[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Rules and Regulations]
[Pages 57803-57806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20157]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 160328287-6745-02]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements 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 affects fishermen fishing in the commercial highly 
migratory species (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 implements an ICCAT recommendation, consistent with the Atlantic 
Tunas Convention Act (ATCA), and will further domestic management 
objectives under the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Effective on September 23, 2016.

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

SUPPLEMENTARY INFORMATION:

Background

    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 the 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. On June 15, 2016 (81 
FR 39017), NMFS published a proposed rule to consider changes to the 
regulations at 50 CFR part 635 consistent with Recommendation 15-06. 
The proposed rule contains details that are not repeated here. The 
comment period on the proposed rule ended on July 15, 2016.
    Domestically, porbeagle sharks are managed pursuant to a rebuilding 
plan established in Amendment 2 to the 2006 Consolidated HMS FMP (73 FR 
35788, June 24, 2008 as corrected at 73 FR 40658, July 15, 2008). Under 
current regulations, commercial and

[[Page 57804]]

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. In this final rule, NMFS requires, 
to the extent practicable, all live porbeagle sharks 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.

Response to Comments

    During the proposed rule stage, NMFS received 28 written comments. 
The comments received on the proposed rule during the public comment 
period can be found at http://www.regulations.gov/ by searching for 
NOAA-NMFS-2016-0066. A summary of the relevant comments on the proposed 
rule are shown below with NMFS' response.
    Comment 1: NMFS received comments both in support of, and opposed 
to, implementing the ICCAT recommendation. Commenters who supported 
this action stated that the proposed rule was necessary to be 
consistent with the recommendation adopted by ICCAT. Commenters 
opposing the proposed rule stated that the porbeagle population in 
waters off the northeast United States was abundant.
    Response: NMFS agrees that this action is consistent with the ICCAT 
recommendation. Regarding the status of porbeagle sharks, as described 
in the proposed rule, according to the most recent stock assessment in 
2009, which was a joint stock assessment between ICCAT and the 
International Council for the Exploration of the Sea (ICES), the 
Northwest Atlantic porbeagle shark stock is depleted well below the 
biomass at maximum sustainable yield, and recent fishing mortality is 
below the fishing mortality at maximum sustainable yield. Based on 
these results, porbeagle sharks are considered to be overfished with no 
overfishing occurring both domestically and internationally. As cited 
in Recommendation 15-06, porbeagle sharks are among the most vulnerable 
shark species, which means that even at low fishing mortality levels, 
the species is more susceptible to overfishing than other less 
vulnerable shark species. ICCAT has provisionally scheduled the next 
porbeagle shark stock assessment for 2019. More information regarding 
the 2009 stock assessment can be found at http://www.iccat.int/Documents/SCRS/DetRep/DET-POR.pdf.
    Comment 2: Some commenters noted the need for complete prohibition 
of porbeagle sharks caught in association with non-ICCAT fisheries 
given the overfished status of the stock.
    Response: This comment is outside the scope of this rulemaking 
because the purpose of this rulemaking only pertains to implementing 
ICCAT Recommendation 15-06, consistent with ATCA. ICCAT Recommendation 
15-06 pertains to the live release of porbeagle sharks caught in 
association with ICCAT fisheries and does not address possession of the 
species in non-ICCAT fisheries. Domestically, porbeagle sharks are 
managed pursuant to a rebuilding plan established in 2008 in Amendment 
