[Federal Register Volume 82, Number 63 (Tuesday, April 4, 2017)]
[Rules and Regulations]
[Pages 16478-16508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06591]



[[Page 16477]]

Vol. 82

Tuesday,

No. 63

April 4, 2017

Part II





 Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 902

50 CFR Part 635





 Atlantic Highly Migratory Species; Atlantic Shark Management Measures; 
Final Amendment 5b; Final Rule

  Federal Register / Vol. 82 , No. 63 / Tuesday, April 4, 2017 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 635

[Docket No. 130417378-7331-02]
RIN 0648-BD22


Atlantic Highly Migratory Species; Atlantic Shark Management 
Measures; Final Amendment 5b

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

ACTION: Final rule.

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SUMMARY: NMFS is amending the 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP) based on the 
results of the 2016 stock assessment update for Atlantic dusky sharks. 
Based on this assessment, NMFS determined that the dusky shark stock 
remains overfished and is experiencing overfishing. Consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), NMFS is implementing management measures that will reduce 
fishing mortality on dusky sharks to end overfishing and rebuild the 
dusky shark population consistent with legal requirements. The final 
measures could affect HMS-permitted commercial and recreational 
fishermen who harvest sharks or whose fishing vessels interact with 
sharks in the Atlantic Ocean, including the Gulf of Mexico and 
Caribbean Sea.

DATES: This final rule is effective on June 5, 2017, except for the 
amendments to Sec.  635.4 (b), (c), and (j); Sec.  635.19 (d); Sec.  
635.21(d)(4), (f), and (k); Sec.  635.22 (c); Sec.  635.71 (d)(21), 
(d)(22), (d)(23), and (d)(26), which will be effective on January 1, 
2018.

ADDRESSES: Copies of the Final Amendment 5b to the 2006 Consolidated 
HMS FMP, including the Final Environmental Impact Statement (FEIS) 
containing a list of references used in this document, the dusky shark 
stock assessments, and other documents relevant to this rule are 
available from the HMS Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the HMS Management Division and by email 
to [email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Tobey Curtis at 978-281-9273 or Karyl 
Brewster-Geisz at 301-427-8503.

SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed 
primarily under the authority of the Magnuson-Stevens Act. The 
authority to issue regulations under the Magnuson-Stevens Act has been 
delegated from the Secretary to the Assistant Administrator for 
Fisheries, NOAA (AA). On May 28, 1999, NMFS published in the Federal 
Register (64 FR 29090) final regulations, effective July 1, 1999, 
implementing the FMP for Atlantic Tunas, Swordfish, and Sharks (1999 
FMP). On October 2, 2006, NMFS published in the Federal Register (71 FR 
58058) final regulations, effective November 1, 2006, implementing the 
2006 Consolidated HMS FMP, which consolidated the 1999 FMP management 
measures and other regulatory requirements, and details the management 
measures for Atlantic HMS fisheries, including the Atlantic shark 
fisheries. The 2006 Consolidated HMS FMP and its amendments are 
implemented by regulations at 50 CFR part 635.

Background

    A brief summary of the background of this final action is provided 
below. Complete details of what was proposed and the alternatives 
considered are described in Final Environmental Impact Statement (FEIS) 
for Amendment 5b to the 2006 Consolidated HMS FMP and the proposed rule 
for Amendment 5b (81 FR 71672, October 18, 2016). Those documents are 
referenced in this preamble and their full description of management 
and conservation measures considered are not repeated here. Additional 
information regarding Atlantic HMS management can be found in the FEIS 
for Amendment 5b to the 2006 Consolidated HMS FMP, the 2006 
Consolidated HMS FMP and its amendments, the annual HMS Stock 
Assessment and Fishery Evaluation (SAFE) Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/. The comments received on Draft Amendment 5b 
and the proposed rule and our responses to those comments are 
summarized below in the section labeled ``Response to Comments.''
    On October 7, 2011 (76 FR 62331), NMFS made the determination that 
dusky sharks continued to be overfished and were experiencing 
overfishing. Initially, NMFS proposed to implement management measures 
through Amendment 5 to the 2006 Atlantic Consolidated HMS FMP, however, 
NMFS received substantial public comment disputing the basis for the 
proposed Amendment 5 dusky shark measures and suggesting significantly 
different measures be analyzed within the range of alternatives. Thus, 
NMFS decided further analysis was necessary and that dusky shark 
measures would be considered in a separate FMP amendment, EIS, and 
proposed rule, labeled ``Amendment 5b.''
    NMFS prepared a Predraft for Amendment 5b in March 2014 that 
considered the feedback received on Draft Amendment 5. NMFS solicited 
additional public input and consulted with its Advisory Panel on the 
Predraft at the Spring 2014 Advisory Panel meeting. In response to two 
petitions from environmental groups regarding listing dusky sharks 
under the Endangered Species Act (ESA), NMFS simultaneously was 
conducting an ESA Status Review for the Northwest Atlantic population 
of dusky sharks which was completed in October 2014. That status review 
concluded that, based on the most recent stock assessment as well as 
abundance projections, updated analyses, and the potential threats and 
risks to population extinction, the dusky shark population in the 
Northwest Atlantic and Gulf of Mexico has a low risk of extinction 
currently and in the foreseeable future, and relative abundance 
generally appeared to be increasing across the examined time series. On 
December 16, 2014, NMFS announced a 12-month finding that determined 
that the Northwest Atlantic and Gulf of Mexico population of dusky 
sharks did not warrant listing under the ESA (79 FR 74954).
    In light of this updated information, including indications of 
abundance increases, NMFS prioritized an update of the SouthEast Data, 
Assessment and Review (SEDAR) 21 dusky shark stock assessment using 
data through 2015, to be completed in summer 2016. It was determined 
that further action on Amendment 5b should wait until after the 
completion of the 2016 assessment update to ensure that it was based on 
the best available scientific information.
    On October 27, 2015, the environmental advocacy organization Oceana 
filed a complaint against NMFS in Federal district court alleging 
violations of the Magnuson-Stevens Act and Administrative Procedure Act 
with respect to the timing of NMFS's action to rebuild and end 
overfishing of dusky sharks. A settlement agreement was reached in 
Oceana v. Pritzker (Case No. 1:15-cv-01824-CRC) (D.D.C.), between NMFS 
and the Plaintiffs on May 18,

[[Page 16479]]

2016, regarding the timing of the pending agency action. This 
settlement acknowledged that NMFS was in the process of developing an 
action to address overfishing and rebuild dusky sharks and that an 
assessment update was ongoing and stipulated that, based upon the 
results of the assessment update, NMFS would submit a proposed rule to 
the Federal Register no later than October 14, 2016, and a final rule 
by March 31, 2017.
    In August 2016, the update to the SEDAR 21 dusky shark stock 
assessment was completed, and on October 4, 2016 (81 FR 69043), NMFS 
made the stock status determination that dusky sharks are still 
overfished and still experiencing overfishing, although the level of 
overfishing is not high. Based on the 2016 assessment update, as well 
as the rationale summarized below and fully described in the preamble 
of the Proposed Rule (81 FR 71672, October 18, 2016) and in Section 1.2 
of the Amendment 5b FEIS (see ADDRESSES), NMFS determined that it needs 
to reduce dusky shark fishing mortality by approximately 35 percent 
relative to 2015 levels to rebuild the stock by the year 2107. 
According to the outcomes of five model runs, Spawning Stock Fecundity 
(SSF) relative to SSFMSY (proxy biomass target) ranged from 
0.41 to 0.64 (i.e., overfished) (median = 0.53). The fishing mortality 
rate (F) in 2015 relative to FMSY was estimated to be 1.08-
2.92 (median = 1.18) (values >1 indicate overfishing). The updated 
projections estimated that the target rebuilding years range from 2084-
2204, with a median of 2107. In order to achieve rebuilding by 2107 
with a 50% probability, the final models projected that F on the stock 
would have to be reduced 24-80% (median = 35%) from 2015 levels. While 
NMFS typically uses a 70-percent probability of rebuilding by the 
deadline for Atlantic highly migratory shark species, the 2016 update 
has a higher level of uncertainty than other shark assessments and 
presents a more pessimistic view of stock status than was expected 
based on review of all available information (as detailed in the 
proposed rule and Section 1.2 of the FEIS). Thus, for the purposes of 
this Amendment, management measures were developed that would achieve 
the mortality reductions associated with the median assessment model 
run and a 50-percent probability of rebuilding by the deadline (i.e., 
35-percent mortality reduction). A detailed discussion of the stock 
assessment can be found in the Amendment 5b FEIS (see ADDRESSES) and 
the final SEDAR 21 stock assessment update report, available on the 
SEDAR Web site (http://sedarweb.org/sedar-21).
    The proposed rule for Amendment 5b to the 2006 Consolidated HMS FMP 
and the Notice of Availability of the DEIS for Amendment 5b published 
in the Federal Register on October 18, 2016 (81 FR 71672) and October 
21, 2016 (81 FR 72803), respectively.
    Draft Amendment 5b included management measures that would reduce 
dusky shark mortality in the recreational shark, commercial pelagic 
longline, bottom longline, and shark gillnet fisheries. Draft Amendment 
5b also clarified annual catch limits (ACLs) and accountability 
measures (AMs) for the prohibited shark complex, including dusky 
sharks. Detailed descriptions of the proposed management measures and 
ACL and AM clarifications are available in the Amendment 5b DEIS and 
proposed rule. The public comment period ended on December 22, 2016.
    This final rule implements the measures preferred and analyzed in 
the FEIS for Amendment 5b to the 2006 Consolidated HMS FMP in order to 
end overfishing and rebuild dusky sharks. The FEIS analyzed the direct, 
indirect, and cumulative impacts on the quality of the human 
environment as a result of the preferred management measures. The FEIS, 
including the preferred management measures, was made available on 
February 24, 2017 (82 FR 11574). On March 28, 2017, the Assistant 
Administrator for NOAA signed a Record of Decision (ROD) adopting these 
measures as Final Amendment 5b to the 2006 Consolidated HMS FMP. A copy 
of the FEIS, including Final Amendment 5b to the 2006 Consolidated HMS 
FMP, is available from the HMS Management Division (see ADDRESSES). In 
brief, the final management measures implemented in this rule are: 
Shark endorsement and circle hook requirements in the recreational 
Atlantic shark fisheries; shark release protocols in the pelagic 
longline fishery; dusky shark identification and safe handling training 
in the HMS pelagic longline, bottom longline, and shark gillnet 
fisheries; outreach and fleet communication protocol in the HMS pelagic 
longline, bottom longline, and shark gillnet fisheries; and, a circle 
hook requirement in the directed shark bottom longline fishery. 
Additionally, Amendment 5b clarifies ACLs and AMs for the prohibited 
shark complex, including dusky sharks. As described in the Responses to 
Comments below, NMFS made several changes to the preferred alternatives 
between the proposed and final rule, based in part on public comments. 
The specific changes are described below in the section titled 
``Changes from the Proposed Rule.''

Response to Comments

    We received a total of 76 individual written comments on the 
proposed rule from fishermen, states, and other interested parties 
during the public comment period, including one comment from 
EarthJustice that included signatures from 19,716 individuals and 
another comment from Oceana that included signatures from 13,144 
individuals. We also received comments from fishermen, states, and 
other interested parties during six public hearings, five regional 
fishery management council meetings, one Atlantic States Marine 
Fisheries Commission meeting, and one HMS Advisory Panel meeting. All 
written comments can be found at http://www.regulations.gov/.
A. Miscellaneous Comments
    Comment 1: NMFS received a wide range of comments expressing 
general support for the proposed conservation and management measures. 
Commenters' support was based upon their concerns about the current 
status of the dusky shark stock and the need to end overfishing and 
conserve the species in combination with their understanding that the 
proposed measures would have minimal negative impacts on the 
recreational and commercial fisheries. Some commenters agreed that the 
measures would end overfishing and rebuild the stock within the 
rebuilding timeframe. Most commenters supported the establishment of a 
shark endorsement requirement for HMS permit holders fishing for sharks 
recreationally, and shark identification and regulations course for 
commercial permit holders (HMS pelagic longline, bottom longline, and 
shark gillnet) as a requirement to target, land, and retain sharks in 
Federal waters. Many commenters generally supported requiring the use 
of circle hooks in the recreational and bottom longline fisheries 
although there were many comments requesting modifications to the 
wording and implementation of the alternatives, as discussed in more 
detailed comment responses below.
    Commercial fishermen and other groups expressed general support for 
the commercial alternatives, including the establishment of a dusky 
shark avoidance and relocation protocol, requiring the use of dehookers 
or cutting the line within three feet of the shark to release them, and 
adding a shark

[[Page 16480]]

identification section to the protected species and safe handling 
workshop required of commercial fishermen. The Environmental Protection 
Agency (EPA) rated the DEIS as ``lack of objections,'' per its EIS 
rating criteria, and noted its support for the overall efforts by NMFS 
to further protect dusky sharks.
    Response: As detailed in Chapter 4's environmental effects 
analyses, NMFS agrees that the Amendment 5b measures will reduce 
fishing mortality below the level needed to end overfishing and rebuild 
the dusky shark stock consistent with the SEDAR 21 dusky shark stock 
assessment update and the Magnuson-Stevens Act, while minimizing 
effects on the commercial and recreational fisheries.
    Comment 2: Some commenters stated that additional regulations to 
protect dusky sharks were not warranted as their retention is already 
prohibited. These commenters felt NMFS should instead focus on the 
enforcement of existing regulations prohibiting the harvest of dusky 
sharks, and that additional regulations on the fishery would result in 
reduced compliance. The State of Mississippi opposed the measures to 
protect dusky sharks because it felt the measures could interfere with 
the fisheries for other, healthy stocks of sharks.
    Response: Although a prohibition on retention at times provides 
adequate protection for species that are experiencing overfishing, the 
latest dusky shark stock assessment update shows that dusky sharks are 
still experiencing overfishing despite their prohibited status. A 
detailed description of the dusky shark stock assessment update results 
is available in Chapter 1 of the FEIS. Because dusky sharks are still 
overfished and experiencing overfishing, the Magnuson-Stevens Act 
requires NMFS to implement management measures to stop overfishing and 
rebuild the stock.
    Comment 3: Commenters stated that additional management measures to 
conserve dusky sharks should be implemented in all fisheries that 
interact with dusky sharks, and not just the HMS fisheries that do so. 
Fisheries not covered under Amendment 5b that were identified by 
various commenters as interacting with dusky sharks included state 
water recreational and commercial fisheries, the Gulf of Mexico reef 
fish bottom longline fishery, the South Atlantic snapper-grouper bottom 
longline fishery, and the South Atlantic dolphin/wahoo fishery.
    Response: Based on the best scientific information available, the 
majority of dusky shark interactions occur in commercial and 
recreational HMS fisheries, as described in Section 1.2 of the FEIS. 
Specifically, the available observer data for the Southeast dolphin/
wahoo, reef fish, and snapper-grouper longline fisheries indicate that 
dusky shark bycatch is rare, averaging only a few observed mortalities 
per year. The commenters rely heavily on the extrapolated estimates of 
the first National Bycatch Report, 1st Edition Update 1 (2011), but as 
detailed in Chapter 1 of the FEIS and the response to Comment 13, NMFS 
generally does not rely on that Report for management purposes. 
Further, NMFS has determined that these estimates are inappropriate for 
use in developing conservation and management measures for this 
specific stock. These bycatch estimates were not accepted for use in 
the SEDAR 21 stock assessment and update by the data workshop working 
group, further highlighting their inadequacy for HMS management 
purposes. Dusky shark mortality does occur in state waters. However, 
NMFS does not manage the state water fisheries; as described in the 
FEIS and Appendix II, NMFS will coordinate with the states and the 
Atlantic States Marine Fisheries Commission on the measures implemented 
by this action. If the states also adopt measures commensurate with 
those included in Amendment 5b, as they often do with HMS actions, it 
will increase the mortality reduction benefits for dusky sharks. 
However, the measures in Amendment 5b, building on the existing Federal 
conservation and management measures, are sufficient to meet the 
Magnuson-Stevens Act requirements in the absence of state and/or 
Atlantic State Marine Fisheries Commission (ASMFC) action. The 
conservation and management measures that are components of the 
rebuilding plan are still in effect and include: A continued 
prohibition on retention of dusky sharks (Sec. Sec.  635.22(c)(4) and 
635.24(a)(5)), time/area closures (Sec.  635.21(d)), and the 
prohibition of landing sandbar sharks (the historic target species for 
the large coastal shark fishery and responsible for a significant 
portion of dusky interactions) outside of a limited shark research 
fishery, along with significant large coastal shark (LCS) retention 
limit reductions in the bottom longline fishery where interactions were 
commonly occurring (Sec. Sec.  635.24(a)(1), (2), and (3)). The 
measures in Amendment 5b will build upon these existing rebuilding plan 
elements.
    Comment 4: The EPA and some commenters expressed their concern that 
the proposed measures only appear to reduce mortalities as opposed to 
reducing interactions. They found this particularly concerning in the 
commercial longline fisheries where they suggest that many dusky sharks 
are already dead upon haulback (i.e., high at-vessel mortality). One 
commenter stated that sharks caught on longline gear that are still 
alive at haulback face significant post-release mortality. Some 
commenters felt NMFS should further consider alternatives that prohibit 
fishing during the areas/times that dusky sharks are most vulnerable to 
capture, reduce overall effort, or require the use of more selective 
fishing gear. Some commenters stated that the non-preferred alternative 
to implement hot spot closures is the only effective way to reduce 
dusky shark mortality. Some commenters advocated for the alternative 
that would impose a bycatch cap on the fisheries that interact with 
dusky sharks in hotspot areas. These commenters said that once a 
bycatch cap is reached, that should trigger hotspot closures in areas 
where dusky shark bycatch is known to be high for the corresponding 
fishery. Some commenters stated that the hotspot closure measures were 
the only alternatives that provided a quantifiable and objective 
reduction in dusky mortality.
    Response: NMFS agrees that there is evidence that dusky sharks 
experience high at-vessel and post-release mortality rates in some 
fisheries, including the longline fisheries. That is why the approach 
taken in Amendment 5b to reduce dusky shark mortality relies, in part, 
on bycatch reduction (Alternative B6), gear modifications (Alternatives 
A6d, B9), safe release requirements (Alternative B3), and education and 
training on handling techniques (Alternatives A2, B5, B6) to reduce at-
vessel and post-release mortality rates. NMFS analyzed a series of 
bycatch ``hotspot'' time/area closures in Alternative B4, but these 
alternatives were not preferred because similar or greater reductions 
could be achieved with other measures that would have fewer negative 
socioeconomic impacts. Additionally, the hotspot closure analyses only 
quantified the mortality reductions that could be achieved within the 
pelagic longline fishery (only one source of mortality), not across the 
whole stock. NMFS analyzed alternatives that would reduce fishing 
effort by making the recreational shark fishery catch-and-release only 
(Alternative A7), limiting the number of hooks on pelagic longline sets 
(Alternative B2), and entirely closing the pelagic longline fishery 
(Alternative B8). The analyses in Chapter 4 of the

[[Page 16481]]

