[Federal Register Volume 77, Number 193 (Thursday, October 4, 2012)]
[Rules and Regulations]
[Pages 60632-60637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24429]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 120416016-2469-02]
RIN 0648-BB96


Atlantic Highly Migratory Species; Silky 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 implements 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 facilitate domestic compliance and enforcement, NMFS also 
prohibits the storing, selling, and purchasing of the species. This 
rule primarily affects the commercial Atlantic highly migratory species 
(HMS) pelagic longline fishery for tuna and tuna-like species in the 
Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico. This 
rule does not affect commercial fishermen fishing for sharks with 
bottom longline, gillnet, or handgear, and it does not further affect 
recreational fishermen because 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: Effective November 5, 2012.

ADDRESSES: Supporting documents, including the Environmental Assessment 
(EA), Regulatory Impact Review (RIR), and Final Regulatory Flexibility 
Analysis (FRFA), and others, such as the Fishery Management Plans 
described below, may be downloaded from the Highly Migratory Species 
(HMS) Management Division Web site at www.nmfs.noaa.gov/sfa/hms/. These 
documents also are available by request at the telephone number below.

FOR FURTHER INFORMATION CONTACT: Peter Cooper 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. Under ATCA, the Secretary of Commerce (Secretary) 
shall promulgate such regulations as may be necessary and appropriate 
to carry out 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 HMS are at 50 CFR part 635.

Background

    At the 22nd Regular Meeting of ICCAT in 2011, ICCAT adopted 
Recommendation 11-08 (the ``Recommendation by ICCAT on the Conservation 
of Silky Sharks Caught in Association with ICCAT Fisheries''), which 
requires the United States to initiate rulemaking in order to fulfill 
obligations as a Contracting Party to the Convention. Recommendation 
11-08 requires fishing vessels operating in ICCAT-managed 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 ICCAT recommendation cites 
the fact that silky sharks were ranked as the species with the highest 
degree of vulnerability in ICCAT's 2010 ecological risk assessment for 
Atlantic sharks.
    Further background information, including the need for these silky 
shark management measures, was provided in the preamble to the proposed 
rule (77 FR 37647, June 22, 2012) and is not repeated here.
    NMFS prepared an EA/RIR/FRFA, which presents and analyzes 
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 EA/RIR/FRFA, and 
is not repeated here. A copy of the EA/RIR/FRFA prepared for this 
action is available from NMFS (see ADDRESSES).
    In this final action, NMFS prohibits the retention of silky sharks 
on Atlantic HMS commercially-permitted vessels that have pelagic 
longline gear on board. As described in the Changes from the Proposed 
Rule section below, this final action also prohibits the retention of 
silky sharks on vessels that are issued both an HMS Charter/Headboat 
permit and a commercial shark permit, when tuna, swordfish or billfish 
are on board the vessel. Additionally, as described in the response to 
comments below and in the EA, NMFS prohibits the storing, selling, or 
purchasing of silky sharks to facilitate domestic compliance and 
enforcement.

[[Page 60633]]

