under both alterative 2 and alternative 3 (the proposed action),
approximately 785 would be discarded dead (43 sharks discarded from
those that would be retained under the status quo plus 742 that would
be discarded dead under the status quo). The actual number of silky
sharks expected to be caught (1,477 per year on average) in the pelagic
longline fishery is not expected to change as a result of this action.
Because few silky sharks are currently retained in proportion to the
total number of silky sharks caught, the prohibition against retention
would have minor beneficial ecological impacts although it may provide
some additional incentive to avoid the species. Any reduction of
mortality for silky sharks could be expected to also have beneficial
impacts due to low productivity and high susceptibility of silky sharks
to pelagic longline fisheries as noted in the 2010 ICCAT ecological
risk assessment.
Atlantic HMS commercial permit holders with pelagic longline gear
on board would no longer be authorized to retain silky sharks and could
experience minor, adverse socioeconomic impacts. The current HMS
pelagic longline fleet consists of 242 vessels as of October 2011.
However, according to HMS logbook data, on average, seven pelagic
longline vessels combined landed 60 silky sharks weighing 2,671 lb per
year from 2006 through 2009. Using the median, ex-vessel price per
pound of $0.75 for silky shark meat and $11.11 for shark fins, this is
equivalent to $3,392 ($1,489 for fins and $1,903 for meat) in average
annual gross revenues from landings of silky sharks from pelagic
longline vessels or $485 per vessel that landed silky sharks. Because
the proposed action would prohibit the retention of silky sharks from
pelagic longline vessels, it would likely result in minor, adverse
socioeconomic impacts to commercial pelagic longline fishermen because,
even though there are small amounts of silky sharks landed, fishermen
would no longer be able to land this species and could potentially lose
annual revenues of $3,392 for all vessels or $485 per vessel. However,
it is unlikely that commercial fishermen would alter fishing practices
for tuna and tuna-like species, because silky shark landings constitute
such a small portion of pelagic longline catch, landings, and revenues.
Under alternative 3 (the proposed action), the pelagic longline
fishery would be prohibited against the storing, selling, and
purchasing of silky sharks in addition to prohibiting the retaining,
transshipping, and landing of silky sharks. The proposed action would
provide consistency with current regulations for oceanic whitetip and
hammerhead (except for Sphyrna tiburo) sharks in the commercial pelagic
longline fishery for tuna and tuna-like species and would simplify
compliance, for fishermen and for dealers, as well as enforcement. The
measureable ecological impacts of the proposed action (alternative 3)
remain the same as alternative 2. However, the proposed action might
have additional ecological benefits by reducing mortality of silky
sharks. Additionally, under the proposed action, Atlantic HMS
commercial permit holders with pelagic longline gear on board would no
longer be authorized to retain silky sharks and could experience minor,
adverse socioeconomic impacts. The measureable economic and social
impacts of the proposed action are similar to those of alternative 2.
However, under the proposed action, a pelagic longline vessel operator
would not be allowed to store or sell silky shark products and a dealer
could not buy silky sharks from a pelagic longline vessel owner or
operator. Adding additional prohibitions beyond those called for under
alternative 2 would also be consistent with the approach we have taken
for oceanic whitetip sharks and scalloped, smooth and great hammerhead
sharks in the commercial pelagic longline fishery for tuna and tuna-
like species. We feel that adding the prohibitions against storing,
selling and purchasing silky sharks under the specified circumstances
would make them easier to remember by making the regulations consistent
with those in place for oceanic whitetip and scalloped, smooth and
great hammerhead sharks, and thus, would help fishermen and dealers and
improve compliance. The addition would also allow for enforcement of
the prohibition even in cases where the violation is not detected at
sea or during landing. Finally, the extension of the prohibition
against the sale and purchase should help to eliminate the market for
silky sharks and encourage compliance with the prohibition on
retention. Although there would be some minor adverse socioeconomic
impacts under the proposed action due to a slight loss of revenue by
pelagic longline vessel operators similar to that of alternative 2, the
proposed action would provide minor beneficial socioeconomic impacts by
providing a rule that is consistent with the current regulations and
easier with which to comply and enforce.