FEIS support the determination that the Amendment 5b measures will 
achieve the necessary mortality reductions without the negative 
socioeconomic impacts associated with the hotspot closure and bycatch 
cap alternatives.
    Comment 5: One commenter stated that the overarching goal of 
Amendment 5b should be to effectively ``count, cap, and control'' dusky 
mortality in all fisheries that interact with the species.
    Response: NMFS disagrees that this general management approach 
would be feasible or necessary in Amendment 5b. The objectives of 
Amendment 5b are to end overfishing and rebuild dusky sharks, which 
must be achieved through reductions in mortality. A ``count, cap, and 
control'' approach is used in a number of other fisheries, and can 
reduce mortality in cases where appropriate bases exist to specify and 
monitor catch limits that are correlated with fishing mortality rates, 
but there are numerous other acceptable ways to reduce fishing 
mortality. In the case of the dusky shark, there are insufficient data 
to count or cap catches. Measures were taken in Amendment 2 to 
significantly reduce interactions with dusky sharks by, for example, 
severely reducing allowable catch in the bottom longline fishery for 
sandbar sharks (the primary source of dusky bycatch), and the dusky 
shark fishery remains closed by designating the species as a prohibited 
shark species and setting the catch limit at zero. These measures 
continue to be in effect. The same commenter acknowledges this fact, 
stating ``[i]n order to reduce bycatch, the Service must first 
determine how much bycatch is occurring, when, and where,'' and ``[t]he 
Fisheries Service cannot enforce bycatch caps if the amount of bycatch 
is unknown.'' NMFS agrees with these statements, which highlight the 
impracticality of the proposed ``count, cap, and control'' management 
approach in the absence of the fundamentally necessary bycatch data. As 
described in Section 1.2 of the FEIS and in the stock assessment 
update, total catch data do not exist, thus the SEDAR21 assessment 
update used a catch-free modeling approach, and the total allowable 
catch (TAC) estimates provided by the 2016 stock assessment update were 
not recommended as valid for use in management. For the above reasons, 
there is no rational basis in this situation for establishing an 
appropriate cap for dusky shark catches in any individual fishery or 
across fisheries that interact with them, or to know what level of 
catch would effectively and appropriately constrain fishing mortality. 
Consequently, the amended rebuilding plan does not contain measures 
that would rely upon absolute catch or discard estimates, such as a 
quota or sector ACLs. Instead, the measures in Amendment 5b focus on 
reducing the rates and relative levels of mortality. The measures in 
this action will achieve the necessary mortality reductions through 
other means, including bycatch reduction, safe release requirements, 
gear modifications and training that reduce at-vessel and post-release 
mortality rates, and outreach and education to improve compliance rates 
and data collection, in addition to the measures adopted in the 2008 
rebuilding plan. Additionally, with improved species identification 
training, data collection on recreational dusky shark catches should 
improve by reducing the occurrence of ``unidentified'' sharks in catch 
reports and surveys and increasing confidence in the reported catch of 
dusky sharks. As data collection improves, catch-based assessments and 
management measures may become feasible in the future.
    Comment 6: NMFS should establish bycatch caps between fishery 
sectors within the Consolidated HMS FMP, as well as between non-HMS 
FMPs as a ``preferred alternative'' in the final Amendment 5b. At a 
minimum, NMFS should coordinate bycatch caps among the HMS fisheries, 
Gulf of Mexico reef fish bottom longline fishery, and South Atlantic 
snapper-grouper bottom longline fishery, as well as other fisheries 
responsible for dusky shark bycatch and mortality.
    Response: NMFS disagrees that bycatch caps are appropriate for 
further limiting dusky shark mortality. Under Alternatives Considered 
but Not Further Analyzed in Chapter 2 of the FEIS, NMFS includes a 
detailed explanation of why bycatch caps, while helpful for some 
species, are not appropriate for the current situation with the 
available data for dusky sharks. The response to Comment 5 also 
addresses scientific concerns related to establishing dusky shark 
bycatch caps.
    Comment 7: The EPA noted that the 2014 Northwest Atlantic Dusky 
Shark Status Review Report identified hook time, correlated with soak 
time, as a significant factor in predicting at vessel dusky shark 
mortality. As such, the EPA recommended that NMFS consider providing 
more detail in the FEIS concerning the appropriateness of addressing 
hook soak time as a means of reducing dusky shark mortality in the 
longline fisheries.
    Response: NMFS agrees that there is considerable scientific 
information indicating that shorter hook soak times on bottom longlines 
are correlated with reduced at-vessel and post-release mortality rates 
on many shark species, including dusky sharks. However, as described in 
Section 2.3 of the FEIS (Alternatives Considered but Not Further 
Analyzed), an alternative that would limit soak time is not considered 
to be reasonable at this time because of safety, enforcement, and safe-
handling concerns. During the public comment period of the Amendment 5b 
Predraft, NMFS heard comment from industry that limiting soak time 
could rush fishing operations, particularly on sets with high numbers 
of large fish. In these instances, the crew may need to rush to meet 
soak time restrictions, compromising safety at sea and possibly rushing 
through protected resource safe handling requirements. From an 
enforcement perspective, concerns were raised about effectively 
monitoring such a measure fleetwide absent high levels of observer 
coverage and more general concerns were noted about the enforceability 
of soak times.
    Comment 8: NMFS received a wide range of comments regarding the 
need for a quantitative analysis explaining how the proposed measures 
would achieve the 35-percent reduction in dusky shark mortality. EPA 
and other commenters noted that it was difficult from the analyses in 
the DEIS to clearly evaluate the effectiveness of the different 
alternatives as contributing to the necessary mortality reduction. As 
such, the EPA recommended providing additional information in the FEIS 
to help quantify the impacts of the alternatives and facilitate 
comparisons of alternatives. Another commenter questioned whether the 
qualitative analyses of the proposed alternatives meet the standards 
required by NEPA. Several commenters called upon NMFS to conduct a more 
quantitative analysis of the proposed alternatives in the FEIS to 
demonstrate how they would achieve the targeted 35-percent reduction in 
mortality.
    Response: NMFS has been responsive to these comments in the FEIS, 
which includes more quantitative analysis of the expected impacts of 
the alternatives, to the extent possible using the best available 
scientific information. However, as described in Chapter 4 of the FEIS, 
it is not possible to specifically quantify the projected effect of 
most of the preferred alternatives on the overall dusky shark 
population because total catch and population size are unknown. The 
alternatives in the FEIS include more quantitative discussion than the 
DEIS included for the expected effects on mortality rates of individual 
sharks caught within the affected fisheries, but qualitative

[[Page 16482]]

inferences are still necessary due to the lack of data. Qualitative 
analyses are acceptable within NEPA analyses when quantitative 
resources are lacking. Therefore, while it is not possible to calculate 
the precise mortality reduction of the alternatives, individually or 
cumulatively, NMFS has determined that the best available scientific 
information indicates that the measures in Amendment 5b will end 
overfishing and rebuild the dusky shark stock as required.
    Comment 9: Two commenters suggested that NMFS had not fully 
analyzed a reasonable range of alternatives to end overfishing and 
rebuild the dusky shark stock consistent with NEPA requirements. These 
commenters stated that bycatch caps are within the reasonable range of 
alternatives and are one of the few measures that can objectively 
reduce dusky shark mortality. The commenters believe that by not 
analyzing bycatch caps, NMFS has not analyzed a full range of 
alternatives. These commenters also stated that to comply with NEPA 
requirements, a range of alternatives considering ACLs other than zero 
and additional AMs should be analyzed. Furthermore, it was stated that 
to comply with NEPA, a range of alternatives analyzing the impacts of 
using different probabilities of achieving rebuilding success (i.e., 50 
percent, 70 percent, or 90 percent probability) should have been 
developed.
    Response: The alternatives analyzed in Amendment 5b represent the 
reasonable range of alternatives, consistent with the purpose, need, 
and objectives of the rulemaking, as required by NEPA. Although some 
commenters have identified measures that they believe would better meet 
the objectives of Amendment 5b, not all of them are reasonable. Bycatch 
caps were not considered a reasonable alternative, as detailed in the 
Alternatives Considered but Not Further Analyzed section in Chapter 2 
of the FEIS. See also responses to Comments 5 and 6.
    Regarding the probability of rebuilding, NMFS made a 
scientifically-based determination about the appropriate level of risk, 
given the circumstances here. As discussed in Section 1.2 of the FEIS, 
NMFS has explained the scientific justification for using the 50 
percent probability and explained why 70 percent was not feasible due 
to poor data, uncertainty, and other concerns. The determination of 
which probability to use was not based on ecological, social, or 
economic impacts; rather, it was based on the stock assessment output 
estimates, overfishing risk tolerance, and the level of confidence in 
the output. A more detailed explanation of NMFS' determinations 
regarding the probability of rebuilding is available in the response to 
Comment 25.
    Comment 10: One commenter stated that Amendment 5b is inconsistent 
with National Standard 9 because the action does not provide a means to 
quantify dusky bycatch.
    Response: National Standard 9 of the Magnuson-Stevens Act states 
that ``[c]onservation and management measures shall, to the extent 
practicable: (1) Minimize bycatch; and (2) To the extent bycatch cannot 
be avoided, minimize the mortality of such bycatch.'' Consistent with 
this national standard, over the years, NMFS has implemented 
conservation and management measures to minimize bycatch and bycatch 
mortality of dusky sharks. See Chapter 1 of the FEIS. The Amendment 5b 
measures build upon those bycatch measures, as they are specifically 
designed to reduce at-vessel and post-release mortality rates of dusky 
sharks. In addition, the education and outreach measures will improve 
species identification and accurate reporting of catches of dusky 
sharks and other prohibited species. For an explanation of bycatch 
reporting methodologies for HMS fisheries, see Chapter 3 of the FEIS.
    Comment 11: One commenter stated that state water fishermen are 
interacting with dusky sharks during certain times of the year and that 
those fishermen often misidentify shark species. The commenter stated 
that dealers that purchase the sharks typically take the fisherman's 
word on species identification.
    Response: An important part of Amendment 5b's outreach effort to 
rebuild dusky sharks is working with the ASMFC and the Atlantic states 
to encourage them to reduce dusky shark mortality and implement 
measures that complement NMFS' effort within their jurisdictions. All 
shark dealers in Atlantic states (Maine through Florida) are required 
to obtain a Federal shark dealer permit, per the ASMFC Interstate FMP 
for Coastal Sharks, and must attend a shark identification workshop as 
a condition of their permit. Other members of the public, including 
state dealers in the Gulf of Mexico can attend these workshops and 
states have the option to set up their own workshops for state dealers 
to attend. Any Atlantic shark dealers misreporting shark species 
identification will continue to be referred for enforcement action as 
appropriate.
    Comment 12: Some commenters, including the EPA, suggested that NMFS 
consider extending the requirement to use dehookers or to cut the 
leader close to the hook to recreational shark anglers as well.
    Response: This final rule requires that commercial fishermen 
release all sharks that are not being boarded or retained by using a 
dehooker, or by cutting the gangion no more than three feet from the 
hook as safely as practicable. NMFS does not extend the same 
requirement to the recreational fishery. NMFS already requires 
recreational anglers to release sharks in a manner that maximizes the 
chance of survival, and many anglers do so by using dehookers or by 
cutting leaders close to the hook. At-vessel and post-release mortality 
of dusky sharks in recreational fisheries already appears to be low 
according to the available recreational data in the FEIS (Section 1.2). 
Thus, NMFS will continue to maintain the requirement as written in the 
recreational fisheries without specifying the required method of 
release, because the requirement is already effectively implemented.
    Comment 13: One commenter stated that Amendment 5b is not 
consistent with National Standard 2 because the action does not use the 
best available science. This commenter contends that, although highly 
uncertain, the TAC provided in the 2016 dusky shark stock assessment 
update is the best available science and should be used to provide a 
cap on fishing mortality. Furthermore, this commenter stated that the 
dusky shark bycatch estimates in the National Bycatch Report are the 
best available science and should be used, consistent with National 
Standard 2.
    Response: Amendment 5b is consistent with National Standard 2 and 
uses the best available science, including the 2016 SEDAR 21 stock 
assessment update for dusky sharks. It also relies on scientific advice 
regarding the value or advisability of using certain data as the basis 
for management measures. While certain data were deemed not reliable 
enough to form the basis of management measures, the development of the 
conservation and management measures and impact analyses drew heavily 
from several up-to-date data sources, including logbooks, observer 
reports, fishery-independent surveys, Marine Recreational Information 
Program (MRIP) estimates, and recent scientific research. Results from 
the stock assessment update and the other data sources represent the 
best available science. In acceptance of the 2016 stock assessment 
update as the best available science, NMFS has also accepted its 
recommendation to not use the calculated TACs, as described in

[[Page 16483]]

Section 1.2 of the FEIS and stock assessment update report. While the 
commenter recommended that we use ``the TAC'' in the stock assessment, 
the final 2016 stock assessment update had five different TAC estimates 
ranging from 7,117 to 47,400 lb (3.2 to 21.5 mt) dressed weight (median 
= 27,346 lb (12.4 mt) dressed weight), and NMFS has no scientific basis 
to select one TAC over another, and none of them are considered 
acceptable for management purposes.
    Because the stock assessment uses a catch-free model, it does not 
calculate projected levels of catch. Therefore, these estimates were 
not recommended for use in management according to the stock assessment 
documents. Specifically, the preliminary 2016 stock assessment update 
report stated that, ``[w]e also provided an estimate of the total 
weight of removals associated with different reductions in total F, but 
caution that these are estimates only, and subject to considerable 
uncertainty.'' Additionally, the final 2016 stock assessment update 
recommended that ``projections based on catch-based removals should not 
be considered.'' Therefore, NMFS accepts the recommendations of the 
stock assessment update, and will not use those TAC estimates as a 
basis for any management measures.
    As detailed in Section 1.2 of the FEIS, the values estimated in the 
National Bycatch Report, 1st Edition Update 1 for 2006-2010, used a 
methodology that tended to overestimate dusky shark bycatch in these 
non-HMS fisheries, which was corrected in the subsequent National 
Bycatch Report update for 2011-2013 (Table 1.6). Specifically, because 
there were so few observed dusky shark interactions in the reef fish 
and snapper-grouper BLL fisheries (as supported by Table 1.5), the 
National Bycatch Report (1st Edition Update 1) initially used dusky 
shark catch-per-unit-effort (CPUE) from the shark BLL fishery observer 
program, including the shark research fishery data, and expanded that 
catch rate to the total effort in the BLL fisheries for reef fish and 
snapper-grouper. BLL sets for sharks and reef fish/snapper-grouper are 
different (different gear configurations, soak times, etc.) and are not 
directly comparable. Additionally, because sets for both sharks and 
reef fish/snapper-grouper can occur on the same trip, estimates that 
treated these fisheries completely separately would have resulted in 
double counting of some sharks. The shark research fishery trips target 
sandbar sharks and have a comparatively high interaction frequency with 
dusky sharks, which resulted in artificially inflated values for dusky 
shark bycatch in the non-HMS BLL fisheries. Similar artificially 
inflated estimates were made in the vertical line and troll fisheries, 
where observed dusky shark interactions are near zero. Therefore, the 
dusky shark estimates provided in the National Bycatch Report, 1st 
Edition Update 1 (using 2006-2010 data) are considered invalid for use 
in management. The methodology used to estimate dusky shark bycatch in 
the National Bycatch Report, 1st Edition Update 1 was not used in the 
subsequent National Bycatch Report updates due to these issues. 
Additionally, these extrapolated catch estimates were not accepted for 
use in the SEDAR 21 stock assessment and update, which used catch-free 
models, further supporting NMFS' determination that these estimates are 
not acceptable for use in management.
    Comment 14: The EPA submitted a comment recommending additional 
environmental justice information in the EIS. Specifically, the EPA 
recommended that NMFS include the evaluation of environmental justice 
populations within the geographic scope of the projects. The EPA 
recommended that NMFS substantiate and include in the EIS whether the 
proposed alternatives have any potential for disproportionate adverse 
impacts to minority and low-income populations. The EPA also 
recommended that the EIS include the approaches used to foster public 
participation by these populations and describe outreach conducted to 
all other communities that could be affected by the project, because 
rural communities may be among the most vulnerable to health risks 
associated with the project.
    Response: NMFS appreciates these recommendations from the EPA and 
has added additional information in the environmental justice 
discussion in Section 9.4 of the FEIS.
    Comment 15: The EPA recommended providing summaries of any studies 
or other scientifically-supportable information that supports the 
assumption that recreational and commercial shark identification 
training will reduce dusky shark mortality through decreased 
misidentification and increased understanding of regulations.
    Response: The Alternative A2 ecological impacts section of Chapter 
4 of the FEIS details how species identification outreach can reduce 
mortality of elasmobranchs. Research on other U.S. Atlantic prohibited 
elasmobranch species has demonstrated that focused outreach and species 
identification training can improve compliance rates with prohibited 
species regulations to over 98 percent, including reducing illegal 
landings by 95 percent (Curtis and Sosebee 2016). Additionally, angler 
education programs that train recreational fishermen in safe fishing, 
handling, and release techniques result in reduced post-release 
mortality rates (Poisson et al. 2016).
    Comment 16: The EPA submitted a comment questioning the 
effectiveness of dusky shark species identification training, 
specifically with respect to Galapagos sharks. Galapagos sharks are 
very difficult to differentiate from dusky sharks. The EPA stated that 
while U.S. fishermen likely fish in areas overlapping with dusky shark 
distribution rather than Galapagos shark distribution, it is very 
difficult to tell the two species apart. The EPA contends that dusky 
sharks are morphologically very similar to, and genetically 
indistinguishable from, Galapagos sharks. Vertebral counts and subtle 
dorsal fin differences are characteristics used to distinguish the two 
species and are unlikely to be used without lethally exposing the 
vertebral column or comparing side-by-side specimens of the two 
species. The EPA stated that it is unclear how better species 
identification would resolve species identification difficulties.
    Response: NMFS is aware of the difficulty in differentiating 
between dusky and Galapagos sharks and the emerging research examining 
genetic differences. However, both species are prohibited from 
retention and landings, thus, both would be released by any fishermen 
catching and confusing the species. Because both species are 
prohibited, NMFS does not see an immediate sustainability threat to 
dusky sharks due to misidentification between the two species.
    Comment 17: The EPA submitted a comment stating that juvenile dusky 
sharks look very similar to juvenile sandbar, Galapagos, and silky 
sharks, even if adults are more readily identifiable. They were 
concerned that misidentification among the four species could reduce 
the effectiveness of efforts to reduce dusky shark mortality.
    Response: NMFS acknowledges the species identification challenges 
with juvenile dusky sharks and similar-looking species, which has been 
a chronic hindrance to estimating catches and assessing the stock with 
catch-based methods. However, the measures in Amendment 5b will reduce 
mortality rates on all sharks in the affected fisheries, and improve 
species identification. Because all four of the species mentioned in 
the EPA's comment are prohibited in the recreational fishery and cannot 
be

