[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Proposed Rules]
[Pages 39017-39020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14081]



[[Page 39017]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 160328287-6486-01]
RIN 0648-BF94


Atlantic Highly Migratory Species (HMS); Porbeagle Shark 
Management Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to implement the International Commission 
for the Conservation of Atlantic Tunas (ICCAT) Recommendation 15-06 
regarding porbeagle sharks (Lamna nasus) caught in association with 
ICCAT fisheries. Recommendation 15-06 requires, among other things, 
fishing vessels to promptly release unharmed, to the extent 
practicable, porbeagle sharks caught in association with ICCAT 
fisheries when brought alive alongside for taking on board the vessel. 
This action would affect fishermen fishing in the commercial HMS 
pelagic longline fishery and the HMS recreational fisheries for tunas, 
swordfish, and billfish in the Atlantic Ocean, including the Caribbean 
Sea and Gulf of Mexico. This action would implement an ICCAT 
recommendation, consistent with the Atlantic Tunas Convention Act 
(ATCA), and would further domestic management objectives under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

DATES: Written comments must be received by July 15, 2016. An operator-
assisted public conference call and webinar will be held on July 5, 
2016, from 1:00 p.m. to 3:00 p.m., EST.

ADDRESSES: The conference call information is phone number 1 (888) 989-
4573; participant passcode 9905999. Participants are strongly 
encouraged to log/dial in fifteen minutes prior to the meeting. NMFS 
will show a brief presentation via webinar followed by public comment. 
To join the webinar go to: https://noaaevents2.webex.com/noaaevents2/onstage/g.php?MTID=e0db6c21990ed890e2857b1eb1746cd71, event password: 
NOAA, event number: 990 192 262. Participants that have not used WebEx 
before will be prompted to download and run a plug-in program that will 
enable them to view the webinar.
    You may submit comments on this document, identified by NOAA-NMFS-
2016-0066, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0066, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Margo Schulze-Haugen, 
Chief, Atlantic HMS Management Division at 1315 East-West Highway, 
Silver Spring, MD 20910.
    Instructions: 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 by NMFS. 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.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Larry Redd, Carrie Soltanoff, or Karyl 
Brewster-Geisz by phone at 301-427-8503.

SUPPLEMENTARY INFORMATION: Atlantic HMS are managed under the 2006 
Consolidated HMS Fishery Management Plan (FMP). Implementing 
regulations at 50 CFR part 635 are issued under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq., and Atlantic Tunas Convention Act 
(ATCA), 16 U.S.C. 927 et seq. ATCA requires the Secretary of Commerce 
(Secretary) to promulgate regulations as may be necessary and 
appropriate to implement ICCAT recommendations.
    At its 24th Annual Meeting in 2015, ICCAT adopted Recommendation 
15-06 on ``Porbeagle [Sharks] Caught in Association with ICCAT 
Fisheries.'' Recommendation 15-06 requires, among other things, fishing 
vessels ``. . . to promptly release unharmed, to the extent 
practicable, porbeagle sharks caught in association with ICCAT 
fisheries when brought alive alongside for taking on board the 
vessel.'' Recommendation 15-06 notes that, according to the ICCAT 
Standing Committee for Research and Statistics (SCRS), biomass of 
northwest Atlantic and northeast Atlantic porbeagle sharks is depleted 
to well below the biomass at maximum sustainable yield, but recent 
fishing mortality is below the fishing mortality at maximum sustainable 
yield (i.e., the stocks are overfished but overfishing is not 
occurring). Recommendation 15-06 further notes that the 2008 and 2012 
Ecological Risk Assessments concluded that porbeagle shark was among 
the most vulnerable of shark species, which, even at low fishing 
mortality levels, makes it more susceptible to overfishing. Thus, 
Recommendation 15-06 was adopted by ICCAT to reduce fishing mortality 
of porbeagle sharks caught in association with ICCAT fisheries in order 
to reduce porbeagle shark fishing even further, and thus assist in 
rebuilding stocks which are currently overfished.
    In this proposed rule, NMFS considers changes to the regulations at 
50 CFR part 635 consistent with Recommendation 15-06. Specifically, 
NMFS is proposing regulatory changes that would require fishermen to 
release unharmed, to the extent practicable, any live porbeagle sharks 
that are caught in association with ICCAT fisheries, including 
commercial fishermen that use pelagic longline gear or recreational 
fishermen that hold an HMS recreational permit and retain tunas, 
swordfish, or billfish. The proposed regulations would not affect HMS 
recreational fishermen who retain sharks and do not retain tunas, 
swordfish, or billfish, since such fishing would not be ``in 
association with'' fishing for tuna and tuna-like species.
    Currently, very few porbeagle sharks are kept annually by 
commercial and recreational HMS fishermen, as shown by analysis of data 
collected from 2010 through 2015. HMS pelagic longline fishery logbook 
data indicate that 3 to 23 porbeagle sharks were retained annually from 
2010 through 2012 and no porbeagle sharks were retained from 2013 
through 2015. According to HMS logbook data, of the porbeagle sharks 
that were caught, on average 554 porbeagle sharks were released alive 
each year (approximately 74 percent of those caught) and 193 were 
released dead each year (approximately 26 percent of those caught). 
Pelagic Observer Program (POP) data from 2010 through 2015 show similar 
trends. Specifically, POP data indicate that no porbeagle sharks were 
kept from 2010 through 2014 and one porbeagle shark was kept in 2015 
(likely misidentified as a shortfin mako by the vessel owner). Of those 
observed caught, on average 66