In conclusion, the proposed action of prohibiting the retention of
silky sharks in the pelagic longline fishery for tuna and tuna-like
species is likely to have minor beneficial ecological impacts because
of the potential reduction in mortality, and minor adverse
socioeconomic impacts because this species constitutes a low percentage
of the total pelagic longline landings.
Public Hearing
Comments on this proposed rule, Draft Environmental Assessment, and
Finding of No Significant Impact may be submitted via http://www.regulations.gov, mail, or fax, and comments may also be submitted
at a public hearing (see DATES and ADDRESSES). NMFS solicits comments
on this proposed rule by July 23, 2012. NMFS will hold a public hearing
via conference call for this proposed rule. The hearing location is
physically accessible to people with disabilities. Requests for sign
language interpretation or other auxiliary aids should be directed to
Sarah de Flesco at 301-427-8503, at least 7 days prior to the meeting.
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Location Date Time Address
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Conference call.................... July 9, 2012.......... 1-3 p.m............... Conference line: 800-857-
3903; Passcode: 6059057.
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[[Page 37650]]
The public is reminded that NMFS expects participants at the public
hearings to conduct themselves appropriately. At the beginning of each
public hearing, a representative of NMFS will explain the ground rules
(e.g., alcohol is prohibited from the hearing room; attendees will be
called to give their comments in the order in which they registered to
speak; each attendee will have an equal amount of time to speak; and
attendees should not interrupt one another). The NMFS representative
will attempt to structure the meeting so that all attending members of
the public will be able to comment, if they so choose, regardless of
the controversial nature of the subject(s). Attendees are expected to
respect the ground rules, and, if they do not, they will be asked to
leave the hearing.
Classification
Pursuant to the Magnuson-Stevens Act, the NMFS Assistant
Administrator has determined that the proposed rule is consistent with
the 2006 Consolidated HMS FMP and its amendments, other provisions of
the Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
NMFS prepared an environmental assessment that discusses the impact
on the environment as a result of this rule. In this proposed action,
NMFS is considering prohibitions against retaining, transshipping,
landing, storing, selling, or purchasing of silky sharks in the
Atlantic pelagic longline fishery for tuna and tuna-like species. A
copy of the environmental assessment is available from NMFS (see
ADDRESSES).
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as
required by section 603 of the RFA (RFA). The IRFA describes the
economic impact this proposed rule, if adopted, 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 603(b)(1) of the Regulatory Flexibility
Act, the purpose of this proposed rulemaking is consistent with the
Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its
amendments to implement recommendations of ICCAT pursuant to ATCA and
to achieve domestic management objectives under the Magnuson-Stevens
Act.
In compliance with section 603(b)(2) of the Regulatory Flexibility
Act, the objectives of this proposed rulemaking are to consider changes
to the HMS regulations at 50 CFR part 635 consistent with an ICCAT
recommendation. NMFS proposes to implement the 2011 ICCAT silky shark
recommendation in the Atlantic HMS fisheries that target tuna and tuna-
like species because NMFS considers these fisheries to be ICCAT-managed
fisheries. The regulatory changes would affect HMS vessels that catch
sharks in association with tuna and tuna-like species on commercial
vessels that deploy pelagic longline gear. This proposed action is
necessary to implement an ICCAT recommendation 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 603(b)(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, this proposed action would
apply to all participants in the Atlantic HMS pelagic longline
commercial fishery that targets tuna and tuna-like species. As of
October 2011, 242 vessels held a commercial Tuna Longline permit and
can be reasonably assumed to use pelagic longline gear. All of the
vessels holding these permits could be affected by this action.
This proposed rule does not contain any new reporting,
recordkeeping, or other compliance requirements (5 U.S.C. 603(b)(4)).
Similarly, this proposed rule would not conflict, duplicate, or overlap
with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen,
dealers, and other participants in this fishery must comply with a
number of international agreements, domestic laws, and other FMPs.
These include, but are not limited to, the Magnuson-Stevens Act, ATCA,
the High Seas Fishing Compliance Act, the Marine Mammal Protection Act,
the Endangered Species Act, the National Environmental Policy Act, the
Paperwork Reduction Act, and the Coastal Zone Management Act. NMFS does
not believe that the proposed regulations would duplicate, overlap, or
conflict with any relevant regulations, Federal or otherwise.