2 to the 2006 Consolidated HMS FMP, consistent with the requirements of 
the Magnuson-Stevens Act.
    Comment 3: NMFS received comments stating that NMFS should issue 
its 12-month finding regarding listing porbeagle sharks under the 
Endangered Species Act (ESA).
    Response: This comment is outside the scope of this rulemaking 
because the purpose of this rulemaking is to implement ICCAT 
Recommendation 15-06. The 12-month finding regarding listing porbeagle 
sharks under the ESA very recently published on August 1, 2016 (81 FR 
50463). Any further information regarding the 12-month finding and any 
subsequent related agency action can be found at 
www.federalregister.gov/.
    Comment 4: NMFS received a comment stating that current low 
interactions between recreational fishermen and porbeagle sharks, in 
combination with high release rates of the species, does not warrant 
additional regulations for the recreational fishery.
    Response: Under the authority of ATCA and the Magnuson-Stevens Act, 
NMFS is obligated to promulgate such regulations as may be necessary 
and appropriate to carry out ICCAT recommendations. Additionally, as 
stated above, porbeagle sharks are overfished without overfishing 
occurring. ICCAT Recommendation 15-06 was designed in part to aid in 
rebuilding this vulnerable shark species. NMFS acknowledges that 
recreational fishermen interact with few porbeagle sharks and that most 
fishermen who catch porbeagle sharks release the majority of those 
sharks alive. Furthermore, the measures in this rulemaking only apply 
to recreational fishermen that catch porbeagle sharks while also 
retaining swordfish, billfish, or tuna. This rulemaking does not apply 
to recreational fishermen that catch porbeagle sharks and do not retain 
swordfish, billfish, or tuna. As such, this regulation, which requires 
the live release of porbeagle sharks caught in association with ICCAT 
fisheries, should have few overall impacts on the recreational fishery.
    Comment 5: NMFS received public comments regarding handling and 
release practices of porbeagle sharks. The commenters highlighted that 
the proposed changes could result in anglers switching to fishing 
practices that would ensure porbeagle sharks are dead at haulback in 
order to allow for retention of any porbeagle shark caught. Other 
commenters were concerned that the data indicating high release rates 
of porbeagle sharks in commercial and recreational fisheries were 
inaccurate because the data were self-reported and did not consider 
post-release mortality rates of porbeagle sharks.
    Response: As described in the proposed rule, HMS logbook and 
pelagic observer program data indicate that approximately 97 percent of 
porbeagle sharks were released (alive and dead) from 2010-2015. 
Additionally, recreational data indicate approximately 90 percent of 
porbeagle sharks were released from 2010-2015. These data, which are a 
mix of self-reported and observer data are the best scientific data 
available and indicate that most porbeagle sharks have not been 
retained. While the data do not indicate how many sharks released alive 
would subsequently die as a result of being caught, the ICCAT 
Recommendation will increase the numbers of porbeagle sharks released 
alive and thereby likely increase the survival of those sharks and aid 
in rebuilding.
    Regarding handling and release practices, U.S. fishermen who 
interact with porbeagle sharks have historically followed safe handling 
and release practices. This regulation requires U.S. fishermen to 
release live porbeagle sharks in a manner that is largely consistent 
with the safe handling and release practices that most fishermen 
employ. NMFS believes and expects that fishermen will continue to 
follow these safe handling and release practices after implementation 
of the ICCAT Recommendation 15-06. NMFS will continue to monitor 
potential violations of Atlantic HMS regulations to ensure that both 
commercial and recreational fishermen maintain proper catch and release 
practices.
    Comment 6: Several commenters expressed concern that implementing 
ICCAT Recommendation 15-06 would result in a complete closure of the 
recreational porbeagle shark fishery.