[[Page 16484]]

retained by pelagic longline fishermen, NMFS does not see an immediate 
sustainability threat to dusky sharks due to misidentification among 
these four species.
 B. Annual Catch Limits (ACLs) and Accountability Measures (AMs)
    Comment 18: One commenter stated that NMFS should not set the dusky 
shark ACL equal to zero. Instead, the commenter felt the Agency must 
use the best scientific information currently available to set a 
precautionary ACL that accounts for bycatch interactions of dusky 
sharks in each fishery that catches dusky sharks and propose AMs to 
ensure adherence to the ACL (including the current prohibition on 
retaining dusky sharks). Another commenter stated that dusky sharks 
should not be grouped with the other prohibited sharks under the same 
ACL.
    Response: Amendment 3 to the HMS FMP (2010) implemented a mechanism 
for establishing ACLs and AMs for each of the shark management groups. 
For sharks in the prohibited shark complex, this methodology was not 
applied because the fisheries were closed and landings were prohibited. 
Therefore, the ACL was considered to be zero, as clarified in this 
Amendment. Recent revisions to the NS 1 guidelines (81 FR 71858; 
October 18, 2016), specify that if an ACL is set equal to zero and the 
AM for the fishery is a closure that prohibits fishing for a stock, 
additional AMs are not required if only small amounts of catch 
(including bycatch) occur and the catch is unlikely to result in 
overfishing. See 50 CFR 600.310(g)(3).
    Here, the ACL for the prohibited shark complex continues to be set 
equal to zero, and the existing AM for all of the stocks in the 
prohibited shark fishery is a closure that prohibits fishing for the 
stocks. Inclusion of a species in the prohibited stock complex means 
that all commercial and recreational retention is prohibited and the 
fishery is closed (see Sec.  635.28(b)(1)(iv)). Thus, AMs in addition 
to the closure are not required if only small amounts of catch occur 
and the catch is unlikely to result in overfishing. There is no 
information suggesting that overfishing is occurring on species in the 
prohibited shark complex, except for dusky sharks, and the Amendment 5b 
rulemaking is undertaking AMs to end that overfishing.
    NMFS notes that there would be policy and scientific/data concerns 
if we were to specify an ACL other than zero for the prohibited shark 
complex, including dusky sharks. As noted in the response to Comment 
13, there was a high level of uncertainty in the 2016 assessment 
update, given limited data on dusky sharks, multiple data sources, and 
five plausible model scenarios. The update had five different TAC 
estimates, and these estimates were so uncertain and wide-ranging as to 
be inappropriate for management use according to the SEDAR 21 stock 
assessment. NMFS does not have a basis for picking one model scenario 
over another and is concerned that setting an ACL based on the highly 
uncertain TAC estimates could encourage increased catch. Furthermore, 
allowing catch or landings, even at low levels, could send a message to 
fishermen that interactions are permissible at some level and could 
disincentivize avoidance of interactions, which is one of the goals of 
the measures adopted in this Amendment. Thus, dusky sharks remain in 
the prohibited shark complex, with an ACL set at zero. The measures 
adopted through Amendment 5b, in addition to the continuation of 
measures adopted as part of the dusky shark rebuilding plan, are AMs.
    Regarding the comment that dusky sharks should be removed from the 
prohibited shark group and managed separately, separating dusky sharks 
and the other prohibited sharks under separate ACLs, each equal to 
zero, would not provide any meaningful advantage for any prohibited 
species over the approach being used. Catch and bycatch estimates, to 
the extent they are available, will still be tracked individually for 
each species and in any future assessments for prohibited sharks. 
Grouping all prohibited sharks under a single ACL does not preclude 
NMFS from considering management measures to address any sustainability 
concerns for any single stock, as evidenced by the actions in Amendment 
5b. In summary, NMFS has determined that specifying an ACL of zero for 
the prohibited shark complex, which includes dusky sharks, is 
appropriate and consistent with the NS1 guidelines and requirements of 
the MSA.
    Comment 19: Another commenter stated that NMFS has essentially 
operated under an ACL of zero since retention of dusky sharks was 
prohibited in 2000, has failed to track or limit bycatch of dusky 
sharks or enforce any limit of bycatch mortality with accountability 
measures, and in doing so has failed to end overfishing of the stock.
    Response: NMFS disagrees. Dusky sharks have been prohibited since 
2000, but ACLs were not established for HMS-managed sharks until 
Amendment 3 (2010). As clarified in this Amendment, the ACL for the 
stocks in the prohibited shark complex, including dusky sharks, is 
zero. The recreational and commercial fisheries for dusky sharks are 
closed, and the measures adopted in this amendment will ensure that 
only small levels of bycatch will occur and will not lead to 
overfishing. Contrary to the commenter's assertions, NMFS has taken 
significant management actions to address dusky shark overfishing since 
the prohibition for dusky sharks went into effect and has continuously 
monitored bycatch levels using all available data sources (see Section 
1.2 of the FEIS). The first dusky shark stock assessment was completed 
in 2006. As a result of that assessment, in 2008, NMFS established a 
rebuilding plan for dusky sharks and implemented major changes in the 
shark fisheries that changed how all directed shark fishermen conduct 
their business (e.g., creation of the shark research fishery, severe 
reduction of sandbar shark quota to reduce dusky shark bycatch, 
reduction in the trip limit, etc.). Since that time, there have been 
other actions in HMS fisheries, such as the implementation of Amendment 
7, that have resulted in significant changes throughout HMS fisheries, 
not just shark fisheries. According to the SEDAR 21 dusky shark stock 
assessment update, NMFS' management of dusky sharks has significantly 
reduced fishing mortality on dusky sharks, but not yet completely ended 
overfishing. Dusky sharks have experienced improvements in their stock 
status outlook as described in the 2016 stock assessment update and 
Section 1.2 of the FEIS. Overfishing has been reduced substantially 
(median F2015/FMSY ratio of five scenarios = 
1.18, compared to F2009/FMSY = 1.59 in the 
previous assessment). As detailed in the ecological impacts section of 
Chapter 4 of the FEIS, the management measures in Amendment 5b, which 
are AMs, will build on the success of past measures by further reducing 
bycatch mortality and ending overfishing. Additionally, NMFS has 
continually tracked dusky shark bycatch over time through numerous 
fishery-dependent monitoring programs (observers, logbooks, 
recreational surveys, etc.), as detailed in Section 1.2 of the FEIS.
    Comment 20: One commenter stated that the National Standard 1 
provision at 50 CFR 600.310(g)(3) should not apply to the dusky shark 
fishery. See response to Comment 18 for explanation of the provision. 
The commenter contends that (1) the dusky shark fishery is not closed 
as several fisheries that are known to interact with dusky sharks are 
still open; (2) overfishing is still occurring in the dusky shark 
fishery; and (3) bycatch is not small

[[Page 16485]]

considering the average annual number of dusky sharks caught as bycatch 
(529 per year according to the DEIS) is more than double the highest 
estimated TAC of adult dusky sharks (which the commenter calculated 
would be 249 dusky sharks by dividing the estimated TAC in the 
assessment by a potential average dressed weight of a mature dusky 
shark) that would provide a 70-percent chance of rebuilding by 2107, 
according to the recent SEDAR 21 update. The commenter also stated that 
the DEIS did not specify a threshold for determining what level of 
bycatch is ``small.''
    Response: As discussed in Section 1.2 of the FEIS, the ACL/AM 
provisions for dusky sharks in Amendment 5b meet the conditions set 
forth in the NS 1 guidelines. First, the dusky shark fishery is closed, 
as explained in response to Comment 18. Second, measures under 
Amendment 5b and this rule will end overfishing for dusky sharks and 
ensure that the small levels of bycatch are unlikely to lead to 
overfishing. NMFS notes that the estimated level of overfishing for 
dusky sharks in the current stock assessment update is not high (median 
of five plausible model scenarios is F2015/FMSY 
is 1.18; values >1 indicate overfishing).
    Third, for all sharks in the prohibited shark complex, only small 
amounts of catch (including bycatch) occur. The NS1 guidelines do not 
provide a definition or detailed guidance on what constitutes a 
``small'' amount of bycatch. However, the available data show that 
prohibited shark species--including dusky sharks--are not commonly 
caught as bycatch in HMS or other fisheries. Prohibited sharks as a 
group have observed bycatch amounts in the 10s and 100s of individuals. 
By comparison, many fish stocks have observed bycatch amounts estimated 
in the hundreds and thousands of metric tons, and prohibited shark 
species collectively represent a small portion of total shark bycatch 
across all fisheries (U.S. National Bycatch Report, First Edition 
Update 2, 2016). With regard to the commenter's TAC calculation, as 
detailed in the response to Comment 13, the TACs estimated in the 2016 
stock assessment update are not considered acceptable for management. 
Thus, direct comparisons of the observed mortalities summarized in 
Section 1.2 of the FEIS against the TACs estimated in the stock 
assessment update are not appropriate.
    In addition to requiring that the bycatch be ``small,'' the NS1 
guidelines specify that catch be unlikely to lead to overfishing. 
According to the available analyses, certain prohibited shark species--
basking sharks (Campana, 2008), night sharks (Carlson et al., 2008), 
sand tiger sharks (Carlson et al., 2009), white sharks (Curtis et al., 
2014), and bigeye thresher sharks (Young et al., 2016)--are not 
experiencing overfishing. While such analyses have not been completed 
for all of the prohibited shark species, there is no information 
suggesting that overfishing is occurring on species in this complex, 
except for dusky sharks, and the Amendment 5b rulemaking is undertaking 
AMs to end that overfishing.
    Comment 21: One commenter stated that the 50 CFR 600.310(g)(3) 
provision does not exist in the Magnuson-Stevens Act, and the Supreme 
Court has held that Federal agencies cannot create exemptions to a 
statute that Congress did not already include.
    Response: Section 50 CFR 600.310(g)(3) from the National Standard 1 
guidelines is consistent with, and not an exemption to, the Magnuson-
Stevens Act. The Act requires that FMPs establish ACL/AM mechanisms 
with the goal of preventing overfishing from occurring, 16 U.S.C. 
1853(a)(15). Section 600.310(g)(3) explicitly provides that its 
provisions may be invoked if there is an ACL of zero, an AM that is a 
closure, and ``catch is unlikely to result in overfishing.'' Response 
to comment 46 in the final National Standard 1 guidelines revisions (81 
FR 71858; October 18, 2016) explains that Sec.  600.310(g)(3) is an 
optional tool that will only apply to a limited set of cases where 
there is no way to account for the small amounts of bycatch occurring 
and, therefore, it is not pragmatic to establish AMs to try to account 
for such small amounts of bycatch that are unlikely to result in 
overfishing. NMFS notes that, as a statutory matter, the national 
standard guidelines do not have the force and effect of law, 16 U.S.C. 
1851(b). Consistent with Magnuson-Stevens Act requirements, as detailed 
in Chapter 4 of the FEIS, there is an ACL/AM mechanism for prohibited 
shark species, and bycatch of dusky sharks is unlikely to result in 
overfishing under the Amendment 5b management measures.
    Comment 22: A few commenters objected to setting the dusky shark 
ACL to zero on the grounds that it will lead to further restrictions in 
fisheries that interact with dusky sharks as the population recovers 
and interactions with the species increase accordingly due to their 
increasing abundance. With an ACL set equal to zero, NMFS would have no 
way to measure success, and dusky shark will inevitably become another 
choke species that will lead to unnecessary fisheries closures that the 
commercial and recreational fisheries cannot afford.
    Response: The Magnuson-Stevens Act requires fishery management 
measures to end and prevent overfishing and to rebuild overfished 
stocks. An ACL of zero for the prohibited shark complex, including 
dusky sharks, in conjunction with the continuation of measures adopted 
in the dusky shark rebuilding plan thus far (e.g., Amendment 2) and the 
new AMs outlined in Amendment 5b, will prevent overfishing. NMFS agrees 
that as the population recovers and the dusky shark stock increases, an 
increase in interactions could occur. NMFS will continue to monitor 
dusky sharks through the available fishery-dependent and -independent 
data sources, and future stock assessments, and consider additional 
management measures in the future if necessary.
    Comment 23: One commenter stated that, while NMFS' intention to 
monitor bycatch levels of prohibited sharks is necessary, there are no 
means to determine if bycatch mortality falls within safe ranges 
because nearly all the prohibited shark species have not undergone a 
stock assessment. Furthermore, the commenter stated that each of the 
prohibited shark species is unique with different life history traits, 
different bycatch levels, and different vulnerabilities. To address 
this concern, the commenter suggested creating four subgroups of 
prohibited shark species reflecting high and low levels of fishery 
interactions and high and low vulnerability based on life history 
traits. The commenter felt these subgroups could provide a way to 
prioritize monitoring and stock assessments, and those species with a 
high vulnerability and high fishery interactions could be prioritized 
over those with a low vulnerability and low fishery interactions. The 
commenter noted that this process could occur outside of the Amendment 
5b rulemaking process.
    Response: Many of the prohibited sharks do not have stock 
assessments. Stock assessments for prohibited species are often 
complicated by a near or complete lack of data. However, as this 
commenter noted, there are ways to prioritize monitoring and stock 
assessments among the prohibited sharks. NMFS has used methods to 
prioritize monitoring and stock assessments of prohibited sharks since 
first beginning management of Atlantic sharks with the 1993 FMP. Based 
on this prioritization, an initial analysis was performed of sharks 
that have more vulnerable life history traits and presumably higher 
levels of fishery interaction. Based on this information, retention of 
dusky sharks was

[[Page 16486]]

prohibited through the 1999 FMP, effective in 2000.
    The Brief Management History section of Chapter 1 has more detail 
and final rule references for this action. NMFS later created a 
Vulnerability Evaluation Working Group in 2008 to provide a methodology 
to determine vulnerability (a function of both biological productivity 
and susceptibility to fisheries) of a wide range of U.S. fish stocks 
(Patrick et al. 2009, 2010). Atlantic HMS sharks, including prohibited 
species, were part of this Productivity and Susceptibility Analysis 
(PSA), which found that the vast majority of prohibited species fell in 
the same region of the PSA plot (see Figure 5 in Patrick et al. 2009) 
indicating similar vulnerability. It was noted in the document that 12 
of the 14 prohibited species had some of the lowest susceptibility 
scores of all HMS Atlantic sharks. NMFS welcomes comments on ways to 
improve the stock assessment prioritization process, and may consider 
such changes in the future. However, this comment remains beyond the 
scope of Amendment 5b.
C. Dusky Shark Stock Assessment and Mortality Reduction Targets
    Comment 24: One commenter noted that the dusky shark assessment 
update may not be accurate because it did not consider several issues, 
including fishermen avoidance of the species since 2000; the potential 
non-reporting of dusky shark catches; flaws in some fishery independent 
surveys to account for range shifts due to climate change and other 
factors; and continuing problems in species identification. That 
commenter felt the next assessment should be a benchmark assessment 
that considers these issues. Another commenter noted the need to 
conduct a benchmark assessment for dusky sharks to address these and 
straddling stock (trans-international boundary) issues. Commenters also 
stated that future dusky shark stock assessments should include data 
from Mexican and Cuban water fisheries that also interact with dusky 
sharks.
    Response: Both the SEDAR 21 dusky shark stock assessment and stock 
assessment update acknowledge the uncertainties in all of the input 
data sources. However, these uncertainties were characterized to the 
extent possible and accounted for within the assessment model runs. 
NMFS has not yet scheduled the next dusky shark stock assessment, and 
agrees that the next dusky shark assessment should include a review of 
all available data sources, and should also investigate methods for 
addressing changes in management and fishing behavior, the validity of 
fishery-independent sources, environmental factors, potential data from 
neighboring nations that may catch dusky sharks, and other relevant 
information to improve the assessment.
    Comment 25: Some commenters were opposed to NMFS' decision to use 
mortality reduction targets estimated to provide a 50-percent 
probability of rebuilding the dusky shark stock by 2107. They contend 
that previous actions involving Atlantic HMS sharks have generally used 
the 70-percent probability for other sharks and that NMFS, in the 
Predraft for Amendment 5b, stated that the 70-percent probability is 
the most appropriate. The commenters stated that the necessary 
mortality reductions should reflect the 70-percent probability 
threshold given the fact that previous measures have failed to end 
overfishing over the last 10 years. One commenter stated that NMFS' 
rationale for using the 50-percent probability is incorrect. The 
commenter stated that while NMFS chose the 50-percent probability 
because the dusky shark assessment was highly uncertain, it was no more 
uncertain than the last dusky assessment and assessments for other 
shark species. The commenter also stated that NMFS chose the 50-percent 
probability because the assessment results were more pessimistic than 
expected, so NMFS changed the mortality reduction objective rather than 
properly addressing the results of the assessment. One commenter who 
supported the use of a 50-percent probability threshold noted that 50-
percent is a commonly used standard that has been judicially-approved 
for ending overfishing and the 50-percent threshold makes sense given 
the higher level of uncertainty associated with the update compared to 
past stock assessments.
    Response: NMFS' determination to use the fishing mortality 
reduction associated with a 50-percent probability of rebuilding by 
2107 is a standard approach in many NMFS stock rebuilding plans, is 
consistent with the Consolidated HMS FMP, and is scientifically 
justified as detailed in Section 1.2 of the FEIS. While NMFS typically 
uses a 70-percent probability for Atlantic highly migratory shark 
species, the 2016 update has a higher level of uncertainty than other 
shark assessments and presents a more pessimistic view of stock status 
than was expected based on a preliminary review of similar information 
and other available information. Such information includes the 
information reviewed in the ESA Status Review, reductions in U.S. fleet 
fishing effort due to management actions not reflected in the 2016 
stock assessment update, and improved age and growth information 
indicating that dusky sharks have faster age and growth dynamics than 
previously thought, which likely results in higher productivity than 
that considered in most of the model scenarios of the 2016 stock 
assessment update (Natanson et al., 2014). It is possible that the 
``high productivity'' model scenario encompassed the effects of this 
new life history information, while also reducing the plausibility of 
the ``low productivity'' scenario. This information could not be 
directly used in the 2016 assessment update, because assessment updates 
only incorporate data inputs (e.g., time series, life history 
parameters, etc.) that were previously vetted through the SEDAR process 
and approved as part of the most recent benchmark assessment. Here, 
that was the 2011 benchmark stock assessment (SEDAR 21). Based on its 
review of the 2016 update, understanding about the operation of the HMS 
fisheries under current management measures, and other available 
information, the F estimate associated with the 50-percent probability 
more accurately reflects current fishing pressure and accounts for the 
new information on dusky shark productivity than the F estimate 
associated with the 70-percent probability. Because of these issues, 
NMFS decided it was appropriate from a scientific perspective to use 
the F reduction associated with the 50-percent probability of 
rebuilding by the deadline in Amendment 5b. Using the F reduction 
associated with a 50-percent probability, rather than a 70-percent 
probability, appropriately reflects this change in risk tolerance while 
remaining sufficiently precautionary and is consistent with the 
standard used in rebuilding plans for most NMFS-managed stocks.
    From a statistical perspective, the wider confidence band in the 
projections results in the F estimate associated with a 70-percent 
probability being substantially lower than the apical value (the value 
at the peak of the distribution of F estimates). Thus, the F reduction 
associated with 70-percent goes well beyond what NMFS would consider 
appropriately precautionary even for species with relatively slow life 
history such as sharks. NMFS also notes that the rebuilding year (i.e., 
length of time the species could rebuild with no fishing mortality plus 
one mean generation time) was calculated using a 70-percent 
probability, as is typically done in assessments, which additionally