[[Page 39018]]

porbeagle sharks were released alive each year (approximately 63 
percent of those caught) and 36 were discarded dead per year 
(approximately 34 percent of those caught). Thus, according to HMS 
logbook and POP data, approximately 97 percent of porbeagle sharks were 
released (alive and dead) from 2010-2015.
    Based on recreational data collected from the Large Pelagics Survey 
(LPS), which covers federal and state waters from Virginia to Maine, 
from 2010 through 2015, NMFS estimates that on average 86 porbeagle 
sharks were kept annually and 746 were released alive, for an average 
annual release of approximately 90 percent. LPS data indicate that no 
porbeagle sharks were discarded dead between 2010 and 2015. Specific to 
HMS Charter/Headboat vessels, NMFS estimates that on average 15 
porbeagle sharks were kept annually and 146 were released, for an 
average annual release of approximately 91 percent. It is unknown 
whether the porbeagle sharks that were kept were dead or alive when 
brought to the vessel.
    Under current regulations, commercial and recreational HMS 
fishermen that operate in ICCAT fisheries are authorized to retain any 
porbeagle shark, regardless of whether the shark is dead or alive at 
haulback. Even so, most fishermen keep very few porbeagle sharks and 90 
percent or more of porbeagle sharks are released. Under the proposed 
rule, all live porbeagle sharks would have to be released by commercial 
and recreational HMS fishermen operating in ICCAT fisheries, as 
determined by the permits they hold or, in the case of recreational 
fisheries, whether they have also retained tuna-like species on a given 
trip. Because so few porbeagle sharks are kept now, NMFS expects that 
this proposed rule would have little ecological impact. If there are 
any ecological impacts, those impacts would be beneficial, and would 
only apply to those few sharks that otherwise would have been retained 
rather than released alive (approximately 23 sharks kept in the 
commercial pelagic longline fishery before 2013 and the approximately 
86 sharks kept annually in HMS recreational fisheries). Additionally, 
among the approximately 86 porbeagle sharks retained annually in HMS 
recreational fisheries, those ecological benefits would apply only when 
fishermen were also retaining tunas, swordfish, or billfish; if the 
porbeagle sharks were caught by fishermen not retaining tunas, 
swordfish, or billfish, porbeagle sharks could still be retained under 
this proposed rule. Similarly, under the proposed rule, these few 
porbeagle sharks may still be retained by all fishermen if the sharks 
are dead when brought to the vessel. Furthermore, because the 
commercial and recreational data indicate that fishermen already 
release 90 to 97 percent of porbeagle sharks, it is unlikely that a 
requirement to release live sharks would result in social or economic 
impacts on fishermen fishing in association with ICCAT fisheries. 
Therefore, this action is expected to have neutral socioeconomic 
impacts.