[[Page 57805]]

    Response: This final rule will not result in the closure of the 
recreational porbeagle shark fishery. As described in the proposed 
rule, implementation of ICCAT Recommendation 15-06 would impact HMS 
recreational fishermen who retain porbeagle sharks while also retaining 
swordfish, billfish, or tuna. Under these circumstances, recreational 
fishermen would have to either discard live porbeagle sharks or the 
swordfish, billfish, or tuna. If a porbeagle shark were caught that was 
dead at the time of haulback, a recreational HMS fisherman with 
swordfish, billfish, or tuna onboard could retain the porbeagle, 
consistent with all other regulations such as the retention and size 
limits. Similarly, if a recreational HMS fisherman did not have 
swordfish, billfish, or tuna onboard, and was not intending to retain 
any swordfish, billfish, or tunas, that fisherman could retain any 
porbeagle shark that met the retention and size limits, regardless of 
the disposition of the shark.

Changes From the Proposed Rule

    NMFS made one change to the proposed regulations. At Sec.  635.22 
(a)(3), NMFS has added text specifying that the permit holders subject 
to the applicable requirements of this rulemaking include fishermen who 
hold a Swordfish General Commercial permit when they are participating 
in an HMS registered tournament. The proposed rule clearly stated that 
recreational fishing for porbeagle sharks would be affected when 
swordfish, tuna, or billfish are retained or possessed on board, or 
offloaded from, the vessel on a trip. We inadvertently did not list the 
Swordfish General Commercial permit, even though participation in an 
HMS registered recreational tournament with such a permit is clearly 
recreational fishing, and such permit holders had notice of the 
proposed rule's effect on recreational fishing both through the Federal 
Register Notice and through NMFS outreach, including NMFS' HMS-specific 
email listserv and NMFS' general email listserv.
    It is generally understood that the Swordfish General Commercial 
permit is similar to the HMS General Category commercial permit in that 
the permit is considered recreational when the vessel owner or operator 
is using that vessel in an HMS registered tournament and landings of 
HMS are allowed, consistent with the regulations. While the regulatory 
language in the proposed rule did not specifically include this 
category of permit when listing the permit titles, the rule did 
repeatedly refer to recreational fisheries, and permit holders could 
reasonably have anticipated that the prohibition would apply to them 
given the rule's overall context and content and thus had sufficient 
notice. The underlying NEPA analysis associated with this rulemaking is 
not affected by this correction. These fishermen are considered 
recreational when fishing during a registered HMS tournament, and all 
such fishing in tournaments was within the scope of what was analyzed; 
any harvest of porbeagle sharks by these fishermen was analyzed at the 
proposed rule stage as recreational data. The Regulatory Flexibility 
Act (RFA) certification is similarly unaffected by this correction. It 
was based on the recreational information about porbeagle sharks 
received through the Large Pelagics Survey, which does not distinguish 
among permit types. Therefore, any recreational harvest of porbeagle 
sharks by Swordfish General Category permit holders was considered at 
the proposed rule stage. Furthermore, recreationally-caught porbeagle 
sharks cannot be sold, limiting the effects analyzed under the RFA.

Classification

    The NMFS Assistant Administrator has determined that the final rule 
is consistent with the 2006 Consolidated HMS FMP and its amendments, 
the Magnuson-Stevens Act, ATCA, and other applicable law.
    This final action has been determined to be not significant for the 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    On December 29, 2015, NMFS issued a final rule establishing a small 
business size standard of $11 million in annual gross receipts for all 
businesses primarily engaged in the commercial fishing industry (NAICS 
11411) for Regulatory Flexibility Act (RFA) compliance purposes only 
(80 FR 81194, December 29, 2015). The $11 million standard became 
effective on July 1, 2016, and is to be used in place of the U.S. Small 
Business Administration's (SBA) current standards of $20.5 million, 
$5.5 million, and $7.5 million for the finfish (NAICS 114111), 
shellfish (NAICS 114112), and other marine fishing (NAICS 114119) 
sectors of the U.S. commercial fishing industry in all NMFS rules 
subject to the RFA after July 1, 2016. Id. at 81194.
    Pursuant to the Regulatory Flexibility Act, and prior to July 1, 
2016, a certification was developed for this regulatory action using 
SBA's former size standards. NMFS has reviewed the analyses prepared 
for this regulatory action in light of the new size standard. All of 
the entities directly regulated by this regulatory action are 
commercial finfish fishing businesses. The new standard could result in 
fewer commercial finfish businesses being considered small. However, 
NMFS has determined that the new size standard does not affect its 
decision to certify this regulatory action. NMFS considers all HMS 
longline permit holders to be small entities because these vessels have 
reported annual gross receipts of less than $11 million for commercial 
fishing. The average annual gross revenue per active pelagic longline 
vessel was estimated to be $187,000 based on the 170 active vessels 
between 2006 and 2012 that produced an estimated $31.8 million in 
revenue annually. The maximum annual revenue for any pelagic longline 
vessel between 2006 and 2015 was $1.9 million, well below the NMFS 
small business size threshold of $11 million in gross receipts for 
commercial fishing. Therefore, NMFS considers all Atlantic Tunas 
Longline category permit holders to be small entities. Since the annual 
revenue for Atlantic Tunas Longline category permit holders is well 
below both the former and new SBA size standard, there continues to be 
no significant economic impact on a substantial number of small 
entities.

List of Subjects in 50 CFR Part 635

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

    Dated: August 18, 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 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.


[[Page 57806]]



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 Swordfish General commercial permit under Sec.  
635.4(f) 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. 2016-20157 Filed 8-23-16; 8:45 am]
 BILLING CODE 3510-22-P