[[Page 16487]]

increases the likelihood of achieving rebuilding within the mandated 
time period. Furthermore, while the probability of rebuilding the dusky 
shark stock by 2107 with a 35-percent mortality reduction is 50 
percent, the probability of this mortality reduction immediately ending 
overfishing is approximately 77 percent according to the results of the 
final 2016 stock assessment update.
    Comment 26: One commenter specifically called for an ACL that will 
achieve at least a 50-percent reduction in dusky shark fishing 
mortality across all fisheries to ensure a 70-percent probability of 
successfully rebuilding by 2107, as designated by the U-Shaped 
mortality scenario described in the DEIS and the recent SEDAR 21 stock 
assessment update. Another commenter suggested that only an 8-percent 
reduction in fishing mortality is necessary because the U-shaped 
mortality scenario F/FMSY is only 1.08.
    Response: NMFS acknowledges that the 2016 stock assessment update 
provided five different model runs, all of which represent plausible 
states of nature for the dusky shark stock, consistent with the SEDAR 
21 benchmark assessment. However, as described in the assessment 
documents and Section 1.2 of the FEIS, there is no scientific basis to 
select one model run over another. Therefore, consistent with the 
approach used in comparable situations in other stock assessments, a 
multi-model inference was made using the results of the median model. 
In this case, the U-shaped Natural Mortality model run recommends a 53-
percent reduction in mortality to achieve a 70-percent probability of 
rebuilding by 2107. As described in the response to Comment 25 above, 
use of a 50-percent probability of rebuilding is warranted in this 
case. Therefore, NMFS has determined that the best available scientific 
information supports the use of the median model and a mortality 
reduction associated with a 50-percent probability of rebuilding by the 
deadline (i.e., 35 percent). Furthermore, there is no acceptable ACL 
associated with achieving any of the mortality reductions presented in 
the stock assessment update, as described in Section 1.2 of the FEIS. 
The ACL for the prohibited shark complex is zero, and this action is 
reducing mortality on dusky sharks using other measures since there are 
insufficient data to quantify catch or TACs with any certainty. 
Finally, NMFS disagrees that under the U-shaped mortality scenario, 
only an 8 percent mortality reduction is needed. An 8-percent mortality 
reduction may end overfishing, but would not rebuild the stock as 
required. A 35-percent mortality reduction is needed to end overfishing 
with a 50 percent probability and will be achieved by the measures 
adopted in this Amendment.
    Comment 27: The EPA suggested clarifying why it is appropriate to 
set a 35-percent mortality reduction target for dusky sharks when the 
2011 stock assessment recommended a 58-percent decrease relative to 
2009 levels.
    Response: The mortality reduction targets changed after the 2016 
assessment update and, as described in the response to Comment 25, NMFS 
has determined that Amendment 5b measures should reduce dusky shark 
mortality by 35 percent to end overfishing and rebuild the stock 
consistent with the most recent assessment update.
    As detailed in Chapter 1, the 2011 SEDAR 21 dusky shark stock 
assessment used data through 2009. After finalizing that stock 
assessment and beginning rulemaking to implement a rebuilding plan for 
dusky sharks, it became apparent that management measures implemented 
after 2008 in HMS fisheries (e.g., measures in Amendment 2) had reduced 
dusky shark interactions and mortality. Furthermore, fishery-
independent abundance indices prepared for the ESA status review showed 
increasing dusky shark population trends. Consequently, the Agency 
prioritized an update to the SEDAR 21 dusky shark stock assessment, 
using data through 2015, to incorporate recent management changes and 
updated fishery-independent indices. The SEDAR 21 dusky shark stock 
assessment update found that while the stock is still overfished and 
experiencing overfishing, the stock status was healthier than shown in 
the original SEDAR 21 assessment.
D. Shark Endorsement, Training, Species Identification, and Outreach
    Comment 28: NMFS received numerous comments in support of the shark 
endorsement (Alternative A2), including from the South Atlantic Fishery 
Management Council (SAFMC), and the States of North Carolina, South 
Carolina, and Texas. NMFS received comments expressing concerns and 
recommendations regarding the shark identification and training quiz. 
The State of Mississippi commented that shark species misidentification 
is not a problem in Mississippi waters. One comment stated that a test 
to obtain a permit was unheard of in salt and freshwater fishing and 
many fishermen may decide simply not to fish for sharks to avoid the 
burden of the online course. Another commenter noted that because 
hunters need to take a safety class with bird identification in the 
State of Florida to get a hunting license, an online class such as what 
is proposed and another for all HMS species, particularly in regard to 
reporting requirements, in order to receive a vessel permit is 
reasonable. Another comment indicated that misidentification and lack 
of data are the underlying issues facing the rebuilding of dusky 
sharks, and both of these can be properly and sufficiently addressed 
through a comprehensive HMS shark endorsement program (as outlined in 
Alternative A2) with online education modules during issuance and 
renewal of the endorsement. The commenter suggested that the quiz 
should focus on prohibited species identification (specifically dusky, 
sandbar, or ridgeback sharks), best practices for safe handling 
interaction, and a cooperative data collection initiative through 
reporting requirements. The commenter felt that cooperatively 
increasing fisherman knowledge and understanding of resource 
interactions allows for responsible management while also creating a 
sense of responsibility and stewardship of the resource. Lastly, 
another commenter noted that most anglers who have the time, resources, 
and knowledge to fish offshore already know how to properly identify a 
fish before harvesting it.
    Response: NMFS recognizes that the shark identification and 
regulations quiz accompanying the proposed shark endorsement represents 
a novel measure in the realm of marine recreational fisheries; however, 
it is by no means unprecedented in the realm of conservation 
management. As one of the supporting commenters noted, hunters in the 
State of Florida are required to take hunter safety classes that 
include a bird identification section, and similar hunter safety 
courses are required in almost all states. Compared to hunter safety 
courses, which historically could last an entire day or more, the 
proposed shark identification and regulations training course and quiz 
will place minimal burden on recreational anglers as it is intended to 
take only a few minutes to complete, while still conveying the 
necessary information in an efficient manner. The quiz will focus on 
dusky shark conservation to more effectively meet sustainability goals. 
Additionally, many commercial fishermen that pursue HMS fisheries have 
long been required to take extensive training workshops on the 
identification and safe release of protected species that can take a 
full day to complete. NMFS has identified

[[Page 16488]]

accidental landings due to misidentification as one of the primary 
sources of dusky shark mortality in the recreational fishery. NMFS 
considered several alternatives to address this problem including 
drastically increasing the minimum size for sharks and making the 
recreational shark fishery catch-and-release only. Both of these 
alternatives will have been assured to largely end accidental landings 
of dusky sharks in Federal waters, but will have had a far greater 
impact on the recreational fishery while doing far less to target the 
underlying issue of misidentification. As such, NMFS decided to prefer 
the more targeted approach of education and communication that could be 
provided by the shark identification and regulation training course and 
quiz. NMFS realizes that many recreational HMS anglers already know how 
to identify HMS species, including dusky sharks, and are familiar with 
HMS regulations. However, NMFS cannot be assured of getting the 
necessary information to those anglers who need it without requiring it 
of all Federal water anglers that wish to target and land sharks.
    Comment 29: NMFS received a comment from the State of South 
Carolina which noted that they do not oppose the requirement for the 
shark endorsement for HMS permit holders fishing in Federal waters, but 
stated that NMFS needs to remove the phrase ``fishing for sharks 
recreationally'' to make it clear that the endorsement is needed to 
land sharks caught in Federal waters whether the angler in question was 
targeting sharks or not. The State of South Carolina Department of 
Natural Resources (South Carolina DNR) also stated that the proposed 
shark endorsement is in direct conflict with South Carolina law Section 
50-5-2725 because permits are not required for the possession of sharks 
in South Carolina state waters. South Carolina DNR stated that, 
therefore, South Carolina would not enforce this final rule in its 
state waters.
    Response: This final rule does not conflict with or preempt any 
state regulations, nor does it place any enforcement requirements on 
states. Recreational shark anglers fishing exclusively in state waters 
will not be required to obtain the shark endorsement just as they are 
not required to obtain an Atlantic HMS Angling or Charter/Headboat 
permit, and states need not enforce Federal regulations against shark 
anglers who do not hold Federal permits. However, those recreational 
shark anglers that wish to target, retain, and land sharks in Federal 
waters will be required to obtain a shark endorsement along with their 
Atlantic HMS Angling or Charter/Headboat permit. Once the angler has a 
Federal permit, as a condition of that permit, the angler must abide by 
the Federal regulations, regardless of where they are fishing, 
including in state waters, unless the state has more restrictive 
regulations, as specified in the Final Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (64 FR 29090; May 28, 1999). HMS 
permit holders have been required to follow federal requirements in 
state waters as a condition of obtaining a federal permit since 1999 
for commercial permit holders and since 2006 for recreational permit 
holders. As explained in the FEIS for the 2006 Consolidated HMS Fishery 
Management Plan, the previous differing requirements between state and 
Federal regulations and the inability to verify whether or not a 
particular fish onboard a vessel was caught in state waters or Federal 
waters generated confusion for the federal permit holders. The states 
have been previously consulted on these Federal permit conditions, and 
are regularly consulted on all HMS management plan amendments.
    Comment 30: NMFS received a comment that supported the shark 
endorsement and suggested that NMFS implement the shark endorsement in 
non-HMS recreational fisheries that interact with sharks as well.
    Response: NMFS only has authority to manage shark fisheries in 
Federal waters, and any recreational angler fishing in Federal waters 
of the Atlantic, Gulf of Mexico, or Caribbean that wishes to retain 
sharks must possess an Atlantic HMS Angling or Charter/Headboat permit. 
As such, all recreational anglers that fish in Federal waters of the 
Atlantic will be required to obtain the shark endorsement to retain 
sharks. Individual states and the Regional Fisheries Management 
Commissions and Councils have the option to require Atlantic HMS 
permits of anglers fishing in state waters or for non-HMS, but the 
authority to do so lies with them and not NMFS. As stated above, once 
the angler has a Federal permit, as a condition of that permit, the 
angler must abide by the Federal regulations, regardless of where they 
are fishing, including in state waters, unless the state has more 
restrictive regulations.
    Comment 31: Commenters stated that NMFS should include a reporting 
requirement as part of the shark endorsement for all shark landing or 
develop a sampling protocol to survey shark populations to improve data 
reliability in the recreational sector.
    Response: As described in Chapter 2 (under Alternatives Considered 
but Not Further Analyzed), NMFS is not planning to include reporting 
requirements as part of the initial implementation of the shark 
endorsement, which could result in duplicative data collection efforts 
in recreational fisheries (e.g., MRIP, the Large Pelagics Survey 
(LPS)). However, NMFS is hopeful that the endorsement can serve as a 
framework for improving the sampling of recreational anglers that 
target sharks for surveys like those conducted by MRIP. How well this 
works will depend on what percentage of HMS anglers acquire the 
endorsement. The more HMS permit holders that acquire the endorsement, 
the less of a targeted sample it would provide compared to the existing 
HMS Angling and Charter/Headboat permits. However, this is 
counterbalanced by the fact that the more anglers getting the 
endorsement means the more anglers that will be receiving the targeted 
outreach and education materials on shark identification, safe 
handling, and shark fishing regulations, and the more anglers would 
then provide the correct shark identification when responding to 
surveys.
    As for the suggestion to include a reporting requirement in 
conjunction with the shark endorsement, HMS permit holders are already 
required to report their catches and landings when intercepted by NMFS 
catch and effort surveys like MRIP and the LPS. At this time, NMFS is 
not planning to require any additional reporting requirements similar 
to the requirements for billfish, bluefin tuna, and swordfish. The 
mandatory reporting requirement for most of these species is only to 
report fish that are landed (bluefin tuna reporting also includes dead 
discards), and because landing dusky sharks is prohibited, any similar 
reporting requirement for sharks should not provide data on dusky 
catches. NMFS is also reluctant to require reporting on released sharks 
as the agency does not have the authority to extend the requirement to 
state water anglers who are responsible for a significant portion of 
recreational catches and landings for most shark species. This is not a 
concern with other HMS with mandatory reporting requirements as NMFS 
manages bluefin tuna to the shore, and billfish and swordfish are very 
rarely caught in state waters. NMFS is also in the process of reviewing 
the needs of MRIP and the LPS as part of the Regional MRIP 
Implementation Plan. As part of that review, NMFS is

[[Page 16489]]

considering what, if any changes, are needed to improve recreational 
estimates of shark harvest.
    Comment 32: NMFS received comments requesting an option to cancel 
the shark endorsement for fishermen when they are not fishing for 
sharks or sharks are not in their area. Other commenters expressed 
concern that providing an option for cancelling the shark endorsement 
throughout the year would create confusion as to who and when fishermen 
could retain/land sharks during a given year.
    Response: NMFS believes the demand for the option to drop the shark 
endorsement will be largely negated by the new circle hook alternative 
(A6d) that requires endorsement holders to use circle hooks only when 
fishing for sharks, as opposed to the previously preferred alternative 
(A6a), which required the use of circle hooks whenever fishing with 
wire or heavy monofilament or fluorocarbon leader, as the new preferred 
alternative removes any potential conflicts with non-shark fisheries. 
If sharks are to be retained, circle hooks must be used, regardless of 
bait or gear configuration (with the exception of artificial lures and 
flies). NMFS will still provide the option for anglers to drop the 
shark endorsement if they so desire.
    Comment 33: NMFS received a comment from the SAFMC suggesting that 
NMFS include a small fee for the shark endorsement to provide a minor 
barrier to entry. The comment noted that the fee would assist with 
defining the universe of fishermen actually targeting sharks, and thus 
improve the ability of the shark endorsement to provide a targeted 
sampling frame for shark anglers. Other commenters stated that there 
should not be an extra fee for the shark endorsement because the HMS 
Angling Permit already has a fee.
    Response: NMFS has considered the possibility of charging a 
separate fee for the shark endorsement, but has opted not to take that 
direction at this time as it does not represent a standalone permit. 
Additionally, NMFS does not want to unduly discourage permit holders 
from receiving the endorsement as the primary goal of the endorsement 
is to facilitate education and outreach on shark identification, safe 
handling, and fishing regulations while using the endorsement as a 
sample frame for data collection is only a secondary benefit. 
Furthermore, it is generally agreed that those anglers and charter/
headboat captains that do not regularly target sharks, and are more 
likely to only interact with a sharks incidentally, are the ones that 
will most benefit from the educational aspects of the shark endorsement 
while also being the ones most likely to opt not to obtain it if it 
required paying an additional fee. As such, NMFS believes the benefits 
of the shark endorsement to dusky shark conservation will be maximized 
if a fee is not charged. Furthermore, NMFS does not see a need to limit 
entry into the recreational shark fishery to promote dusky shark 
conservation as they are not a target species, but are only caught 
incidentally.
    Comment 34: NMFS received numerous comments regarding the online 
shark identification and training course. One commenter noted that the 
online quiz should be short and quick, and specifically address dusky 
sharks. Another commenter felt that the shark identification quiz 
should focus on prohibited species identification, and best practices 
for safe handling. To improve and evaluate the effectiveness of the 
shark endorsement, one commenter recommended that implementation of the 
endorsement and online training course follow key principles for 
effective e-learning, and include an evaluation component to assess its 
effectiveness at educating permit holders. This commenter submitted 
detailed information on how to approach and evaluate adult learning in 
online training.
    Response: In the interest of minimizing burden to the angling 
public, NMFS intends to keep the shark endorsement short and targeted. 
It will focus on key recreational shark fishing regulations (minimum 
size limits, bag limits, and circle hooks), and key identifying 
characteristics of prohibited shark species such as the interdorsal 
ridge. More detailed information on shark identification and safe 
handling techniques will be distributed to shark endorsement holders 
through targeted outreach materials that the angler can keep on hand 
for future reference. NMFS greatly appreciates the information and 
literature one commenter provided on adult learning and online 
training. NMFS will strive to apply adult learning principles in the 
design of the shark endorsement training and quiz. NMFS intends the 
shark endorsement quiz to be an adaptive tool that will be evaluated on 
a regular basis to determine which questions provide the most 
educational benefit, what topics require the most targeted outreach, 
and how the training course can be improved.
    Comment 35: NMFS received a comment requesting that all applicants 
applying for the shark endorsement be asked to provide an estimated 
number of sharks caught in the previous year. The comment noted that 
many fishermen may choose to get the shark endorsement regardless of 
whether they intend to target sharks ``just in case.'' Providing 
information on the number of sharks caught in the previous year would 
allow NMFS to have a more accurate representation of the universe of 
fishermen targeting sharks in any given year.
    Response: Asking shark anglers to recall the number sharks they 
have caught in the previous year as part of the shark endorsement would 
result in highly inaccurate responses given the long length of the 
recall period (12 months). None of the current MRIP surveys use recall 
periods of anywhere near this length with most using recall periods of 
only two months. This measure is not considered reasonable because it 
would be duplicative with existing recreational fishery data collection 
efforts (e.g., MRIP, LPS) and would not meet the primary objectives of 
this amendment (i.e., ending overfishing and rebuilding dusky sharks). 
Furthermore, the collection of such data would likely be inaccurate and 
difficult, if not impossible, to verify as anglers would need to 
remember all trips and catches from the previous year. Existing data 
collection efforts, while still flawed, produce better catch and effort 
estimates than collection of such information once a year when someone 
is applying for a permit. Additionally, creation of this type of data 
collection would likely be costly in terms of the data management 
infrastructure needed, and the data management clearances required for 
the collection could delay implementation of this action, which is 
needed to end overfishing on dusky sharks. NMFS is currently looking at 
ways to improve MRIP and LPS data collection surveys for all HMS as 
part of its regional MRIP implementation plan. Any changes as a result 
of those data collection methods would result in more reliable 
recreational data than a once-a-year collection of information when 
people are applying for the shark endorsement.
    Comment 36: NMFS received a comment from the SAFMC which noted that 
when applying for the shark endorsement, NMFS should make it clear that 
those fishermen holding the endorsement would need to use circle hooks 
in certain situations and that sharks caught incidentally on J-hooks 
would need to be released. Additionally, the SAFMC noted, when 
presented with the option to apply for the endorsement, NMFS should 
clearly inform fishermen that, without the endorsement, sharks cannot 
be retained.
    Response: NMFS agrees with the SAFMC's comment that it is important

[[Page 16490]]

to make it clear to anglers applying for the shark endorsement that 
circle hooks will be required when fishing for sharks, that sharks 
incidentally caught on J-hooks will need to be released, and that the 
shark endorsement will be required to retain sharks caught in Federal 
waters. All of these issues will be highlighted during the permit 
application process and shark endorsement quiz.
    Comment 37: NMFS received comments suggesting shark fishermen or 
all HMS permitted vessels be required to carry a shark identification 
placard (Alternative A3) instead of taking the online quiz to receive 
the shark endorsement.
    Response: NMFS considered requiring HMS permitted vessels to carry 
a shark identification placard in alternative A3. NMFS did not prefer 
this alternative because while anglers could be required to carry a 
placard that, if used, might help identify dusky and other sharks, 
ensuring that anglers reference the material would be difficult. NMFS 
feels that Alternative A3 will provide for a more passive learning 
experience and does not provide feedback to the angler like the online 
shark endorsement quiz in Alternative A2. However, as part of the 
outreach and education campaign described in Alternative A2, NMFS 
intends to provide additional outreach materials, in addition to the 
placard, that anglers could use as a reference after taking the quiz.
    Comment 38: NMFS received a comment requesting that NMFS require 
all HMS recreational permit applicants participate in a broader 
training course encompassing regulations on all HMS recreational 
fisheries including sharks. The comment noted that the HMS permit 
should be issued on completion of the training course.
    Response: The purpose of this action is to address the specific 
issue of ending overfishing of dusky sharks in the Atlantic, and no 
additional benefit to dusky sharks would likely occur as a result of 
the broader training course suggested by the commenter. Rather, the 
commenter's suggestion was aimed at improving angler knowledge of all 
HMS identification and recreational fishing regulations, which has not 
proven to be a significant issue. Using this action to require all 
anglers applying for an HMS permit to take a broad training course on 
HMS fisheries regulations and species identification to address a minor 
issue that is not targeted exclusively toward ending overfishing of and 
rebuilding dusky sharks is beyond the scope of this action. While such 
a training course might be beneficial, issues of species 
misidentification have not proven to be a consistent problem and driver 
of overfishing in non-shark HMS fisheries. As such, NMFS believes that 
a more targeted course on shark identification and regulations will be 
more likely to achieve the goals of this action.
    Comment 39: NMFS received numerous comments from recreational 
fishermen regarding the impact of the shark endorsement on data 
collection. One commenter noted the shark endorsement would provide a 
better estimate of recreational shark fishermen and increase the 
confidence in MRIP shark catch estimates. Other commenters were 
concerned that the shark endorsement would lead to inflated shark catch 
estimates, further noting that most HMS anglers would choose to get the 
endorsement, regardless of whether they plan to target sharks in order 
to keep the option for shark fishing open. Additionally, one commenter 
felt that the shark endorsement benefit would be minimized by the fact 
that HMS permits are vessel-based; therefore, the permit holder, rather 
than the individuals fishing, would be reporting.
    Response: NMFS expects that the endorsement can serve as a 
framework for improving the sampling of recreational anglers that 
target sharks for MRIP surveys like the LPS. NMFS recognizes that the 
more HMS permit holders that acquire the endorsement, the less of a 
targeted sample it would provide compared to the existing HMS Angling 
and Charter/Headboat permits; however, this should not result in 
inflated estimates of sharks caught in Federal waters. The HMS Angling 
and Charter/Headboat permit lists are already used as sampling frames 
for the LPS and the For-Hire Survey, which provide estimates of shark 
fishing effort and landings by HMS permit holders. If all HMS permit 
holders obtain the shark endorsement, then the survey sampling frames 
would remain the same, and the resulting estimates should be largely 
unchanged. However, the fact that HMS permits, and thus the shark 
endorsement, are vessel-based permits will limit its usefulness as a 
sampling frame for other MRIP surveys that are not vessel based, but 
instead target individual anglers.
    Comment 40: NMFS received comments suggesting that NMFS update the 
shark identification placard to include information for dusky sharks. 
Other commenters felt that a dusky shark identification guide should be 
printed directly on the HMS Angling permit.
    Response: In addition to the shark endorsement, NMFS will be 
conducting an extensive outreach and education campaign on shark 
identification and fishing regulations. This will include updating the 
existing shark identification placard, and developing dusky shark 
specific educational materials that will be distributed at locations 
that anglers frequent, such as tournaments or bait shops, and to 
individuals that acquire the shark endorsement. NMFS does not plan to 
print the shark identification guide directly on the HMS Angling permit 
at this time as this would substantially increase the size of the 
permit. Furthermore, NMFS has received numerous anecdotal accounts that 
anglers rarely read their permits and disseminating information through 
permits may not be effective.
    Comment 41: NMFS received a comment expressing concern regarding 
the impact the proposed dusky measures will have on charter or 
recreational fishing vessels that fish for both sharks and tuna on the 
same trip. In New England, most sharks are caught incidentally when 
fishing for other pelagic species, particularly tuna. The comment noted 
that combined tuna and shark trips are critical for charter fishing 
businesses and anglers should be allowed to fish for both species in 
the same day with the same permit.
    Response: None of the provisions in Amendment 5b are intended to 
prohibit anglers from pursuing sharks and other HMS during the same 
fishing trip. An angler possessing a shark endorsement is not 
prohibited from fishing for other HMS when appropriately permitted to 
do so and consistent with requirements. Permit holders wishing to 
retain sharks will be required to use circle hooks to fish for sharks, 
unless they are fishing in New England waters north of 41[deg]43' N. 
latitude, or are fishing with flies or artificial lures. This boundary 
line for the circle hook requirement was added to the new preferred 
Alternative A6d to eliminate any impacts to the HMS recreational 
fishery outside of the dusky sharks' known range. The exception for 
flies and artificial lures was added because NMFS heard from 
commenters, including the State of Florida and the SAFMC, concerned 
that fly fishing for sharks could inadvertently be impacted by the 
requirement to use circle hooks when targeting sharks with natural 
bait. Although not widely done at this time, some fishermen target 
sharks with fly fishing gear, usually with J-hooks. NMFS does not know 
of instances where cut or whole bait is used when fly fishing for 
sharks, but it is common for the terminal fly to include natural 
components such as bird feathers. Furthermore, it is well known by