Request for Comments

    NMFS is requesting comments on this proposed rule which would 
require commercial and recreational HMS fishing vessels fishing in 
ICCAT fisheries to release unharmed, to the extent practicable, 
porbeagle sharks that are alive when brought alongside a vessel. 
Comments on this proposed rule may be submitted via http://www.regulations.gov, or by mail. Written comments must be received by 
July 15, 2016. Please see the ADRRESSES section for more information 
about submitting comments.

Public Conference Call and Webinar

    NMFS is requesting comments on the measures and analyses described 
in this proposed rule. During the comment period, NMFS will hold one 
conference call and webinar for this proposed rule. The conference call 
and webinar will be held on July 5, 2016, from 1:00-3:00 p.m. EST. 
Please see the DATES and ADDRESSES headings for more information. The 
public is reminded that NMFS expects participants on phone conferences 
to conduct themselves appropriately. At the beginning of the conference 
call, a representative of NMFS will explain the ground rules (e.g., all 
comments are to be directed to the agency on the proposed action; 
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; attendees may not interrupt one another; etc.). NMFS 
representative(s) will 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 those that do not may be 
removed from the conference call.
    Public hearings on this proposed rule are not currently scheduled. 
If you would like to request a public hearing, please contact Larry 
Redd, Carrie Soltanoff, or Karyl Brewster-Geisz by phone at 301-427-
8503.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, the Magnuson-Stevens Act, ATCA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    NMFS has made a preliminary determination that this action 
qualifies to be categorically excluded from the requirement to prepare 
an environmental assessment in accordance with NMFS' Environmental 
Review Procedures for Implementing the National Environmental Policy 
Act (NOAA Administrative Order 216-6), subject to further consideration 
after public comment. Section 6.03a.3.(b)(1) of the Administrative 
Order specifies that an action may be categorically excluded from 
further NEPA analysis where, ``the action is an amendment or change to 
a previously analyzed and approved action and the proposed change has 
no effect individually or cumulatively on the human environment. . . 
.'' In Amendment 2 to the 2006 Consolidated HMS FMP, NMFS adopted a 
rebuilding plan and TAC for porbeagle sharks, which were overfished but 
without overfishing occurring. Through the amendment, a commercial 
quota of 1.7 mt dw was established, and NMFS estimated that commercial 
discards would be approximately 9.5 mt dw, and recreational catch, 
including landings in tournaments, would be approximately 0.1 mt dw per 
year. The overall TAC of 11.3 mt dw was adopted to increase the 
likelihood that fishing mortality would remain low, allowing the stock 
to rebuild within 100 years as set out in a rebuilding plan in the 
Final Environmental Impact Statement. The final rule acknowledged that 
while some bycatch of porbeagle sharks would continue, the majority of 
porbeagle sharks caught are discarded alive. This action implementing 
ICCAT Recommendation 15-06 only slightly modifies the fishing practices 
analyzed in an extensive Environmental Impact Statement for Amendment 2 
to require the release of sharks, all but a handful of which are 
already being released under the management measures previously adopted 
and analyzed. Thus, this action is properly considered a minor change 
to a previously-analyzed and approved action (Amendment 2 to the 2006 
Consolidated HMS FMP; 73 FR 40658; July 15, 2008), and one which is 
expected to have no effect individually