Comments and Responses

    NMFS received five written public comments on the proposed rule. 
There were no attendees at the public hearing held via conference call 
on July 9, 2012. Below, NMFS summarizes and responds to all comments 
made specifically on the proposed rule.
    Comment 1: Given concerns about the vulnerability of silky sharks, 
retention of silky sharks should be prohibited in all HMS fisheries 
(commercial and recreational), and these species should be added to the 
prohibited species list.
    Response: The purpose of this action is to implement ICCAT 
Recommendation 11-08, which requires the release of silky sharks 
``caught in association with ICCAT fisheries.'' Consistent with 
previous rulemakings (see response to comment 2, below), NMFS 
interprets ``ICCAT fisheries'' to mean fisheries for tuna and tuna-like 
species and to not include directed shark fisheries or other HMS 
fisheries. Therefore, the request to expand this requirement to other 
fisheries is outside the scope of this rulemaking. NMFS manages the 
U.S. directed commercial shark fisheries through a variety of domestic 
management measures consistent with the requirements of the Magnuson-
Stevens Act. The commenter further requested that we add silky sharks 
to the prohibited species list under the Magnuson-Stevens Act. That 
request is also beyond the scope of this rulemaking to implement ICCAT 
Recommendation 11-08 under ATCA.
    Comment 2: The proposed rule fails to satisfy the federal 
government's ICCAT obligations by continuing to allow silky sharks to 
be retained in fisheries other than the pelagic longline fishery, which 
are clearly included in the scope of ICCAT recommendations. Whether or 
not a fishery is targeting sharks is irrelevant. NMFS must consider all 
HMS fisheries that are allowed to retain tuna or tuna-like species to 
be ICCAT fisheries and must therefore prohibit retention of silky 
sharks in all of them. If the true intent is to ensure a reduction in 
silky shark mortality and to ensure that ICCAT measures are enforced, 
then these prohibitions should apply to all HMS fisheries.
    In the process of making the point above, one commenter incorrectly 
quoted the text of ICCAT Recommendation 11-08 as ``prohibit retaining 
onboard, transshipping, landing, storing, selling, or offering for sale 
any part or whole carcass of silky sharks taken in the Convention Area 
in association with ICCAT fisheries.''
    Response: The relevant ICCAT recommendation was limited in scope to 
silky sharks caught in association with ICCAT-managed fisheries. 
Therefore, the requirement to release all silky sharks will be applied 
only to U.S. fisheries that target tuna and tuna-like species. This 
action would affect primarily commercial vessels with pelagic longline 
gear onboard that fish for tunas and tuna-like species. During the 
preparation of the final rule and in response to the comment, NMFS 
determined that, to make the action consistent with the August 29, 2011 
action that implemented similar ICCAT Recommendations regarding certain 
hammerhead sharks and oceanic whitetip sharks (76 FR 53652), the 
regulatory language associated with this action needed to be revised to 
specify that the prohibition on retention also applies to a small 
number of vessels (currently five) that are issued both an HMS Charter/
Headboat permit and a commercial shark permit when tuna, swordfish or 
billfish are on board the vessel. This measure is necessary to ensure 
consistency across implementation of ICCAT recommendations and to 
enhance compliance and enforcement. These vessels, however, generally 
do not target or land silky sharks when they have tunas or tuna-like 
species on board. Harvesting silky sharks is already prohibited in the 
recreational fishery. Thus, while one or two additional silky sharks 
might have to be released in the specified HMS Charter/Headboat and 
commercial shark permit combination, inclusion of this permit 
combination in the ``ICCAT fisheries'' subject to this rulemaking does 
not change the environmental or economic impacts described in the EA/
RIR/IRFA prepared for the proposed action.
    U.S. commercial shark fisheries using gear other than pelagic 
longline currently are managed through a variety of measures, including 
quotas and subquotas, seasons, retention limits, gear restrictions, and 
time/area closures. Although silky sharks could be caught on handgear, 
bottom longline, or gillnet gear, these gears directly target sharks 
and are not used in association with ICCAT fisheries. Additionally, 
while it is possible to catch tuna and tuna-like species using 
handgear, bottom longline, and gillnet gear, this rarely occurs when 
these gear types are used to target sharks. For example, data from 
observed bottom longline and gillnet trips show bycatch of two 
sailfish, no swordfish, and no managed tunas in 2010 (NMFS, 2011) and 
three bigeye tuna and one skipjack tuna in 2011 (Gulak, 2012; Hale et 
al., 2012).
    Because there are three separate ICCAT shark recommendations with 
similar language, NMFS would like to clarify the differences in the 
text to reduce potential confusion. Under Recommendation 10-07, ICCAT 
parties are required to ``prohibit retaining onboard, transshipping, 
landing, storing, selling, or offering for sale any part or whole 
carcass of oceanic whitetip sharks in any fishery.'' Under 
Recommendation 10-08, ICCAT parties are required to ``prohibit 
retaining onboard, transshipping, landing, storing, selling, or 
offering for sale any part or whole carcass of hammerhead sharks of the 
family Sphyrnidae (except for Sphyrna tiburo) taken in the Convention 
Area in association with ICCAT fisheries.'' The language in these two 
recommendations differs from that in Recommendation 11-08, under which 
ICCAT parties ``shall require fishing vessels flying their flag and 
operating in ICCAT managed fisheries to release all silky sharks 
whether dead or alive, and prohibit retaining on board, transshipping, 
or landing any part or whole carcass of silky shark.'' Recommendation 
11-08 for silky sharks does not include language that prohibits 
storing, selling and purchasing any part of the shark species. Adding 
the prohibitions against storing, selling and purchasing silky sharks 
under the specified circumstances would, by making the regulations 
consistent with those in place for oceanic whitetip and scalloped, 
smooth and great hammerhead sharks, make the regulations easier to 
remember 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 reduce the market for silky sharks and 
encourage compliance with the prohibition on retention.
    Comment 3: NMFS' proposal to prohibit retention of silky sharks 
only when tuna or tuna-like species are also retained is flawed and may 
increase dead discards. A fisherman may catch and keep a silky shark, 
thus killing the shark. If the fisherman then catches a tuna or tuna-
like species that he would prefer to keep, the fisherman will dump the 
shark overboard dead. The discard mortality would be significantly 
higher than if the shark had been released immediately after being 
captured.
    Response: The action NMFS is taking is to prohibit the retention of 
silky sharks on Atlantic HMS commercially-permitted vessels in the 
commercial ICCAT fisheries, primarily affecting those that have pelagic 
longline gear on