[[Page 16491]]

anglers, and verified by research, that artificial lures and flies 
rarely gut hook sharks or other fish species, and are much less likely 
to do the type of tissue or organ damage that leads to post-release 
mortality. For these reasons, in the final action, NMFS has preferred 
to specifically exempt shark fishermen using flies and artificial lures 
from the circle hook requirement.
    Comment 42: NMFS received comments suggesting the need for 
cooperation between the Agency, States, and Councils to ensure that 
outreach materials reach recreational state water fishermen. Commenters 
noted that recreational state-water fishermen have a high likelihood of 
misidentifying sharks. Furthermore, commenters noted recreational 
state-water fishermen in the State of North Carolina potentially are 
interacting with dusky and sandbar sharks depending on time of year and 
weather. The EPA also recommended that NMFS provide incentives to 
tournament organizers, fishery associations, etc., to encourage and 
enlist their participation in increasing fishermen's awareness of 
prohibited shark species identification and regulations.
    Response: NMFS is aware that tournament anglers and anglers that 
fish exclusively in state waters make up a portion of the recreational 
shark fishery, and are likely interacting with dusky and sandbar sharks 
depending on their region and time of year and weather. As such, NMFS 
fully intends to work with the state agencies, commissions, councils, 
and shark tournament organizers to ensure that shark educational and 
outreach materials reach all of these anglers. NMFS will be developing 
a detailed outreach plan for dusky shark conservation efforts that will 
identify points of contact at state agencies, fishery management 
councils, and major shark fishing tournaments with a particular focus 
on those regions where dusky shark interactions are most common. 
Outreach efforts by NMFS will also target recreational fishing 
publications that cater to shark anglers.
E. Alternative A6--Circle Hooks in the Recreational Fishery
    Comment 43: NMFS received various comments regarding the proposed 
circle hook measure's potential to achieve mortality reductions. Some 
commenters felt that circle hooks would reduce the chance of gut 
hooking and increase the chance of post-release survival for dusky 
sharks, consistent with our analyses in the draft Amendment. Other 
commenters support the circle hook requirement for recreational shark 
fisheries but question the effectiveness of the requirement as it 
relates to reaching a 35-percent reduction in mortality given the 
inconsistency of study results between different species of sharks. 
Additionally, NMFS received a comment that noted that Amendment 5b 
lacks sufficient quantitative analysis on how the circle hook 
requirement would achieve mortality reduction. Some commenters felt the 
circle hook requirement would negatively impact fishermen targeting 
other species and cause economic hardships while being unenforceable. 
Other commenters felt that little scientific evidence exists to support 
the mandatory use of circle hooks while some commenters noted that 
circle hooks are designed not to hook anything until they find a hard 
edge, reducing the chances of hooking internal soft tissue, and would 
be beneficial for sharks. Commenters further noted that more research 
is needed on the use of circle, J, and barbless J-hooks. The EPA 
commented that NMFS should provide incentives to tournament operators, 
fishery associations, etc., to encourage and enlist their participation 
in advocating for recreational fishermen's use of circle hooks by all 
Atlantic HMS permit holders participating in fishing tournaments when 
targeting or retaining sharks.
    Response: Circle hooks provide demonstrably positive benefits to 
dusky sharks caught and released in the recreational shark fishery. 
While post-release survival is important for the stock health of most 
species, it can be particularly important for prohibited species 
because post-release mortality is the primary source of fishing 
mortality for the stock. As such, ensuring that dusky sharks are 
released in a condition that maximizes survival is an important way to 
reduce fishing mortality. Most evidence suggests that circle hooks 
reduce shark at-vessel and post-release mortality rates without 
reducing catchability compared to J-hooks, although it varies by 
species, gear configuration, bait, and other factors. Willey et al. 
(2016) found that 3 percent of sharks caught recreationally with circle 
hooks were deep hooked while 6 percent caught on J-hooks were deep 
hooked. A more detailed examination of these data provided to NMFS by 
Willey et al. indicated even greater positive impacts specific to dusky 
sharks, showing a deep-hooking rate of 6 percent for circle hooks and 
17.5 percent for J-hooks in dusky sharks (N=230); a reduction of 66 
percent. Campana et al. (2009) observed that 96 percent of blue sharks 
that were deep hooked were severely injured or dead while 97 percent of 
sharks that were hooked superficially (mouth or jaw) were released 
healthy and with no apparent trauma. Therefore, assuming that deep 
hooking in dusky sharks results in comparable post-release mortality 
rates to those of blue sharks (96 percent), converting recreational 
shark fisheries from J-hooks to circle hooks should reduce the 
mortality rate of hooked dusky sharks by 63 percent ((17.5%-6.0%/17.5%) 
* 96% = 63%). By requiring circle hooks for shark fishing in the 
recreational fishery, dusky sharks that are inadvertently caught in the 
recreational fishery would be more easily released in better condition, 
reducing dead discards and post-release mortality. While additional 
studies, including on the use of barbless J-hooks, are always helpful, 
the existing literature supports a circle hook requirement in the 
recreational shark fishery to reduce dusky shark mortality. As 
suggested by the EPA, NMFS intends broad-scale outreach across a number 
of fishing organizations to inform the affected public about new 
management measures and the dusky shark sustainability concerns.
    Comment 44: NMFS received a large volume of comments expressing 
concern over the proposed definition of shark fishing for purposes of 
applicability of the circle hook requirement in the alternative 
preferred in the draft Amendment (A6a). Commenters, including the 
States of Florida and North Carolina, noted that the proposed language 
would have the effect of including fishing in multiple non-shark 
recreational fisheries such as swordfish deep dropping and trolling for 
billfish, tuna, wahoo, and mackerels. The proposed measure required 
that circle hooks be used by everyone who has the shark endorsement and 
who fishes with the specified natural bait/gear configuration. The 
State of South Carolina opposed Alternative A6a as originally proposed, 
as it would place a significant burden on fishermen not fishing for 
sharks but who opt to get the endorsement in case they want to land a 
bycaught shark, specifically impacting fishermen trolling offshore for 
dolphin, wahoo, and tuna. Commenters suggested that NMFS remove the 
definition of shark fishing as it relates to applicability of the 
measure to avoid potential conflicts with other fisheries. 
Additionally, NMFS received comments, including from the SAFMC and the 
State of Texas that suggested the shark fishing definition should apply 
to all recreational fishermen targeting sharks, instead of all 
fishermen using wire, or heavy monofilament or

[[Page 16492]]

fluorocarbon leaders, and natural baits and that doing so would 
minimize impacts of the measure and its attendant costs on non-shark 
fisheries. Furthermore, NMFS received comments stating that a better 
definition of shark fishing for the circle hook requirement would 
include chumming activities, large chunks of cut natural bait (dead or 
alive), wire greater than #9 gauge, multistrand cable, or monofilament 
leaders greater than 2.0 mm, activities that were excluded from the 
previous definition's approach.
    NMFS received a comment suggesting that using hook size as an 
indicator of shark fishing, as proposed in another non-preferred 
alternative (Alternative A6b), would be complicated and ineffective. 
The comment noted that determining specific hook size requirements 
would be difficult given differences between manufacturers, especially 
regarding a multi-species fishery. NMFS also received comments from the 
State of Florida and the SAFMC requesting recreational fishermen using 
flies with natural components (i.e., hair, feathers) be exempted from 
the natural bait definition.
    Response: NMFS agrees that definition of shark fishing proposed in 
the DEIS and proposed rule would sometimes impact other types of non-
shark fishing. It is not NMFS' intention to impose circle hook 
requirements on non-shark fisheries because those fisheries rarely 
interact with dusky sharks. For these reasons, NMFS modified the circle 
hook requirement, presented as Alternative A6d. Under this new 
preferred alternative, instead of requiring circle hooks when a 
specified gear configuration is used (e.g., strong leaders and natural 
bait, or the non-preferred option of hook size and natural bait), 
circle hooks will be required on any fishing line deployed to target 
sharks, unless artificial lures or flies are used since artificial 
lures and flies rarely result in gut-hooking. With this alternative, 
NMFS broadly requires circle hooks for all recreational shark fishing 
within a defined geographical boundary unless fishing with artificial 
lures or flies, as discussed below), rather than more narrowly when 
shark fishing with a particular gear/bait configuration. This measure 
ensures that all recreational shark fishing is included (except when 
fishing with artificial lures or flies) in the circle hook requirement 
while avoiding the unintended effect of requiring circle hook use in 
non-shark fisheries. Within the defined geographical boundary, shark 
possession and landing will still be prohibited if the shark was not 
retained on a circle hook or using an artificial lure or flies.
    Chumming and large chunks of cut bait were excluded from the 
definition of shark fishing in the proposed rule/Draft Amendment 
because neither are used in all shark fishing trips, both are used in 
many other marine recreational fisheries, and their inclusion would 
have effectively limited enforcement of the circle hook requirement to 
when fishing activity was directly observed on the water. Additionally, 
what constitutes a large chunk of cut bait can vary considerably 
depending on the target species, including among different species of 
sharks. Alternatively, wire greater than #9 gauge, multistrand cable, 
and monofilament leaders greater than 2.0 mm all fell within the leader 
requirement within the definition of shark fishing under Alternative 
6a, and comment was requested on the specific leader weight 
definitions. However, given the general opposition to the leader 
requirement, and the definition of shark fishing, it was determined 
that another course of action was preferable to modifying the leader 
requirements for using circle hooks. NMFS heard from commenters, 
including the State of Florida and the SAFMC, concerned that fly 
fishing for sharks could unnecessarily be impacted by the requirement 
to use circle hooks whenever recreationally fishing for sharks. 
Although not widely done at this time, some fishermen target sharks 
with fly fishing gear or artificial lures, usually with J-hooks. NMFS 
is providing an exemption for artificial lures and flies from the 
circle hook requirement. Such lures, which mostly use J-hooks, are 
fished actively, meaning that sharks don't have an opportunity to 
swallow the hook, and are therefore mostly hooked in the mouth. There 
is no evidence that artificial lures or flies frequently cause gut-
hooking and associated post-release mortality (Muoneke and Childress, 
1994; Brownscombe et al., 2017). For this reason, in the final action, 
NMFS has preferred to specifically exempt shark fishermen using flies 
and artificial lures from the circle hook requirement.
    Comment 45: The State of South Carolina suggested that NMFS exempt 
fishermen trolling from the circle hook requirement as the conservation 
benefit is unclear. NMFS also received comment that when trolling for 
tunas, sharks will sometimes get hooked in the lip when depredating the 
tuna catch. The commenter felt these sharks should be able to be 
retained.
    Response: NMFS has decided, due to enforcement issues, not to 
include an exemption to the circle hook requirement for sharks caught 
while trolling. Allowing the retention of sharks caught on J-hooks 
introduces a loophole in the circle hook requirement and is 
counterproductive to NMFS' intention to reduce dusky shark mortality. 
If a fisherman wishes to retain sharks caught on J-hooks, they could 
simply contend that they were ``trolling.'' NMFS' concern is that the 
only way for enforcement officers to know a shark was caught while 
trolling would be to witness the catch as it happens. Conversely, an 
enforcement officer intercepting an angler landing a shark at the dock 
would have no way of knowing if the shark was caught while trolling or 
using another fishing method.
    Comment 46: NMFS received several comments, including from the 
SAFMC, and the States of Florida, South Carolina, and North Carolina, 
suggesting NMFS define the type of circle hook (e.g., non-offset, non-
stainless steel) required for Alternative A6a; specifically, the SAFMC 
and the States of Florida and North Carolina suggested that NMFS 
specify the use of non-offset and non-stainless steel circle hooks.
    Response: NMFS agrees that it would be more effective to specify 
that non-offset, non-stainless steel circle hooks are required. These 
hooks reduce the chance of damaging the gut track of sharks if 
swallowed, and because they are corrodible, will deteriorate and fall 
out of the jaw of the shark if left in. These two features will reduce 
post-release mortality of dusky sharks. Additionally, non-offset circle 
hooks are also currently required to be used in billfish tournaments, 
and the South Atlantic snapper/grouper fishery, which also requires the 
use of non-stainless steel hooks. For these reasons, the circle hook 
measure for recreational fishing has been clarified to require non-
offset, non-stainless steel circle hooks to maximize reductions in 
post-release mortality, and to be consistent with circle hook 
requirements in other recreational fisheries.
    Comment 47: NMFS received comments from the SAFMC and the State of 
North Carolina supporting the requirement of circle hooks in shark 
fishing tournaments (Alternative A6c).
    Response: NMFS agrees that circle hook use in shark fishing 
tournaments will be beneficial for dusky sharks for the same reasons 
they are beneficial in the greater recreational shark fishery. Under 
Alternative A6d, fishermen fishing for sharks recreationally will be 
required to get a shark endorsement and will be required to use circle 
hooks when fishing for sharks whether they are fishing in a tournament 
or not,

[[Page 16493]]

except when using flies or artificial lures. Requiring circle hooks in 
the greater recreational shark fishery, rather than only in shark 
tournaments, provides a greater conservation benefit for dusky sharks.
    Comment 48: NMFS received a comment from the State of North 
Carolina requesting that circle hooks not be required to retain, 
possess, or land sharks if an angler catches a shark when targeting 
non-shark species. The comment noted that allowing the retention of 
incidentally caught sharks would prevent dead discards.
    Response: While NMFS can understand why it would appear desirable 
to allow anglers to retain sharks incidentally caught on J-hooks, the 
agency is concerned that doing so would undermine the enforcement of 
the circle hook requirement when targeting sharks. If shark anglers 
were permitted to land sharks incidentally caught on J-hooks, they 
could continue to fish exclusively with J-hooks and simply claim any 
shark they catch was caught incidentally. As such, NMFS has determined 
that requiring the release of all sharks caught on J-hooks is essential 
to the enforcement of the circle hook requirement.
    Comment 49: NMFS received comments suggesting that the circle hook 
requirement be extended to all HMS recreational fisheries to reduce 
post-release mortality in all HMS fisheries.
    Response: The goal of Amendment 5b is to end overfishing of the 
dusky shark stock, and requiring the use of circle hooks when fishing 
for all tunas, billfish, or swordfish would not accomplish this goal. 
Furthermore, while there is evidence that circle hooks are effective in 
reducing dusky shark post-release mortality, not all studies have 
conclusively found that circle hooks significantly reduce post-release 
mortality for all HMS species across all HMS recreational fisheries. 
Also, NMFS heard during the public comment period that circle hooks are 
not appropriate for all fishing styles (e.g., deep drop fishing or 
trolling). While NMFS encourages anglers to adopt the use of circle 
hooks in a manner that appropriately contributes to the needed 
mortality reduction for dusky sharks, the Agency also recognizes that 
data and the conservation goals of the current action do not warrant a 
blanket extension of the circle hook requirement to all HMS 
recreational fisheries at this time.
    Comment 50: NMFS received comments requesting that circle hooks 
only be required on the lines targeting sharks, not all lines that are 
deployed. The commenters stated that at times fishermen may have 
multiple lines deployed, and only some of those lines are specifically 
targeting sharks.
    Response: Under the new circle hook alternative (A6d), HMS permit 
holders will only be required to use circle hooks when fishing for 
sharks, and this can be determined by the angler on a line-by-line 
basis. Circle hooks are required for any line that is targeting sharks. 
Anglers will be required to release any sharks incidentally caught on 
lines with J-hooks targeting other species. As such, HMS anglers will 
have to weigh their desire to use J-hooks against their desire to 
retain incidentally-caught sharks, and make their hook choices 
accordingly.
    Comment 51: NMFS received a comment requesting the requirement of 
barbless J-hooks instead of circle hooks for recreational fishermen.
    Response: While NMFS encourages anglers to use barbless hooks, 
which can allow easier releases, be they circle or J-hooks, NMFS does 
not have information indicating that barbless J-hooks provide better 
conservation benefits for sharks than do circle hooks. While barbless 
J-hooks could certainly be removed from a shark's jaw with less damage 
than a circle hook, barbless J-hooks would still have a higher 
probability of deep hooking, which is the larger concern for post-
release mortality of incidentally caught dusky sharks. As such, NMFS 
does not believe a requirement to use barbless J-hooks would accomplish 
the objectives of this action.
    Comment 52: NMFS received several comments, including from the 
Commonwealth of Massachusetts, opposing the circle hook requirement in 
New England offshore waters given the rare seasonal occurrence of dusky 
sharks in the region. The commenters stated that tournament catch data 
collected in Massachusetts from 1987-2014 indicated low dusky 
interactions off Massachusetts with the majority of shark catch 
consisting of blue, shortfin mako, and common thresher sharks. 
Additionally, commenters noted studies that suggest a lack of evidence 
for reducing deep-hooking of shark species commonly caught in New 
England waters such as shortfin mako sharks, thresher sharks, and 
porbeagle sharks. Commenters, including the Commonwealth of 
Massachusetts, requested that NMFS set a demarcation line if the circle 
hook requirement is implemented. Some commenters noted a demarcation 
line in the vicinity of Shinnecock, NY (40[deg]50'25'' N.) extending to 
the east. Additionally, the Commonwealth of Massachusetts noted a 
demarcation line extending southeast from the eastern tip of Long 
Island, NY.
    Response: NMFS agrees that measures to reduce dusky shark mortality 
would have little utility in areas beyond dusky sharks' range. For 
Alternative A6d, NMFS undertook an analysis of available data to 
determine the northern extent of the dusky shark range. Based on the 
analysis, NMFS has determined that, at this time, dusky sharks are not 
found north of 41[deg]43' N. latitude, located around the southeastern 
edge of Cape Cod. Although fishermen fishing for and retaining sharks 
north of this line will need to obtain a shark endorsement, shark 
fishermen will not need to use circle hooks. This line is somewhat 
north of some suggestions; however, the line was placed in a location 
to ensure that all dusky sharks caught in the recreational shark 
fishery are given the best odds of post-release survival. Dusky shark 
distribution will be examined periodically, and if the dusky shark's 
range expands northward (e.g., as a result of climate change or as 
result of the species rebuilding), the boundary line may be moved in a 
future regulatory action.
    Comment 53: NMFS received comments suggesting that the economic 
impact of the proposed dusky measures for New England recreational, 
Charter/Headboat, or Atlantic tunas General category permit holders 
were not considered. Requiring the release of mako sharks incidentally 
caught on J-hooks would further negatively impact these permit holders.
    Response: NMFS fully analyzed the economic impacts (refer to 
Chapters 4-7 of the FEIS) and concluded that it expects the economic 
impacts of the circle hook requirement to be minimal. Sharks that are 
incidentally caught are by definition not the primary target species of 
the trip, and thus should not be a major driving decision in a charter 
client's decision to go on the trip. However, to further minimize the 
potential impacts outside of the dusky shark's range, NMFS has revised 
the alternative so that it will exempt anglers fishing north of 
41[deg]43' N. latitude from having to use circle hooks to land sharks. 
This line marks the northernmost range of the dusky shark based on the 
best available fishery independent data. HMS permit holders fishing 
north of this line will be permitted to land sharks caught on J-hooks 
and will not be required to use circle hooks when targeting sharks.
    Comment 54: NMFS received comments suggesting that an exemption to 
the circle hook requirement be made for shortfin mako and thresher 
sharks. The comments noted that these species are occasionally caught 
incidentally while trolling for other species with J-