[[Page 39019]]

or cumulatively on the human environment.
    NMFS determined that this proposed rule, if adopted, would not 
affect the coastal zone of any state, and a negative determination 
pursuant to 15 CFR 930.35 is not required. Therefore, pursuant to 15 
CFR 930.33(a)(2), coordination with appropriate state agencies under 
section 307 of the CZMA is not required. Since 90 to 97 percent of 
porbeagle sharks in the U.S. HMS fisheries currently are released, this 
rule, if adopted, is not expected to result in ecological, social, or 
economic impacts beyond the few additional sharks that will be released 
alive as a result. Given the high vulnerability of the species at low 
fishing mortality, this proposed rule would assist in the overall 
reduction of fishing mortality for porbeagle sharks in the Northwest 
Atlantic. Although interactions between U.S. fleets and porbeagle 
sharks are minor, because the ICCAT measure was adopted by multiple 
parties, U.S. compliance in addition to compliance by other nations 
would provide long-term benefits for the Atlantic-wide porbeagle stock.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule to implement ICCAT 
Recommendation 15-06 on porbeagle sharks, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
under section 605(b) of the Regulatory Flexibility Act (RFA).
    As discussed above, this proposed rule is necessary to implement 
ICCAT recommendations, as required by ATCA, and to achieve domestic 
management objectives under the Magnuson-Stevens Act. Under ATCA, the 
Secretary shall promulgate such regulations as may be necessary and 
appropriate to carry out ICCAT recommendations. The proposed action 
considers implementing ICCAT Recommendation 15-06 on porbeagle sharks, 
in the Atlantic HMS fisheries that target tuna and tuna-like species 
because the National Marine Fisheries Service (NMFS) considers these 
fisheries to be ``ICCAT-managed fisheries.''
    ICCAT Recommendation 15-06 requires, among other things, fishing 
vessels ``. . . to promptly release unharmed, to the extent 
practicable, porbeagle sharks caught in association with ICCAT 
fisheries when brought alive alongside for taking on board the 
vessel.'' The regulatory changes would affect HMS vessels that catch 
sharks in ICCAT fisheries on commercial vessels that deploy pelagic 
longline gear and HMS Angling and Charter/Headboat (CHB) vessels that 
retain tunas, swordfish, or billfish. The proposed regulations would 
not affect HMS-permitted fishermen who do not retain tunas, swordfish, 
or billfish.
    NMFS has estimated that, as of October 2015, 280 vessels were 
issued an Atlantic Tunas Longline permit and can be reasonably assumed 
to use pelagic longline gear, and could be affected by this action. Of 
the 3,596 vessels that were issued an Atlantic HMS CHB permit only 
those vessels that retain porbeagle sharks at the same time as tunas, 
swordfish, or billfish would be affected by this action. Between 2010 
and 2015, fewer than one percent of CHB vessels issued permits retained 
porbeagle sharks; NMFS does not know how many of those that retained 
porbeagle sharks also retained tunas, swordfish, or billfish during the 
same trip. As such, NMFS estimates that, at most, fewer than one 
percent of all CHB vessels would be affected by this action. Those 
Atlantic HMS CHB vessels that do not retain porbeagle sharks or that do 
not retain tunas, swordfish, or billfish would not be affected by this 
action. Most commercial pelagic longline and Atlantic HMS CHB vessels 
have not historically interacted with porbeagle sharks as detailed 
below.
    For the purpose of this analysis, all fishermen affected by this 
rule are considered small entities based on the historical levels of 
revenue earned by these fishing vessels. HMS pelagic longline fishery 
logbook data indicate that 3 to 23 porbeagle sharks were retained 
annually by four vessels from 2010 through 2012 and no porbeagle sharks 
were retained from 2013 through 2015. From 2010 through 2015, vessels 
made an average of 1,386 trips per year. Only 18 of those trips on 
average interacted with porbeagle sharks (approximately 1 percent of 
all trips). According to HMS logbook data, of the porbeagle sharks that 
were caught, on average 554 were released alive each year 
(approximately 74 percent of those caught) and 193 were released dead 
each year (approximately 26 percent of those caught). Pelagic Observer 
Program (POP) data from 2010 through 2015 show similar trends. 
Specifically, POP data indicate that no porbeagle sharks were kept from 
2010 through 2014 and one porbeagle shark was kept in 2015. NMFS 
believes that this one porbeagle shark reported by the observer was 
likely misidentified as a shortfin mako by the vessel owner. Of those 
observed caught, on average 66 porbeagle sharks were released alive 
each year (approximately 63 percent of those caught) and 36 were 
discarded dead per year (approximately 34 percent of those caught). 
Thus, according to HMS logbook and Pelagic Observer Program data, 
approximately 97 percent of porbeagle sharks were released (alive and 
dead) from 2010-2015.
    Based on recreational data collected from the Large Pelagics Survey 
(LPS), which covers federal and state waters from Virginia to Maine, 
from 2010 through 2015, NMFS estimates that on average 86 porbeagle 
sharks were kept annually and 746 were released alive by Atlantic HMS 
recreational vessels, for an average annual release of approximately 90 
percent. LPS data indicate that no porbeagle sharks were discarded dead 
between 2010 and 2015. Specific to CHB vessels, NMFS estimates that on 
average approximately 15 porbeagle sharks were kept annually and 146 
were released, for an average annual release of approximately 91 
percent. It is unknown whether the porbeagle sharks that were kept were 
dead or alive when brought to the vessel.
    HMS dealer data indicate that total ex-vessel revenues from 
porbeagle sharks caught on pelagic longline gear ranged from 
approximately $560 per year to $4,040 per year from 2010 through 2012. 
From 2013 through 2015, no porbeagle sharks were kept and no resulting 
revenue was earned. Thus, this action would likely not result in 
significant operational changes or adverse socioeconomic impacts on 
commercial HMS fishermen. This proposed rule is intended to ensure U.S. 
compliance with ICCAT Recommendation 15-06 and would continue to be 
consistent with the objectives of the 2006 Consolidated Atlantic HMS 
FMP and its amendments, as well as other requirements. Because this 
proposed rule, if implemented, would not have a significant economic 
impact on a substantial number of small entities, an initial regulatory 
flexibility analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 635