[[Page 60634]]

board. Under this action, in the scenario the commenter describes, a 
pelagic longline vessel would be required to release the silky shark 
regardless of what other species may be caught on the same trip because 
of the pelagic longline gear onboard. A vessel issued both an HMS 
Charter/Headboat permit and a commercial shark permit would not be able 
to retain both a tuna and a silky shark. This is a very small number of 
vessels, however, and very few such situations are expected to arise.
    An analysis of the 2006-2010 HMS logbook data indicates that, on 
average, a total of 60 silky sharks are kept per year. An additional 
1,417 silky sharks per year were caught (on average) and subsequently 
discarded (676 released alive and 742 discarded dead, on average). NMFS 
does not expect the actual number caught (1,477 per year on average) to 
change as a result of this action because fishermen participating in 
the pelagic longline fishery do not target or retain large numbers of 
silky sharks now and charter vessels typically do not target or land 
silky sharks when they have tunas or tuna-like species on board. NMFS 
estimates that, of the 60 silky sharks that are currently retained (on 
average), 17 (29 percent) would be released alive as a result of this 
rulemaking. The number of silky sharks discarded dead would increase 
slightly (from 742 to 785, on average) since pelagic longline vessels 
would no longer be able to retain any silky sharks, and one or two 
silky sharks might have to be released by vessels with the specified 
HMS Charter/Headboat and commercial shark permit combination. In 
addition, current regulations require that when HMS are released, they 
be released in a manner that will ensure maximum probability of 
survival, without removing the fish from the water. This is consistent 
with the provision of Recommendation 11-08 to promptly release silky 
sharks unharmed.
    Comment 4: One commenter questioned NMFS' data on shark mortality, 
indicating it is antiquated, obsolete, and inaccurate, and stated that 
ICCAT is too lax and negligent in protection of species.
    Response: The information NMFS used for the environmental and 
economic analyses for this action includes both pelagic longline 
observer program (POP) data and HMS logbook data from 2006 through 
2010. Complete, finalized data from 2011 were not available at the time 
the draft EA/RIR/IRFA. NMFS conducted an analysis of the newly 
available 2011 data during the public comment period for this action 
and determined that, in general, the inclusion of the 2011 data would 
not substantially alter any of the data presented in the draft EA/RIR/
IRFA, or result in any changes to the overall conclusions or preferred 
alternatives of the draft document.
    NMFS has undertaken management measures for all Atlantic HMS 
species fully consistent with its legal obligations under the Magnuson-
Stevens Act, ATCA, and other relevant statutes.
    Comment 5: One commenter opposed using ICCAT as a vehicle for 
management of all sharks, especially large coastal sharks, until there 
is firm progress from other countries actively participating in pelagic 
shark conservation. Further, seeking shark recommendations at ICCAT 
circumvents U.S. domestic fisheries law, including the National 
Standards of the Magnuson-Stevens Act, and is contrary to the Food and 
Agriculture Organization of the United Nations (FAO) International Plan 
of Action, which ``encourages the full use of dead sharks.''
    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. As 
described under Comment 1 above, NMFS does not manage the U.S. directed 
shark fishery for LCS or other shark species under ICCAT/ATCA.
    The Shark Conservation Act of 2010 includes a provision that urges 
international fishery management organizations to which the United 
States is a member to adopt shark conservation measures, including 
measures to prohibit removal of any of the fins of a shark and 
discarding the carcass of the shark at sea.
    For example, in the case of shortfin mako, where the United States' 
contribution to the overall fishing mortality is small relative to 
other ICCAT Parties, developing effective multilateral shark management 
measures can be an effective tool for ending overfishing of the entire 
shortfin mako stock. This approach is also consistent with National 
Standard 3 that states that to the extent practicable, an individual 
stock of fish shall be managed as a unit throughout its range, and 
interrelated stocks of fish shall be managed as a unit or in close 
coordination.
    The main objective of the FAO IPOA for the Conservation and 
Management of Sharks (IPOA) is to ensure the conservation and 
management of sharks and their long-term sustainable use. It calls on 
members to ``strive to cooperate through regional and subregional 
fisheries organizations or arrangements, and other forms of 
cooperation, with a view to ensuring the sustainability of shark 
stocks, including, where appropriate, the development of subregional or 
regional shark plans.'' The IPOA calls on nations to implement a 
National Plan of Action that among other things should aim to ensure 
that shark catches from directed and non-directed fisheries are 
sustainable as well as identify and provide special attention in 
particular to vulnerable or threatened shark stocks. The IPOA provision 
regarding the ``full use of dead sharks'' referenced by the commenter 
is also an attribute that the FAO IPOA recommends for inclusion in a 
nation's national plan of action. In 2001, the United States developed 
and implemented the U.S. National Plan of Action for the Conservation 
and Management of Sharks in consultation with stakeholders. While it 
may be appropriate to require full utilization of certain species, the 
Ecological Risk Assessment highlighted that silky sharks are vulnerable 
due to limited productivity and susceptible to capture in pelagic 
longline fisheries such that ICCAT adopted a ban on retention. NMFS 
acknowledges that while this ban on retention may lead to some dead 
discards, the release of additional live silky sharks is expected to 
assist with sustainability of the resource.
    Comment 6: Neither NMFS nor ICCAT has conducted a domestic 
``species-specific'' stock assessment for silky sharks. The 
justification for Recommendation 11-08 was based on an ecological risk 
assessment. NMFS needs to conduct a full benchmark stock assessment for 
silky sharks as soon as possible.
    Response: ICCAT's Standing Committee on Research and Statistics 
(SCRS) is responsible for conducting all ICCAT stock assessments and 
biological reviews for species included in the ICCAT Convention Area, 
and is authorized to study species other than tunas and tuna-like 
species under Article IV of the ICCAT Convention. The ICCAT plenary 
determines the schedule for stock assessments conducted by ICCAT.
    While NMFS usually conducts shark stock assessments through the 
Southeast Data, Assessment, and Review (SEDAR) process, some pelagic 
sharks have been assessed by ICCAT's SCRS and because the United States 
is only one of numerous ICCAT Parties that catch silky sharks, it would 
be appropriate for