[[Page 16494]]

hooks and, although not targeted with J-hooks, are retained because 
they are a ``trophy'' catch.
    Response: As mentioned in previous comment responses, NMFS has 
modified its circle hook alternative to exempt shark anglers from the 
requirement to use circle hooks in New England waters north of 
41[deg]43' N. latitude. As such, anglers fishing north of this line 
will be allowed to retain sharks caught on J-hooks. Shortfin mako and 
thresher sharks are among the most commonly targeted sharks in the 
Atlantic. MRIP data in the Mid-Atlantic region, where dusky shark 
interactions are most frequent, shows that many trips where dusky shark 
interactions are reported are on trips targeting mako sharks. As such, 
exempting anglers targeting shortfin mako and thresher sharks from the 
circle hook requirement would greatly reduce its ability to meet the 
conservation goals of this action.
F. Commercial Alternatives
    Comment 55: Numerous commenters, including the States of North and 
South Carolina, stated that the requirement to release a shark by 
cutting the leader no more than three feet from the hook as specified 
in Alternative B3 should be modified to provide an exemption for 
situations when the safety of the fishermen is in question. For 
example, of particular concern were situations when the fishermen are 
working from a vessel with a high gunwale in heavy seas, or situations 
where a tight line may recoil back at the fisherman after cutting the 
line. Some commenters suggested the ``three feet or less'' language 
should be removed so that the alternative simply states the leader 
should be cut as close to the hook as safely possible.
    Response: NMFS agrees that there may be times when it is unsafe to 
cut a leader within three feet of the hook. Each of the conditions and 
gear attributes described in these comments could reduce the 
feasibility of cutting the leader three feet or less away from the 
hook. For these reasons, NMFS has changed the preferred alternative in 
this final action to require releasing of sharks not to be retained by 
using a dehooker or by cutting the leader/gangion less than three feet 
from the hook as safely as practicable. As described below, removal of 
as much fishing gear as possible, in as safe a manner as possible, 
should increase post-release survival of sharks while also addressing 
safety concerns for fishermen onboard the vessel.
    Comment 56: Several commenters expressed that NMFS should encourage 
commercial fishermen to follow the status quo and not create new 
specifications or require new gear regarding the release of sharks. 
Fishermen currently have safe handling and release protocols, they 
attend safe handling and release workshops on a regular basis, and they 
carry the necessary gear on the fishing vessel to release all non-
target catch.
    Response: NMFS agrees that commercial fishermen currently have gear 
and protocols onboard that specify the handling and safe release of 
non-target species and bycatch. As explained in the comment below, NMFS 
prefers not to specify a certain type of dehooker or line cutter as 
commercial fishermen most likely already have the necessary gear 
onboard. However, while commercial fishermen are required to release 
marine mammals, sea turtles, and smalltooth sawfish, and release all 
HMS that are not retained in a manner that will ensure maximum 
probability of survival without removing the fish from the water, 
Alternative B3 specifically addresses all sharks that are not retained, 
as the identification of sharks is often difficult, especially while 
sharks are still in the water. Removal of gear is known to increase 
post-release survival for other species, such as sea turtles and 
thresher sharks. While NMFS recognizes that hooks may not be removed 
from sharks due to safety concerns during certain conditions, NMFS 
encourages commercial fishermen to remove as much gear as safely 
possible. This could help prevent situations where the sharks' tails 
become entangled in the gear or the gear becomes wrapped around the 
sharks' bodies impeding their ability to feed and/or swim. Research on 
other pelagic species indicates that the more gear that is removed, the 
higher the post-release survival. Thus, under this alternative, 
fishermen will be required to release sharks in a manner that removes 
either all or most of the gear given safe handling and release 
protocols and gear that commercial fishermen currently possess.
    Comment 57: Another commenter stated that using a thresher shark 
study estimate for reduction in post-release mortality due to reduced 
trailing gear as a proxy for dusky shark impacts is not appropriate and 
that dusky-specific estimates are required.
    Response: While NMFS agrees it would be ideal to have a dusky-
specific estimate to quantify the potential decrease in mortality that 
would be associated with the removal of gear, current research on this 
does not exist. In the absence of that research, NMFS feels it is most 
logical to use research on similar species, such as thresher sharks and 
smalltooth sawfish, as well as information for sea turtles and marine 
mammals, as proxies for estimating mortality reductions, because that 
currently represents the best available scientific information.
    Comment 58: In regard to the requirement to use dehooking devices 
when releasing sharks, a commenter said NMFS should specifically 
require use of the ``I'' type dehooker device instead of the ``Z'' type 
device, as the commenter contends the latter is much more difficult and 
dangerous to use properly.
    Response: At this time, NMFS prefers not to specify the type of 
dehooker fishermen are required to use when releasing sharks. Although 
different dehooking devices may provide advantages in certain 
situations, NMFS leaves dehooker type to the discretion of fishermen.
    Comment 59: Commenters, including States of North Carolina and 
Texas, and the SAFMC, generally supported Alternative B9, which 
requires the use of circle hooks by shark directed permit holders in 
the bottom longline fishery. The State of South Carolina also supported 
the alternative, but stated that the alternative should be modified to 
specifically require the use of non-offset, non-stainless circle hooks. 
Other commenters also requested that NMFS be more specific about the 
type of circle hooks, specifically, non-offset, non-stainless steel 
circle hooks should be required. Another commenter supported 
Alternative B9 and suggested that such hooks should be required for 
incidental shark permit holders in addition to directed shark permit 
holders. Other commenters stated that circle hooks should only be 
required when targeting small or large coastal sharks, allowing the 
continued use of J-hooks when targeting non-shark species.
    Response: NMFS agrees that requiring circle hooks in the directed 
bottom longline shark fishery should help reduce the mortality of 
incidentally caught dusky sharks because individuals will be released 
in better condition with a better chance of survival. Regarding the 
suggestion of using non-stainless steel hooks, current regulations 
already require that bottom longline fishermen use non-stainless steel, 
corrodible hooks. Regarding the suggestion of using non-offset circle 
hooks, NMFS disagrees. The pelagic longline fishery is allowed to use 
some circle hooks that are offset less than 10[deg] in order to allow 
the hooks to be baited. Because there is overlap between the fishermen 
using pelagic longline and bottom longline gear and because circle 
hooks are required in other fisheries and

[[Page 16495]]

may have other requirements, to reduce conflict between regulations, 
NMFS has decided to allow fishermen to choose circle hook offset type 
at this time.
    The intent of the directed bottom longline shark fishery circle 
hook requirement is to reduce mortality of dusky sharks caught and 
released on bottom longline, one of the few commercial fisheries that 
does not have a circle hook requirement. Dusky sharks most often 
interact with bottom longline gear when the gear is fished in a manner 
meant to target sharks, as is shown in the large coastal shark and 
sandbar shark research fisheries. Some of the other non-HMS bottom 
longline fisheries that do not target sharks require non-stainless 
steel circle hooks and dehookers such as the South Atlantic snapper-
grouper bottom longline fishery and vessels participating in the Gulf 
of Mexico reef fish fishery when using natural bait. Many of these 
fishermen possess HMS incidental shark fishing permits (see Table 5.2 
in the FEIS), and therefore are most likely already using circle hooks 
when fishing in a bottom longline fishery and not targeting sharks; as 
such, any dusky sharks caught in these fisheries would experience the 
conservation benefit of circle hooks. Therefore, NMFS believes that 
requiring circle hooks for incidental shark permit holders is not 
necessary at this time. Directed shark permit holders fishing with 
bottom longline gear, however, will be required to use circle hooks 
regardless of the target species to make a clear distinction for the 
enforcement of the regulation. If directed shark permit holders were 
not targeting sharks, but fishing with J-hooks and still interacting 
with sharks, it would make the regulation difficult to enforce.
    Comment 60: Other commenters opposed the proposed alternative to 
implement circle hooks in the shark bottom longline fishery. One 
commenter stated that when fishing with J-hooks, he has no bycatch of 
other species, and the J-hook catches the majority of the sharks in the 
corner or side of the mouth, similar to circle hooks. The commenter 
noted that with circle hooks, bycatch rates of other non-HMS (snapper, 
snapper, etc.) rises dramatically no matter what size hook is used. 
That commenter further stated that in his experience sharks that 
swallow J-hooks are always sharks that can be kept legally. In 
addition, that commenter noted that sharks are easier to release on a 
J-hook than when on a circle hook; when on a J-hook, the sharks tend to 
release themselves if given enough line slack and are easier to dehook. 
The commenter is concerned that sharks caught on circle hooks are 
harder to release or cut off, and that the added time in releasing the 
shark could cause more stress on the shark.
    Response: NMFS disagrees. Recent research on pelagic longline and 
rod and reel indicate that circle hooks could reduce post-release 
mortality by approximately 40-63 percent. If those rates are comparable 
bottom longline gear, then that mortality reduction could occur in the 
portion of the bottom longline fishery that is converted from J-hooks 
to circle hooks (25 percent). Because the bottom longline fishery is 
observed to interact with hundreds of dusky sharks per year, then this 
measure is expected to significantly contribute to the overall 
mortality reduction of 35 percent. Gulack et al., suggests that the 
typical large J-hook used in commercial shark fishing keeps sharks from 
easily swallowing the hooks, resulting in no significant difference in 
shark mortality when compared to circle hooks. However, because circle 
hook use did not reduce the catchability of sharks compared to J-hooks, 
the requirement of circle hooks in the shark bottom longline fishery 
could prevent commercial fishermen from using smaller J-hooks that 
could be swallowed by sharks. This research also showed that keeping 
sharks in the water that are not retained would likely increase post-
release survival.
    In addition, data from the observer program in 2015 indicate that 
11 directed shark trips with 16 observed shark hauls resulted in only 
22 non-HMS fish caught (3 percent of total catch) and 75 percent of 
these sets used circle hooks. In 2014, 22 hauls on 14 directed shark 
trips were observed targeting coastal sharks in the southern Atlantic. 
During those trips only 11 non-HMS fish were caught (less than 1 
percent) and 63.6 percent of these sets used circle hooks. Thus, 
bycatch of non-target species when using circle hooks does not seem to 
be a significant issue and would not offset the potential conservation 
benefit to dusky sharks and other non-target species.
    Finally, in terms of removing circle hooks versus J-hooks from 
sharks, the current dehooking devices required to be carried by bottom 
longline fishermen are designed to work well for circle hooks when used 
properly. When the hook is in the jaw, it may be easier to remove a J-
hook, but when J-hooks end up in the throat or gut of the animal, they 
are more difficult to remove than circle hooks.
    Comment 61: Numerous commenters expressed support for the 
relocation protocol in Alternative B6, but several, including the 
States of North Carolina, South Carolina, and Texas, and the SAFMC, 
questioned whether the one nautical mile minimum relocation distance 
was far enough to effectively avoid a highly migratory species like 
dusky sharks. Some commenters also stated that the relocation protocol 
was unenforceable. NMFS received a comment suggesting that a better 
approach would be to form a working group of fishermen, researchers, 
non-governmental organizations, and NMFS staff to develop a more 
scientifically sound, practical approach. This group could also work 
towards developing strategies to collect and analyze dusky shark 
interaction data, along with oceanographic data, that could be used to 
develop predictive models for dusky presence/absence.
    Response: HMS pelagic and bottom longline fishermen currently have 
to relocate one nautical mile when they interact with marine mammals or 
sea turtles, and bottom longline fishermen need to relocate one 
nautical mile when they interact with smalltooth sawfish. The decision 
to have these and gillnet fishermen move one nautical mile if they 
interact with dusky sharks mirrors the current regulations for marine 
mammals and sea turtles, which are also pelagic and capable of moving 
long distances, in the Atlantic HMS pelagic and bottom longline 
fisheries. These species tend to aggregate along discrete water 
temperature fronts or near certain bathymetric features, so moving away 
from these features or water conditions, even relatively short 
distances (e.g., 1 nm), can reduce the potential for additional 
interactions. Like dusky sharks, sea turtles, marine mammals, and 
sawfish can also move large distances in short periods of time; 
however, the direction of the relocation away from the conditions where 
an interaction took place is likely more important than the distance 
alone (e.g., moving 1 nm to a deeper depth would likely have more 
effect than moving 1 nm along the same depth where an interaction 
occurred). Based on this information, we expect 1 nm will also be 
appropriate for dusky sharks, while maintaining consistency with 
existing relocation regulations for other species and therefore 
encouraging compliance. We are encouraging fishermen to move more than 
1 nm when appropriate given the local conditions as an additional 
precautionary measure.
    Comment 62: One commenter suggested the relocation protocol should 
also be extended to non-HMS fisheries that also interact with dusky 
sharks.
    Response: As detailed in Section 1.2 of the FEIS, there are very 
small amounts of dusky shark bycatch in non-

[[Page 16496]]

HMS fisheries. Implementing relocation protocols in those fisheries 
would provide very little conservation benefit for dusky sharks. 
However, NMFS will work with states and Fishery Management Councils, 
and Commissions, as appropriate, to suggest commensurate changes in 
other fisheries that interact with dusky sharks.
    Comment 63: A commenter expressed opposition to Alternative B6 on 
the grounds that the relocation protocol would be too burdensome on 
longline fishing vessels, and would ultimately require them to move so 
far away from where they are fishing that it would negatively impact 
them economically. Conversely, other commenters indicated that 
commercial fishers already practice a relocation protocol within the 
fleet and that they actively avoid sharks, such as dusky sharks, as the 
sharks tend to tear up their gear.
    Response: NMFS anticipates that the relocation protocol should have 
minimal costs to fishermen given it only requires them to move one 
nautical mile after a set is complete, and this requirement is similar 
to the requirement already in place for several protected species. 
Several fishermen commented that many members of the HMS commercial 
fleet are already practicing dusky shark avoidance so the costs to them 
should be neutral. Furthermore, the outlined communications protocol 
that will be required by this alternative should help many fishermen 
avoid setting their gear in areas containing dusky shark in the first 
place. Finally, the costs associated with Alternative B6 should be 
minimal when compared to other alternatives that were considered (e.g., 
hotspot closures, closing the pelagic longline fishery, etc.).
    Comment 64: A commenter suggested that NMFS and fishermen should 
collaborate with the U.S. Coast Guard to broadcast the presence of 
dusky sharks in an area to other vessels to help facilitate the fleet 
communication and relocation protocol.
    Response: Several fishermen commented that many members of the HMS 
commercial fleet are already practicing dusky shark avoidance as 
interacting with the sharks tends to tear up their gear. In addition, 
the availability of satellite phones has allowed the fleet to 
communicate effectively with one another. Other fisheries have 
developed more formal protocols for fleet avoidance of certain species, 
such as yellowtail flounder. However, they use third-party vendors to 
disseminate such notifications, not the U.S. Coast Guard. If the 
current communication and relocation protocol proves to be ineffective, 
then NMFS can reevaluate a more structured approach in the future. 
However, at this time, it likely that fishermen would have more 
immediate information as to where dusky sharks are interacting with 
fishing gear and are thus the best source of information on dusky 
presence.
    Comment 65: Commenters provided broad support for the addition of a 
shark identification and safe handling section to the current protected 
species safe handling workshops under Alternative B5. Some commenters 
suggested the workshops should also be required of state-licensed 
commercial shark fishermen, and that opportunities to participate in 
the workshops should be made available to recreational shark anglers as 
well.
    Response: Both recreational and commercial fishers are welcome to 
attend the safe handling, release, and identification workshops held by 
NMFS. NMFS recommends that all fishermen register to check for 
availability ahead of a workshop, especially if they are not required 
to take such a workshop. More information on the safe handling, 
release, and identification workshops can be found at: http://www.nmfs.noaa.gov/sfa/hms/compliance/workshops/protected_species_workshop/requirements.html.

Changes From the Proposed Rule (81 FR 71672; October 18, 2016)

    As described above, as a result of public comment and additional 
analyses, NMFS made changes from the proposed rule, as described below.
    1. Circle hook requirement in the recreational shark fishery 
(Sec. Sec.  635.4(b)(1), (c)(1), and (c)(5); 635.21 (f)(2), (f)(3), 
(k)(1), and (k)(2); 635.22(c)(1); 635.71 (d)(22) and (d)(23)). NMFS 
proposed to require the use of circle hooks by all HMS permit holders 
fishing for sharks recreationally, which the proposed rule defined as 
when using natural baits and using wire or heavy (200 lb or greater 
test) monofilament or fluorocarbon leaders. Based on public comment and 
updated analyses regarding dusky shark distribution, NMFS modified this 
measure in three ways: First, the final rule now specifies the type of 
circle hook required, which is non-offset, non-stainless steel circle 
hooks; second, the final rule now specifies that this measure only 
applies south of 41[deg]43' N. latitude, which includes the geographic 
range of dusky sharks but does apply the requirement to fishermen north 
of the dusky shark's range; and third, it now removes the gear-based 
definition of shark fishing. Under the modified measure, all HMS 
permitted fishermen within the specified geographic area who wish to 
fish for or retain sharks must use circle hooks, regardless of hook 
size or leader material, with limited exceptions when fishing with 
artificial lures or flies. Artificial flies and lures were excluded 
because fishing with those gears are not likely to gut-hook sharks, the 
result that the measure is designed to avoid.
    2. Shark endorsement requirement in the recreational shark fishery 
(Sec.  635.4(j)(4)). In the proposed rule, NMFS clearly indicated that 
fishermen could add the shark endorsement to their recreational permit 
at any time during the fishing year. As a result of public comment, in 
the final rule, NMFS is also allowing fishermen to remove the shark 
endorsement from their recreational permit at any time during the 
fishing year. Removal of the shark endorsement would mean that sharks 
could no longer be fished for, retained, or landed by persons aboard 
that vessel.
    3. Dusky shark release methods in the pelagic longline fishery 
(Sec.  635.21(c)(6)(i)). NMFS proposed the requirement that fishermen 
with an Atlantic shark limited access permit with pelagic longline gear 
onboard must release all sharks not being retained using a dehooker or 
cutting the gangion less than three feet from the hook. During the 
public comment period, NMFS heard from some commercial fishermen that 
this requirement could raise safety at sea concerns because gangions 
can sometimes snap back and hit crew when the gangion is cut while 
under tension. In response, NMFS has slightly modified the requirement 
to specify that if the fisherman chooses to cut the gangion rather than 
use a dehooker, they should cut the gangion less than three feet from 
the hook, as safely as practicable.
    4. Fleet communication and relocation protocol (Sec.  
635.21(c)(6)(ii), (d)(2)(iii), and (g)(5)). NMFS proposed the 
requirement that fishermen with an Atlantic shark limited access permit 
using pelagic longline, bottom longline, or gillnet gear that catch a 
dusky shark must both broadcast the location of the dusky shark over 
the radio to other fishing vessels in the surrounding area and move at 
least 1 nmi from the reported location of the dusky shark catch. As a 
result of public comment that questioned whether 1 nmi was far enough 
to effectively avoid a highly migratory species like dusky sharks, the 
final rule still specifies that vessels must move at least 1 nmi but 
encourages fishermen to move more than 1 nmi when appropriate given the 
local conditions as an additional

[[Page 16497]]

precautionary measure. Additionally, in the regulations, NMFS has 
clarified that the requirement to broadcast the location of the dusky 
shark over the radio should be done as soon as practicable, whereas the 
proposed rule did not specify anything related to timing of the 
broadcast.
    5. Workshop title clarification (Sec.  635.8(a)). In this final 
rule, NMFS clarifies that the name of a required workshop is ``Safe 
Handling, Release, and Identification Workshop.'' In the proposed rule, 
this workshop was erroneously titled the ``Safe Handling, Release, 
Disentanglement, and Identification Workshop.'' Although this 
correction was not included in the proposed rule, it is an 
administrative change and will not have any practical environmental, 
social, or economic impacts and is included for clarity to the 
regulated community.