Under section 603(c), agencies are required to describe any
alternatives to the proposed rule that accomplish the stated objectives
and which minimize any significant economic impacts. These impacts are
discussed below and in the draft Environmental Assessment for the
proposed 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 proposed 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 are 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 proposed rulemaking and provides rationale for
identifying the preferred alternatives to achieve the desired
objective.
NMFS prepared this IRFA to analyze the impacts on small entities of
the alternatives for implementing the ICCAT Recommendation 11-08 for
pelagic longline vessels that target tuna and tuna-like species, all of
which are considered small entities. NMFS considered and analyzed three
alternatives including Alternative 1 (no action); Alternative 2
(implementing ICCAT Recommendation 11-08 in the
[[Page 37651]]
commercial pelagic longline fishery for tuna and tuna-like species);
and Alternative 3 (implementing ICCAT Recommendation 11-08 and
additional prohibitions against storing, selling and purchasing of
silky sharks in the commercial pelagic longline fishery for tuna and
tuna-like species).
Under the No Action Alternative, Alternative 1, there would be no
additional economic impacts to HMS pelagic longline vessels fishing for
tuna and tuna-like species. Commercial pelagic longline vessels that
fish for tuna and tuna-like species that are also currently authorized
to land silky sharks would be able to continue that practice.
Commercial pelagic longline fishermen would continue to be able to land
silky sharks and could potentially earn $485 per vessel. Additionally,
each vessel is predicted to earn a total of $190,986 per year in
revenue from swordfish and tuna ($96,525 from swordfish and $94,461
from tuna). Therefore, revenues from silky shark sales are minor (<1
percent) compared to each vessel's overall revenue.
Under Alternative 2, pelagic longline vessel operators and owners
could not retain, transship, or land silky sharks, consistent with
ICCAT Recommendation 11-08. Thus, on average, each vessel would lose
approximately $485 annually in gross revenues, which is minor (<1
percent) compared to each vessel's overall revenue from swordfish and
tunas ($190,986 total revenues).
Under Alternative 3, pelagic longline vessel owners and operators
could not retain, transship, land, sell, or store silky sharks,
consistent with ICCAT Recommendation 11-08 and other domestic
regulations. This alternative is essentially the same as alternative 2
but would improve domestic enforcement capabilities. Thus, on average,
each vessel would lose approximately $485 annually in gross revenues,
which is minor (<1 percent) compared to each vessel's overall revenue
from swordfish and tunas ($190,986 total revenues). We prefer
Alternative 3 at this time, because it would implement ICCAT
Recommendation 11-08, would likely have minor ecological benefits,
would have minor socioeconomic impacts on the pelagic longline fishery,
and would provide enhanced enforcement abilities. Additionally, we
believe this alternative would be unlikely to change fishing practices
or effort.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: June 19, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For reasons set out in the preamble, 50 CFR part 635 is proposed to
be amended as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
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.
2. In Sec. 635.21, paragraph (c)(1)(ii) is revised to read as
follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) * * *
(1) * * *
(ii) Has pelagic longline gear on board, persons aboard that vessel
may not possess, retain, transship, land, sell, or store silky sharks,
oceanic whitetip sharks, or scalloped, smooth, or great hammerhead
sharks.
* * * * *
3. In Sec. 635.24, paragraph (a)(9) is revised to read as follows:
Sec. 635.24 Commercial retention limits for sharks and swordfish.
* * * * *
(a) * * *
(9) Notwithstanding other provisions in this subsection,
possession, retention, transshipment, landing, sale, or storage of
silky sharks, oceanic whitetip sharks, and scalloped, smooth, and great
hammerhead sharks is prohibited on vessels issued a permit under this
part that have pelagic longline gear on board.
* * * * *
4. In Sec. 635.31, paragraph (c)(6) is revised 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 silky
sharks, 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. A dealer issued a permit under this
part may not purchase oceanic whitetip sharks or scalloped, smooth, or
great hammerhead sharks 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.
* * * * *
5. In Sec. 635.71, paragraph (d)(19) is revised to read as
follows:
Sec. 635.71 Prohibitions.
* * * * *
(d) * * *
(19) Retain, possess, transship, land, store, sell or purchase
silky sharks, 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. 2012-15348 Filed 6-21-12; 8:45 am]
BILLING CODE 3510-22-P