[[Page 60635]]

ICCAT's SCRS to assess the status of the entire Atlantic silky shark 
stock so that the assessment can take into account all sources of 
mortality. While there have been no formal or peer-reviewed stock 
assessments for silky sharks, the SCRS ecological risk assessment is a 
valid basis for management decisions in situations where there is no 
formal assessment and is appropriate for management action under the 
Magnuson-Stevens Act.
    Comment 7: This action would result in more regulatory discards, 
especially if any southern zones currently closed to pelagic longline 
gear are reopened. Silky sharks are found in the southern ranges around 
the Gulf Stream and in the Gulf of Mexico.
    Response: Please see the response to Comment 3 above. NMFS is not 
currently proposing or considering re-opening any southern zones to 
pelagic longline gear. While the comment is largely speculative, we 
note that any potential, future action to reopen an area or areas 
currently closed to HMS-permitted vessels with pelagic longline gear on 
board would include an analysis of the impacts of such proposed action 
on HMS and other species, including silky sharks, and the public would 
have opportunity to comment on any such proposal.
    Comment 8: One commenter indicated that adult silky shark fins are 
worth approximately $20-25 per pound ex-vessel, substantially higher 
than the $11.11 value in the proposed rule analysis. The commenter also 
is concerned that the estimate of annual landings is low given the 
number of active pelagic longline vessels.
    Response: The economic data and landings information used in the 
analysis for this action is as reported to NMFS via HMS logbooks during 
the 2006 through 2010 period. Reported economic data indicate that 
prices were $11.11, not $20-25 as the commenter stated. As landings 
information is tallied from HMS logbooks from all active fishing 
vessels, the estimate in this rule is the best available information.