Classification

    The Assistant Administrator for Fisheries (AA) determined that 
Amendment 5b to the 2006 Consolidated HMS FMP is necessary for the 
conservation and management of Atlantic dusky sharks and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    NMFS prepared an FEIS for Amendment 5b to the 2006 Consolidated HMS 
FMP. The FEIS was filed with the Environmental Protection Agency on 
February 17, 2017. A Notice of Availability was published on February 
24, 2017 (82 FR 11574). In approving Amendment 5b to the 2006 
Consolidated HMS FMP on March 28, 2017, NMFS issued a ROD identifying 
the selected alternatives. A copy of the ROD is available from the HMS 
Management Division (see ADDRESSES).
    This final rule has been determined to be not significant under 
E.O. 12866.

Paperwork Reduction Act

    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) that has been approved by 
OMB under control number 0648-0327. Public reporting burden for 
Atlantic HMS Permit Family of Forms is estimated to average 34 minutes 
per respondent for initial permit applicants, and 10 minutes for permit 
renewals, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Send comments 
regarding these burden estimates or any other aspect of this data 
collection, including suggestions for reducing the burden, to NMFS (see 
ADDRESSES) and by email to [email protected], or fax to 202-
395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Summary of the Final Regulatory Flexibility Analysis

    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, our responses to those 
comments, and a summary of the analyses completed to support the 
action. The full FRFA is available from NMFS (see ADDRESSES). A summary 
is provided below.
A. Statement of the Need for and Objectives of This Final Rule
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
a succinct statement of the need for and objectives of the rule. 
Chapter 1.0 of the Amendment 5b FEIS fully describes the need for and 
objectives of this final rule. In general, the objective of this final 
rule is to end overfishing of dusky sharks and to rebuild the stock in 
the timeframe recommended by the assessment update.
    Under the Magnuson-Stevens Act, NMFS must, consistent with ten 
National Standards, manage fisheries to prevent overfishing while 
achieving, on a continuing basis, the optimum yield for each fishery. 
Additionally, any management measures must be consistent with other 
laws including, but not limited to, NEPA, the ESA, the MMPA, and the 
CZMA.
B. A Summary of the Significant Issues Raised by the Public Comments in 
Response to the Initial Regulatory Flexibility Analysis, a Summary of 
the Agency's Assessment of Such Issues, and a Statement of Any Changes 
Made in the Rule as a Result of Such Comments
    Section 604(a)(2) of the RFA requires a summary of the significant 
issues raised by the public comments in response to the IRFA, a summary 
of the assessment of the Agency of such issues, and a statement of any 
changes made in the rule as a result of such comments. Section 
604(a)(3) of the RFA requires a response to any comments filed by the 
Chief Counsel for Advocacy of the Small Business Administration in 
response to the proposed rule, and a statement of any chances made to 
the proposed rule as a result of the comments. NMFS received many 
comments on the proposed rule and DEIS during the public comment 
period. Summarized public comments and the Agency's responses to them, 
including changes as a result of public comment, are included above. 
The general economic concerns raised can be found in comments 33, 41, 
44, 53, and 63. NMFS did not receive comments specifically on the IRFA. 
NMFS did not receive any comments filed from the Chief Council for 
Advocacy in response to the proposed rule.
C. A Description and an Estimate of the Number of Small Entities to 
Which the Final Rule Would Apply
    Section 604(a)(4) of the RFA requires a description and estimate of 
the number of small entities to which the final rule would apply. For 
RFA purposes only, NMFS has established a small business size standard 
for businesses, including their affiliates, whose primary industry is 
commercial fishing (see 50 CFR 200.2). A business primarily engaged in 
commercial fishing (NAICS code 11411) is classified as a small business 
if it is independently owned and operated, is not dominant in its field 
of operation (including its affiliates), and has combined annual 
receipts not in excess of $11 million for all its affiliated operations 
worldwide. The Small Business Administration (SBA) has established size 
standards for all other major industry sectors in the U.S., including 
the scenic and sightseeing transportation (water) sector (NAICS code 
487210, for-hire), which includes charter/party boat entities. The 
Small Business Administration (SBA) has defined a small charter/party 
boat entity as one with average annual receipts (revenue) of less than 
$7.5 million.
    This final rule is expected to directly affect commercial pelagic 
longline, bottom longline, shark gillnet, and recreational shark 
fishing vessels that possess HMS permits and are actively fishing. For 
the pelagic longline vessels, these are vessels that possess an 
Atlantic shark limited access permit, an Atlantic swordfish limited 
access permit, and an Atlantic Tunas Longline category permit. Because 
pelagic longline fishermen must hold all three permits in order to 
fish, for the purposes of this discussion, NMFS will focus on Atlantic 
Tunas Longline category permit holders. Regarding those entities that 
would be directly affected by the preferred commercial management

[[Page 16498]]

measures, the average annual revenue per active pelagic longline vessel 
is 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 less than $1.9 million, well below the NMFS 
small business size standard for commercial fishing businesses of $11 
million. Other non-longline HMS commercial fishing vessels typically 
generally earn less revenue than pelagic longline vessels. Therefore, 
NMFS considers all Atlantic HMS commercial permit holders to be small 
entities (i.e., they are engaged in the business of fish harvesting, 
are independently owned or operated, are not dominant in their field of 
operation, and have combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide). The preferred 
commercial alternatives would apply to the 280 Atlantic tunas Longline 
category permit holders and 224 directed shark permit holders. Of these 
280 permit holders, 136 have Individual Bluefin Quotas (IBQ) shares, 
although all properly permitted vessels may lease quota through the IBQ 
system to go commercial pelagic longline fishing.
    For the recreational management measures, most commonly, the 
preferred management measures would only directly apply to small 
entities that are Charter/Headboat permit holders that provide for-hire 
trips that target or retain sharks. Other HMS recreational fishing 
permit holders are considered individuals, not small entities for 
purposes of the RFA because they are not engaged in commercial fishing. 
Additionally, while Atlantic Tunas General category and Swordfish 
General commercial permit holders hold commercial permits and are 
usually considered small entities, the preferred management measures 
would only affect them when they are fishing under the recreational 
regulations for sharks during a registered tournament, and NMFS is not 
considering them small entities for this rule because they are not 
engaged in commercial activity during those tournaments.
    Vessels with the HMS Charter/Headboat category permit are for-hire 
vessels. These permit holders can be regarded as small entities for RFA 
purposes (i.e., they are engaged in the business of fish harvesting, 
are independently owned or operated, are not dominant in their field of 
operation, and have average annual revenues of less than $7.5 million). 
Overall, the recreational alternatives would impact the portion of the 
3,596 HMS Charter/Headboat permit holders who fish for or retain 
sharks.
    NMFS has determined that the measures in Amendment 5b will not 
likely directly affect any small organizations or small government 
jurisdictions defined under RFA, nor will there be disproportionate 
economic impacts between large and small entities. Furthermore, there 
will be no disproportionate economic impacts among the universe of 
vessels based on gear, home port, or vessel length.
    More information regarding the description of the fisheries 
affected, and the categories and number of permit holders, can be found 
in Chapter 3.0 of the Amendment 5b FEIS.
D. Description of the Projected Reporting, Record-Keeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Would Be Subject to the 
Requirements of the Report or Record
    Section 604(a)(5) of the RFA requires Agencies to describe any new 
reporting, record-keeping, and other compliance requirements. One of 
the measures in Amendment 5b will result in reporting, record-keeping, 
and compliance requirements that may require new Paperwork Reduction 
Act (PRA) filings and two of the measures would modify compliance 
requirements. NMFS estimates that the number of small entities that 
would be subject to these requirements would include the Atlantic tuna 
Longline category (280), Directed and Incidental Shark Limited Access 
(224 and 275, respectively), and HMS Charter/Headboat category (3,596) 
permit holders.

Recreational Alternatives

    Alternative A2 will require recreational fishermen targeting shark 
to obtain a shark endorsement in addition to other existing permit 
requirements. Obtaining the shark endorsement will be included in the 
online HMS permit application and renewal processes and will require 
the applicant to complete a quiz focusing on shark species 
identification. The applicant will simply need to indicate the desire 
to obtain the shark endorsement after which he or she will be directed 
to an online quiz that will take minimal time to complete. Adding the 
endorsement to the permit and requiring applicants to take the online 
quiz to obtain the endorsement will require a modification to the 
existing PRA for the permits.

Commercial Measures Alternatives

    Alternative B5 will require completion of shark identification and 
fishing regulation training as a new part of the Safe Handling and 
Release Workshops for HMS pelagic longline, bottom longline, and shark 
gillnet vessel owners and operators that they are already required to 
take on a 3-year basis. The training course will provide information 
regarding shark identification and regulations, as well as best 
practices to avoid interacting with dusky sharks and how to minimize 
mortality of dusky sharks caught as bycatch. Compliance with this 
course requirement will be mandatory as a condition for permit renewal. 
Certificates will be issued to all commercial pelagic longline, bottom 
longline, and gillnet vessel owners and operators indicating compliance 
with this requirement, and the certificates will be required for permit 
renewal.
    Alternative B6 will require that all vessels with an Atlantic shark 
commercial permit and fishing with pelagic longline, bottom longline, 
or shark gillnet gear abide by a dusky shark fleet communication and 
relocation protocol. The protocol will require vessels to report the 
location of dusky shark interactions over the radio as soon as 
practicable to other pelagic longline, bottom longline, or shark 
gillnet vessels in the area and that subsequent fishing sets on that 
fishing trip could be no closer than 1 nautical mile (nm) from where 
the encounter took place.
E. Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and the Reason That Each One of the Other 
Significant Alternatives to the Rule Considered by the Agency Which 
Affect Small Entities Was Rejected
    Section 604(a)(6) of the RFA requires Agencies to describe any 
alternatives to the preferred alternatives which accomplish the stated 
objectives and which minimize any significant economic impacts. The 
implementation of this action should not result in significant adverse 
economic impacts to individual vessels. These impacts are discussed 
below and in Chapter 4.0 of the FEIS. 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

[[Page 16499]]

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 amendment, consistent with 
all legal requirements, 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 and fourth categories described 
above. Under the third category, ``use of performance rather than 
design standards,'' NMFS considers Alternative B5, which will provide 
additional training to pelagic longline, bottom longline, and shark 
gillnet fishermen, to be a performance standard rather than a design 
standard. As described below, NMFS analyzed several different 
alternatives in this proposed rulemaking and provides the rationale for 
identifying the preferred alternative to achieve the desired objective.
    In this rulemaking, NMFS considered two different categories of 
alternatives. The first category, recreational alternatives, covers 
seven main alternatives that address various strategies of reducing 
dusky shark mortality in the recreational fishery. The second category 
of alternatives, commercial measures, considers nine main alternatives 
that address various strategies of reducing dusky shark mortality in 
the commercial fishery.
    The potential impacts these alternatives may have on small entities 
have been analyzed and are discussed in the following sections. The 
preferred alternatives include: Alternative A2, Alternative A6d, 
Alternative B3, Alternative B5, Alternative B6, and Alternative B9. The 
economic impacts that would occur under these preferred alternatives 
were compared with the other alternatives to determine if economic 
impacts to small entities could be minimized while still accomplishing 
the stated objectives of this rule.

1. Recreational Alternatives

Alternative A1

    Alternative A1, the no action alternative, would not implement any 
management measures in the recreational shark fishery to decrease 
mortality of dusky sharks, likely resulting in direct, short- and long-
term neutral economic impacts. Because there would be no changes to the 
fishing requirements, there would be no economic impacts on small 
entities. If more restrictive measures are required in the long-term 
under MSA or other statutes such as the Endangered Species Act, 
moderate adverse economic impacts may occur. However, overfishing would 
continue under this alternative, thus, NMFS does not prefer this 
alternative at this time.

Alternative A2--Preferred Alternative

    Under Alternative A2, a preferred alternative, HMS Angling and 
Charter/Headboat permit holders would be required to obtain a shark 
endorsement, which requires completion of a short online shark 
identification and fishing regulation training course in order to 
retain sharks. Obtaining the shark endorsement would be included in the 
online HMS permit application and renewal processes and would require 
the applicant to complete a training course focusing on shark species 
identification and fishing regulations. This alternative would likely 
result in no substantive economic impacts because there would be no 
additional cost to the applicant and only a small additional investment 
in time. Obtaining the shark endorsement would be a part of the normal 
HMS permit application or renewal. The applicant would simply need to 
indicate the desire to obtain the shark endorsement after which he or 
she would be directed to a short online training course that would take 
minimal time to complete. The goal of the training course is to help 
prevent anglers from landing prohibited or undersized sharks, and thus, 
help rebuild stocks. Furthermore, the list of shark endorsement holders 
would allow for more targeted surveys and outreach, likely increasing 
the reliability of recreational shark catch estimates. This preferred 
alternative helps achieve the objectives of this rule while minimizing 
any significant economic impacts on small entities.

Alternative A3

    Alternative A3 would have required participants in the recreational 
shark fishery (Angling and Charter/Headboat permit holders) to carry an 
approved shark identification placard on board the vessel when fishing 
for sharks. This alternative would likely result in short- and long-
term minor economic impacts. The cost of obtaining a placard, whether 
by obtaining a pre-printed one or self-printing, would be modest. To 
comply with the requirement of this alternative, the angler would need 
to keep the placard on board the vessel when fishing for sharks and, 
because carrying other documents such as permits and boat registration 
is already required, this is unlikely to be a large inconvenience. This 
alternative would have slightly more economic impacts than Alternative 
A2 on small entities and would likely be less effective than the 
training course in Alternative A2.

Alternative A4

    Under Alternative A4, NMFS would extend the prohibition on the 
retention of ridgeback sharks to include the rest of the ridgeback 
sharks, namely oceanic whitetip, tiger sharks, and smoothhound sharks, 
all of which are currently allowed to be retained by recreational shark 
fishermen (HMS Angling and Charter/Headboat permit holders). While this 
alternative would simplify compliance for the majority of fishermen 
targeting sharks, it could also potentially have adverse economic 
impacts for a small subset of fishermen that target oceanic whitetip, 
tiger, and smoothhound sharks. These adverse impacts would be quite 
small, however, for oceanic whitetip and tiger sharks. However, based 
on MRIP data, this alternative could have considerable impacts on 
fishermen targeting smoothhound sharks. Presumably, state-permitted 
anglers that do not hold an HMS federal permit are responsible for some 
of the catch and, for species such as smooth dogfish that are often 
found almost exclusively in state waters, anglers with only state 
permit may be responsible for most of the catch. Recreational fishermen 
with only state-issued permits would still be able to retain 
smoothhound sharks (those that hold an HMS permit must abide by federal 
regulations, even in state waters). Thus, Alternative A4 would likely 
result in both direct short- and long-term, minor adverse economic 
impacts on HMS Charter/Headboat operators if prohibiting landing of 
additional shark species reduces demand for fishing charters. While 
this alternative may have greater economic impacts than Alternative A3, 
it may be effective at achieving the objective of reducing dusky shark 
mortality in the recreational fishery.

Alternative A5

    Under Alternative A5, the minimum recreational size limit for 
authorized shark species, except for Atlantic sharpnose, bonnethead, 
and hammerhead (great, scalloped, and smooth) sharks, would increase 
from 54 to 89 inches fork length. Under this alternative, increasing 
the recreational

[[Page 16500]]

size limit would likely result in both direct short- and long-term, 
moderate adverse economic impacts for recreational fishermen, charter/
headboat operators, and tournament operators. Because many shark 
species have a maximum size below an 89-inch size limit, there could be 
reduced incentive to fish recreationally for sharks due to the 
decreased potential to legally land these fish. Increasing the minimum 
size for retention would also impact the way that tournaments and 
charter vessels operate. While the impacts of an 89-inch fork length 
minimum size on tournaments awarding points for pelagic sharks may be 
lessened because these tournament participants target larger sharks, 
such as shortfin mako, blue, and thresher, that grow to larger than 89 
inches fork length, this may not be the case for tournaments targeting 
smaller sharks. Tournaments that target smaller sharks, especially 
those that target shark species that do not reach sizes exceeding 89 
inches fork length such as blacktip sharks, may be heavily impacted by 
this alternative. Reduced participation in such tournaments could 
potentially decrease the amount of monetary prizes offered to winners. 
Thus, implementation of this management measure could significantly 
alter the way some tournaments and charter vessels operate, or reduce 
opportunities to fish for sharks and drastically reduce general 
interest and demand for recreational shark fishing, which could create 
adverse economic impacts. For the aforementioned reasons, NMFS does not 
prefer this alternative at this time.

Alternative A6

    Under Alternative A6, circle hooks would be required for either all 
HMS permit holders fishing recreationally for sharks and all Atlantic 
HMS permit holders participating in fishing tournaments when targeting 
or retaining Atlantic sharks.

Alternative A6a

    Sub-alternative A6a would require the use of circle hooks by HMS 
permit holders with a shark endorsement whenever fishing with natural 
bait and wire or (200-pound test or greater) monofilament or 
fluorocarbon leader. Relative to the total cost of gear and tackle for 
a typical fishing trip, the cost associated with switching from J hooks 
to circle hooks is negligible. Thus, the immediate cost in switching 
hook type is likely minimal. However, there is conflicting indication 
that the use of circle hooks may reduce or increase CPUE resulting in 
lower catch of target species. In the event that CPUE is reduced, some 
recreational fishermen may choose not to fish for sharks or to enter 
tournaments that offer awards for sharks. Additionally, this 
alternative would also effectively require HMS permit holders with 
shark endorsements to use circle hooks when fishing for many non-shark 
species because wire and heavy monofilament leaders are commonly also 
used when fishing for swordfish, billfish, tuna, wahoo, mackerel, and 
other marine species. These missed recreational fishing opportunities 
could result in minor adverse economic impacts in the short- and long-
term. Given the effects this alternative would have on HMS permit 
holders while targeting non-shark species, NMFS does not prefer this 
alternative at this time.

Alternative A6b

    Sub-Alternative Ab6 is similar to A6a, but instead of requiring 
circle hooks when deploying natural bait while using a wire or heavy 
(200-pound test or greater) monofilament or fluorocarbon leader outside 
of a fishing tournament, it instead requires circle hooks when 
deploying a 5/0 or greater size hook to fish with natural bait outside 
of a fishing tournament. This use of the hook size standard to 
determine if the trip could be targeting sharks may result in more 
recreational trips requiring circle hooks than under alterative A6a, 
but many more of those trips might actually not be targeting sharks, 
but instead other large pelagic fish. The use of a heavy leader would 
be more correlated with angling activity that is targeting sharks.

Alternative A6c

    Sub-Alternative A6c is similar to A6a and A6b, but restricted to 
requiring the use of circle hooks by all HMS permit holders 
participating in fishing tournaments that bestow points, prizes, or 
awards for sharks. This alternative would impact a smaller universe of 
recreational fishermen, so the adverse impacts are smaller. However, 
given the limited scope of this requirement, the benefits to reducing 
dusky shark mortality via the use of circle hooks are also more 
limited.