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

    Dated: June 9, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

[[Page 39020]]

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, add paragraph (c)(1)(iii) to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (c) * * *
    (1) * * *
    (iii) Has pelagic longline gear on board, persons aboard that 
vessel are required to release unharmed, to the extent practicable, 
porbeagle sharks that are alive at the time of haulback.
* * * * *
0
3. In Sec.  635.22, add paragraph (a)(3) to read as follows:


Sec.  635.22  Recreational retention limits.

    (a) * * *
    (3) Vessels issued an HMS General Category permit under Sec.  
635.4(d) that are participating in an 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) are 
required to release unharmed, to the extent practicable, porbeagle 
sharks that are alive at the time of haulback if swordfish, tuna, or 
billfish are retained or possessed on board, or offloaded from, the 
vessel during that trip.
* * * * *
0
4. In Sec.  635.24, add paragraph (a)(10) to read as follows:


Sec.  635.24  Commercial retention limits for sharks, swordfish, and 
BAYS tunas.

* * * * *
    (a) * * *
    (10) Notwithstanding other provisions in this paragraph (a), 
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, are required to release unharmed, to the extent practicable, 
porbeagle sharks that are alive at the time of haulback.
* * * * *
0
5. In Sec.  635.71, add paragraph (d)(20) to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (20) Retain, possess, or land porbeagle sharks that were alive at 
the time of haulback as specified in Sec. Sec.  635.21(c)(1)(iii), 
635.22(a)(3), and 635.24(a)(10).
* * * * *
[FR Doc. 2016-14081 Filed 6-14-16; 8:45 am]
 BILLING CODE 3510-22-P