Changes From the Proposed Rule

    During the preparation of the final rule and in response to public 
comments about the scope of the proposed rule, NMFS determined that, to 
make the action consistent with the August 29, 2011 action that 
implemented similar ICCAT Recommendations regarding certain hammerhead 
sharks and oceanic whitetip sharks (76 FR 53652), and to align the rule 
with the regulated community's understanding of its application, the 
regulatory language associated with this action needed to be revised to 
specify that the prohibition on retention also applies to a small 
number of vessels (currently five) that are issued both an HMS Charter/
Headboat permit and a commercial shark permit when tuna, swordfish or 
billfish are on board the vessel. This measure is necessary to ensure 
consistency across implementation of ICCAT recommendations and to 
enhance compliance and enforcement. These vessels, however, generally 
do not target or land silky sharks when they have tunas or tuna-like 
species on board. This modification does not change the environmental 
or economic impacts described in the EA/RIR/IRFA prepared for the 
proposed action.

Classification

    The NMFS Assistant Administrator has determined that this final 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, other provisions of the Magnuson-Stevens Act, and other 
applicable law.
    NMFS prepared an environmental assessment for this rule that 
analyzes the impact of the action on the environment. In this action, 
NMFS prohibits retaining, transshipping, landing, storing, selling, or 
purchasing silky sharks in the commercial ICCAT fisheries, primarily 
the Atlantic pelagic longline fishery for tuna and tuna-like species. 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.
    In compliance with section 604 of the Regulatory Flexibility Act 
(RFA), 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 and analysis of economic and ecological impacts 
are available from NMFS (see ADDRESSES). A summary of the FRFA follows.
    In compliance with section 604(a)(1) of the RFA, the purpose of 
this rulemaking is, consistent with the Consolidated HMS FMP and its 
amendments, to implement ICCAT Recommendation 11-08 pursuant to ATCA 
and to achieve domestic management objectives under the Magnuson-
Stevens Act. This rulemaking implements the 2011 silky shark 
recommendation in the Atlantic HMS fisheries that target tuna and tuna-
like species because NMFS considers these fisheries to be ICCAT 
fisheries, which are the fisheries to which the recommendation 
specifically applies. The regulatory changes would affect the 
commercial ICCAT fisheries, primarily the Atlantic highly migratory 
species (HMS) pelagic longline fishery for tuna and tuna-like species 
in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico. 
This action is necessary to implement ICCAT Recommendation 11-08 
pursuant to ATCA. Under ATCA, the Secretary shall promulgate such 
regulations as may be necessary and appropriate to carry out ICCAT 
recommendations.
    Adding prohibitions beyond those called for under Recommendation 
11-08 would make this action consistent with the approach NMFS has 
taken for oceanic whitetip sharks and scalloped, smooth and great 
hammerhead sharks in the commercial pelagic longline fishery for tuna 
and tuna-like species. Adding the prohibitions against storing, selling 
and purchasing silky sharks under the specified circumstances would, by 
making the regulations consistent with those in place for oceanic 
whitetip and scalloped, smooth and great hammerhead sharks, make the 
regulations easier to remember and thus would help fishermen and 
dealers and improve compliance. The additions would enhance enforcement 
of the prohibition, particularly where prohibited retention is not 
initially detected at sea or during landing. Finally, the extension of 
the prohibition against the sale and purchase should help to reduce the 
market for silky sharks and encourage compliance with the prohibition 
on retention. Therefore, this action is intended to implement 
Recommendation 11-08 in a manner that meets our obligations under ICCAT 
and ATCA consistent with our management authority for HMS fisheries 
under the Magnuson-Stevens Act and the Consolidated HMS FMP.
    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.
    There were no direct public comments raising significant issues in 
response to the IRFA. However, three public comments were received 
regarding the potential for increased regulatory discards by 
prohibiting the retention of silky sharks in the commercial pelagic 
longline fishery.
    NMFS calculated that this action would lead to a total estimated 
average annual increase in silky shark discards

[[Page 60636]]

of 60 sharks, by converting average annual landings into regulatory 
discards. NMFS estimated in the IRFA that vessels that land silky 
sharks would incur collective annual economic losses of $3,392 ($1,489 
for fins and $1,903 for meat) from having to discard these sharks. 
Logbook data indicate that under existing regulations, between 2006 and 
2010, 96 percent of silky sharks caught on pelagic longline gear 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 pelagic longline gear typically target tuna and swordfish, which 
are both higher valued species than sharks. Due to the high urea 
content of 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. The rule also affects the small group of vessels issued 
both an HMS Charter/Headboat permit and a commercial shark permit. A 
very small number of vessels have such a permit combination, however, 
and few instances of such tuna and silky shark catch are expected to 
arise. Thus, while one or two additional silky sharks might have to be 
released in the specified HMS Charter/Headboat and commercial shark 
permit combination, inclusion of this permit combination in the ICCAT 
fisheries subject to this rulemaking does not change the environmental 
or economic impacts described in the EA/RIR/IRFA prepared for the 
proposed action.
    One commenter questioned the silky shark fin price per pound and 
annual estimate of silky shark landings in the analysis for the 
proposed rule. See Comment 9 and the corresponding response above and 
in Section 12 of the EA/RIR/FRFA.
    No changes were made in the rule resulting from public comments in 
response to the IRFA.
    Section 604(a)(3) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
The Small Business Administration (SBA) has defined a ``small'' fishing 
entity as one with average annual receipts of less than $4.0 million; a 
small charter/party boat entity is one with average annual receipts of 
less than $6.5 million; a small wholesale dealer as one with 100 or 
fewer employees; and a small seafood processor as one with 500 or fewer 
employees. This action would apply primarily to all participants in the 
Atlantic HMS commercial fisheries that have pelagic longline gear 
onboard, permitted shark dealers, and a small number of vessels 
(currently five) that are issued both an HMS Charter/Headboat permit 
and a commercial shark permit, when tuna, swordfish or billfish are on 
board the vessel. These vessels and dealers are all considered small 
fishing entities under the SBA definition. However, Charter/Headboat 
vessels generally do not target or land silky sharks when they have 
tunas or tuna-like species on board. As of October 2011, 242 pelagic 
longline vessels held an Atlantic Tunas Longline permit, and 117 
dealers held an Atlantic shark dealer permit. Including the vessels 
issued both HMS Charter/Headboat permits and commercial shark permits 
in the prohibition against silky shark retention does not affect this 
number because those vessels do not use longline gear.
    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)(5) of the RFA, agencies are required to 
describe any alternatives to the rule which accomplish the stated 
objectives and which minimize any significant economic impacts. These 
impacts are discussed below and in Chapters 4 and 6 of the EA/RIR/FRFA. 
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 final 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 a FRFA to analyze the impacts on small entities of 
the alternatives for implementing the ICCAT Recommendation 11-08 for 
all domestic fishing categories that target tuna and tuna-like species. 
Specifically, the FRFA assesses the impacts of the various alternatives 
on pelagic longline vessels, which are the only vessels that 
participate in the Atlantic HMS commercial fishery 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 
commercial ICCAT fisheries); and Alternative 3 (implementing ICCAT 
Recommendation 11-08 and additional prohibitions against storing, 
selling, and purchasing of silky sharks in the commercial ICCAT 
fisheries).
    Under the No Action Alternative, Alternative 1, there would be no 
economic impacts to HMS pelagic longline vessels fishing for tuna and 
tuna-like species. Under this alternative, 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 
per year. 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. 
Alternative 1 would not implement ICCAT Recommendation 11-08 and, 
therefore, is inconsistent with NMFS' obligations to promulgate 
regulations, as necessary and appropriate, to implement ICCAT 
recommendations. Because of this inconsistency, Alternative 1 is not a 
preferred alternative.
    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

[[Page 60637]]

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). Alternative 
2 is limited in scope to 2011 ICCAT Recommendation 11-08 and 
establishes fewer prohibitions than Alternative 3 described below. For 
purposes of enforcement, Alternative 2 could be less effective than 
Alternative 3. Therefore, Alternative 2 is not a preferred alternative.
    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 facilitate domestic compliance and enforcement. 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). NMFS 
prefers Alternative 3, 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 
facilitate compliance and enforcement. Additionally, Alternative 3 
would be unlikely to change fishing practices or effort.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group 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 the 
compliance guide are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 635

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


    Dated: September 27, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the Functions and 
Duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For reasons set out in the preamble, 50 CFR part 635 is 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)(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.
* * * * *

0
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 or on vessels issued both 
an 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
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 silky sharks, oceanic whitetip sharks or 
scalloped, smooth, or great hammerhead sharks from the owner of a 
fishing vessel issued both an 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
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. 2012-24429 Filed 10-3-12; 8:45 am]
BILLING CODE 3510-22-P