Alternative A6d--Preferred Alternative

    Sub-Alternative A6d, a preferred alternative, is a new alternative 
similar to the above sub-alternatives that was formulated based in 
response to numerous public comments regarding the previously preferred 
alternative A6a. A6d would require the use of non-offset, non-stainless 
steel circle hooks by all HMS permit holders with a shark endorsement 
when fishing for sharks recreationally south of 41[deg]43' N. latitude, 
except when fishing with flies or artificial lures. On the one hand, 
this alternative would have less impact on HMS permit holders as it 
would limit the circle hook requirement to only those trips in which 
sharks are the target species, and would limit the requirement to 
waters south of Cape Cod so that it does not affect HMS permit holders 
fishing outside the dusky sharks known range. On the other hand, it 
would likely affect more HMS permit holders south of Cape Cod as fewer 
permit holders would be discouraged from acquiring the shark 
endorsement to avoid the circle hook requirement when fishing with wire 
or heavy monofilament or fluorocarbon leaders for non-shark species. 
Overall, the new alternative A6d is expected to have minor adverse 
economic impacts in the short- and long-term. However, A6d is the 
preferred alternative as it would restrict impacts to recreational 
fishing trips targeting sharks within the range of the dusky shark, and 
minimize unintended impacts that are not needed to meet the objectives 
of this rulemaking.

Alternative A7

    Alternative A7 would prohibit HMS permit holders from retaining any 
shark species. Recreational fishermen may still fish for and target 
authorized shark species for catch and release. The large number of 
fishermen who already practice catch and release and the catch and 
release shark fishing tournaments currently operating would not be 
impacted. However, prohibiting retention of sharks could have major 
impacts on fishing behaviors and activity of other recreational shark 
fishermen and reduce their demand for charter/headboat trips. Only 
allowing catch and release of authorized sharks in the recreational 
fishery could impact some fishermen that retain sharks recreationally 
and tournaments that award points for landing sharks. Thus, prohibiting 
retention of Atlantic sharks in the recreational shark fisheries could 
drastically alter the nature of recreational shark fishing and reduce 
incentives to fish for sharks.
    Additionally, with reduced incentive to fish for sharks, this could 
negatively impact profits for the HMS Charter/Headboat industry. 
Because there could be major impacts to the recreational shark 
fisheries from this management measure, Alternative A7 would likely 
have direct short- and long-term, moderate adverse economic impacts on 
small business entities.

[[Page 16501]]

2. Commercial Alternatives

Alternative B1

    Under Alternative B1, NMFS would not implement any measures to 
reduce dusky shark mortality in the commercial shark or HMS fisheries. 
Because no management measures would be implemented under this 
alternative, NMFS would expect fishing practices to remain the same and 
economic impacts to be neutral in the short-term. Dusky sharks are a 
prohibited species and fishermen are not allowed to harvest this 
species. Thus, even if dusky sharks continue to experience overfishing 
and the abundance declines as a result of this alternative, there would 
not be any economic impacts on the fishery in the short-term. If more 
restrictive measures are required in the long-term under MSA or other 
statutes such as the Endangered Species Act, moderate adverse economic 
impacts may occur.

Alternative B2

    Under Alternative B2, HMS commercial fishermen would be limited to 
750 hooks per pelagic longline set with no more than 800 assembled 
gangions onboard the vessel at any time. Based on average number of 
hooks per pelagic longline set data, the hook restriction in this 
alternative could have neutral economic impacts on fishermen targeting 
bigeye tuna, mixed tuna species, and mixed HMS species, because the 
average number of hooks used on pelagic longline sets targeting these 
species is slightly above or below the limit considered in this 
alternative. This alternative would likely have adverse economic 
impacts on fishermen targeting dolphin fish, because these fishermen on 
average use 1,056 hooks per set. If NMFS implemented this alternative, 
fishermen targeting dolphin fish with pelagic longline gear would have 
to reduce their number of hooks by approximately 30 percent per set, 
which may result in a similar percent reduction in set revenue or could 
result in increased operating costs if fishermen decide to offset the 
limited number of hooks with more fishing sets. Overall, Alternative B2 
would be expected to have short- and long-term minor adverse economic 
impacts on the pelagic longline fishery.

Alternative B3--Preferred Alternative

    Under Alternative B3, a preferred alternative, HMS commercial 
fishermen must release all sharks that are not being boarded or 
retained by using a dehooker, or by cutting the gangion no more than 
three feet from the hook. This alternative would have neutral to 
adverse economic impacts on commercial shark fishermen using pelagic 
longline gear. Currently, fishermen are required to use a dehooking 
device if a protected species is caught. This alternative would require 
this procedure to be used on all sharks that would not be retained, or 
fishermen would have to cut the gangion to release the shark. 
Currently, it is common practice in the pelagic longline fishery to 
release sharks that are not going to be retained (especially larger 
sharks) by cutting the gangion, but they usually do not cut the gangion 
so only 3 feet remain, so there might be a slight learning curve. Using 
a dehooker to release sharks in the pelagic longline fishery is a less 
common practice, therefore, there may be more of a learning curve that 
would make using this technique more time consuming and making fishing 
operations less efficient. Although this may be an initial issue, NMFS 
expects that these inefficiencies would be minimal and that fishermen 
would become adept in using a dehooker to release sharks over time 
given they are all adept at using a dehooker to release protected 
species. Thus, Alternative B3 would be expected to have short- and 
long-term neutral economic impacts on the pelagic longline fishery.

Alternative B4

    Under Alternative B4, NMFS considered various dusky shark hotspot 
closures for vessels fishing with pelagic longline gear. The hotspot 
closures considered are the same areas that were analyzed in Draft 
Amendment 5 and the A5b Predraft. These hotspot closure alternatives 
are located where increased levels of pelagic longline interactions 
with dusky sharks had been identified based on HMS Logbook data. During 
the months that hotspot closures are effective, Atlantic shark 
commercial permit holders (directed or incidental) would not be able to 
fish with pelagic longline gear in these areas.

Alternative B4a

    This alternative would define a rectangular area in a portion of 
the existing Charleston Bump time/area closure area, and prohibit the 
use of pelagic longline gear by all vessels during the month of May in 
that area. This alternative is expected to have moderate short- and 
long-term direct adverse economic impacts on 46 vessels that have 
historically fished in this Charleston Bump area during the month of 
May. This closure would result in the loss of approximately $15,250 in 
gross revenues per year per vessel assuming no redistribution of effort 
outside of the closed area.
    However, it is likely that some of the vessels that would be 
impacted by this hotspot closure would redistribute their effort to 
other fishing areas. Based on natural breaks in the percentage of sets 
vessels made inside and outside of this alternative's hotspot closure 
area, NMFS estimated that if a vessel historically made less than 40 
percent of its sets in the hotspot closure area, it would likely 
redistribute all of its effort. If a vessel made more than 40 percent 
but less than 75 percent of its sets in the hotspot closure area, it 
would likely redistribute 50 percent of its effort impacted by the 
hotspot closure area to other areas. Finally, if a vessel made more 
than 75 percent of its sets solely within the hotspot closure area, 
NMFS assumed the vessel would not likely shift its effort to other 
areas. Based on these individually calculated redistribution rates, the 
percentage of fishing in other areas during the gear restriction time 
period, the percentage of fishing in other areas during the hotspot 
closure time period, and the catch per unit effort for each vessel in 
each statistical area, NMFS estimated the potential landings associated 
with redistributed effort associated with fishing sets displaced by the 
hotspot closure area. The net loss in fishing revenues as a result of 
the Charleston Bump Hotspot May closure after considering likely 
redistribution of effort is estimated to be $8,300 per vessel per year. 
Alternative B4a would result in moderate short- and long-term adverse 
economic impacts as a result of restricting pelagic longline vessels 
from fishing in the Charleston Bump Hotspot May area, thus causing 
decreased revenues and increased costs associated with fishing in 
potentially more distant waters if vessel operators redistribute their 
effort.

Alternative B4b

    This alternative would prohibit the use of pelagic longline gear in 
the vicinity of the ``Hatteras Shelf'' area of the Cape Hatteras 
Special Research Area during the month of May where elevated levels of 
dusky shark interactions have been reported. This alternative is 
expected to have moderate short- and long-term direct adverse economic 
impacts on 42 vessels that have historically fished in this Hatteras 
Shelf Hotspot area during the month of May. The average annual revenue 
per vessel from 2008 through 2014 from all fishing sets made in this 
hotspot closure area has been approximately $9,980 during the month of 
May, assuming that fishing effort does not move to other areas. 
However, it is likely that some of the vessels that would be impacted 
by this hotspot closure would redistribute

[[Page 16502]]

their effort to other fishing areas. The net impact of the Hatteras 
Shelf Hotspot May closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $5,990 per vessel per year. 
Alternative B4b would result in moderate adverse economic impacts as a 
result of restricting pelagic longline vessels from fishing in the 
Hatteras Shelf Hotspot May area, thus causing decreased revenues and 
increased costs associated with fishing in potentially more distant 
waters if vessel operators redistribute their effort.

Alternative B4c

    This alternative would prohibit the use of pelagic longline gear in 
the vicinity of the ``Hatteras Shelf'' area of the Cape Hatteras 
Special Research Area during the month of June where elevated levels of 
dusky shark interactions have been reported.
    This alternative is expected to have moderate short- and long-term 
direct adverse economic impacts on 37 vessels that have historically 
fished in this Hatteras Shelf Hotspot area during the month of June. 
The average annual revenue from 2008 through 2014 from all fishing sets 
made in this hotspot closure area has been approximately $7,640 per 
vessel during the month of June, assuming that fishing effort does not 
move to other areas. However, it is likely that some of the vessels 
that would be impacted by this hotspot closure would redistribute their 
effort to other fishing areas. The net impact of the Hatteras Shelf 
Hotspot June closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $4,010 per vessel per year. 
Alternative B4c would result in moderate adverse economic impacts as a 
result of restricting pelagic longline vessels from fishing in the 
Hatteras Shelf Hotspot June area, thus causing decreased revenues and 
increased costs associated with fishing in potentially more distant 
waters if vessel operators redistribute their effort.

Alternative B4d

    This alternative would prohibit the use of pelagic longline gear in 
the vicinity of the ``Hatteras Shelf'' area of the Cape Hatteras 
Special Research Area during the month of November where elevated 
levels of dusky shark interactions have been reported. This alternative 
is expected to have minor short- and long-term direct adverse economic 
impacts on 23 vessels that have historically fished in this Hatteras 
Shelf Hotspot area during the month of November. The average annual 
revenue from 2008 through 2014 from all fishing sets made in this 
hotspot closure area has been approximately $5,230 per vessel during 
the month of November, assuming that fishing effort does not move to 
other areas. However, it is likely that some of the vessels that would 
be impacted by this hotspot closure would redistribute their effort to 
other fishing areas. The net impact of the Hatteras Shelf Hotspot 
November closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $3,540 per vessel per year. 
Alternative B4d would result in minor adverse economic impacts as a 
result of restricting pelagic longline vessels from fishing in the 
Hatteras Shelf Hotspot November area, thus causing decreased revenues 
and increased costs associated with fishing in potentially more distant 
waters if vessel operators redistribute their effort.

Alternative B4e

    This alternative would prohibit the use of pelagic longline gear by 
all U.S. flagged-vessels permitted to fish for HMS in the three 
distinct closures in the vicinity of the Mid-Atlantic Canyons during 
the month of October where elevated levels of dusky shark interactions 
have been reported. This alternative is expected to have moderate 
short- and long-term direct adverse economic impacts on 64 vessels that 
have historically fished in this Canyons Hotspot October area. The 
average annual revenue from 2008 through 2014 from all fishing sets 
made in this hotspot closure area has been approximately $9,950 per 
vessel during the month of October, assuming that fishing effort does 
not move to other areas. However, it is likely that some of the vessels 
that would be impacted by this hotspot closure would redistribute their 
effort to other fishing areas. The net impact of the Canyons Hotspot 
October closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $3,720 per vessel per year. 
Alternative B4e would result in moderate adverse economic impacts as a 
result of restricting pelagic longline vessels from fishing in the 
Canyons Hotspot October area, thus causing decreased revenues and 
increased costs associated with fishing in potentially more distant 
waters if vessel operators redistribute their effort.

Alternative B4f

    This alternative would prohibit the use of pelagic longline gear by 
all U.S. flagged-vessels permitted to fish for HMS in July in an area 
adjacent to the existing Northeastern U.S. closure which is currently 
effective for the month of June, where elevated levels of dusky shark 
interactions have been reported. This alternative is expected to have 
moderate short- and long-term direct adverse economic impacts on 35 
vessels that have historically fished in this Southern Georges Banks 
Hotspot area during the month of July. The average annual revenue from 
2008 through 2014 from all fishing sets made in this hotspot closure 
area has been approximately $14,230 per vessel during the month of 
July, assuming that fishing effort does not move to other areas. 
However, it is likely that some of the vessels that would be impacted 
by this hotspot closure would redistribute their effort to other 
fishing areas. The net impact of the Southern Georges Banks Hotspot 
July closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $8,290 per vessel per year. 
Alternative B4f would result in moderate adverse economic impacts as a 
result of restricting longline vessels from fishing in the Southern 
Georges Banks Hotspot July area, thus causing decreased revenues and 
increased costs associated with fishing in potentially more distant 
waters if vessel operators redistribute their effort.

Alternative B4g

    This alternative would prohibit the use of pelagic longline gear by 
all U.S. flagged-vessels permitted to fish for HMS in August in an area 
adjacent to the existing Northeastern U.S. closure, which is currently 
effective for the month of June, where elevated levels of dusky shark 
interactions have been reported. This alternative is expected to have 
moderate short- and long-term direct adverse economic impacts on 35 
vessels that have historically fished in this Southern Georges Banks 
Hotspot area during the month of August. The average annual revenue 
from 2008 through 2014 from all fishing sets made in this hotspot 
closure area has been approximately $12,260 per vessel during the month 
of August, assuming that fishing effort does not move to other areas. 
However, it is likely that some of the vessels that would be impacted 
by this hotspot closure would redistribute their effort to other 
fishing areas. The net impact of the Southern Georges Banks Hotspot 
August closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $5,990 per vessel per year. 
Alternative B4g would result in moderate adverse economic impacts as a 
result of restricting pelagic longline vessels from fishing in the 
Southern Georges Banks Hotspot August area, thus causing decreased 
revenues and increased costs associated with fishing

[[Page 16503]]

in potentially more distant waters if vessel operators redistribute 
their effort.

Alternative B4h

    This alternative would prohibit the use of pelagic longline gear by 
all U.S. flagged-vessels permitted to fish for HMS in a portion of the 
existing Charleston Bump time/area closure during the month of November 
where elevated levels of dusky shark interactions have been reported. 
This alternative is expected to have minor short- and long-term direct 
adverse economic impacts on 32 vessels that have historically fished in 
this Charleston Bump Hotspot area during the month of November. The 
average annual revenue from 2008 through 2014 from all fishing sets 
made in this hotspot closure area has been approximately $7,030 per 
vessel during the month of November, assuming that fishing effort does 
not move to other areas. However, it is likely that some of the vessels 
that would be impacted by this hotspot closure would redistribute their 
effort to other fishing areas. The net impact of the Charleston Bump 
Hotspot November closure on fishing revenues after considering likely 
redistribution of effort is estimated to be $2,720 per vessel per year. 
Alternative B4h would result in minor adverse social and economic 
impacts as a result of restricting pelagic longline vessels from 
fishing in the Charleston Bump Hotspot November area, thus causing 
decreased revenues and increased costs associated with fishing in 
potentially more distant waters if vessel operators redistribute their 
effort.

Alternative B4i

    This alternative would provide strong incentives to avoid dusky 
sharks and to reduce interactions by modifying fishing behavior. 
Participants in the pelagic longline fleet have requested increased 
individual accountability within the fishery in light of several 
management issues facing the fishery (e.g., bluefin tuna, dusky 
sharks). NMFS first developed the use of conditional access under Draft 
Amendment 7, in part due to the public comments and feedback received 
regarding the original dusky hotspot closures proposed in Draft 
Amendment 5. This approach would address the fact that, according to 
HMS logbook data, relatively few vessels have consistently accounted 
for the majority of the dusky shark interactions. Conditional access 
would not impact the entire fleet for interactions made by a relatively 
small proportion of vessels. Therefore, depending on the metrics 
selected and fishery participant behavior, this alternative could have 
adverse socioeconomic effects on certain vessels that are both poor 
avoiders of dusky sharks and are non-compliant with the regulations. 
NMFS would analyze the socioeconomic impact by using similar fishing 
effort redistribution proposed in Draft Amendment 7. Overall, the 
adverse socioeconomic effects of dusky shark hotspot closures are 
expected to be less if a conditional access alternative is implemented 
because some vessels would still be able to access and fish the hotspot 
closures. This alternative would have neutral to beneficial effects for 
vessels that are still authorized to fish in these regions, as they 
would not be held accountable for the behavior of other individuals and 
would not have to change their current fishing operations.

Alternative B4j

    This alternative would implement bycatch caps on dusky shark 
interactions in hotspot areas. Under this alternative, NMFS would allow 
pelagic longline vessels limited access to high dusky shark interaction 
areas with an observer onboard while limiting the number of dusky shark 
interactions that could occur in these areas. Once the dusky shark 
bycatch cap for an area is reached, that area would close until the end 
of the three-year bycatch cap period. This alternative could lead to 
adverse economic impacts by reducing annual revenue from fishing in the 
various hot spot areas depending on the number of hotspots where 
bycatch cap limits are reached, the timing of those potential closures 
during the year, and the amount of effort redistribution that occurs 
after the closures. In addition to direct impacts to vessels owners, 
operators, and crew members, this alternative would have moderate, 
adverse indirect impacts in the short-and long-term on fish dealers, 
processors, bait/gear suppliers, and other shore-based businesses 
impacted by reduced fishing opportunities for pelagic longline vessel 
owners that would have fished in the hotspot area.

Alternative B5--Preferred Alternative

    Alternative B5, a preferred alternative, would provide additional 
training to pelagic longline, bottom longline, and shark gillnet vessel 
owners and operators as a new part of all Safe Handling and Release 
Workshops. The course would be taught in conjunction with the current 
Protected Species Safe Handling, Release, and Identification workshops 
that HMS pelagic longline, bottom longline, and shark gillnet vessel 
owners and operators are already required to attend. The training 
course would provide information regarding shark identification and 
regulations, as well as best practices to avoid interacting with dusky 
sharks and how to minimize mortality of dusky sharks caught as bycatch. 
This training course would provide targeted outreach on dusky shark 
identification and regulations, which should decrease interactions with 
dusky sharks. This alternative would have neutral economic impacts 
because the fishermen are already required to attend a workshop, incur 
some travel costs, and would not be fishing while taking attending the 
workshop. Given the neutral economic impacts and this alternative's 
potential to decrease dusky interactions and mortality, NMFS prefers 
this alternative.

Alternative B6--Preferred Alternative

    The economic impacts associated with Alternative B6, which would 
increase dusky shark outreach and awareness through development of 
additional commercial fishery outreach materials and establish a 
communication and fishing set relocation protocol for HMS commercial 
fishermen following interactions with dusky sharks and increase 
outreach to the pelagic longline fleet, are anticipated to be neutral. 
These requirements would not cause a substantial change to current 
fishing operations, but have the potential to help fishermen become 
more adept in avoiding dusky sharks. If fishermen become better at 
avoiding dusky sharks, there is the possibility that target catch could 
increase. On the other hand, the requirement to move the subsequent 
fishing set one nautical mile from where a previous dusky shark 
interaction occurred could move fishermen away from areas where they 
would prefer to fish and it could increase fuel usage and fuel costs. 
Given the neutral economic impacts of this alternative and its 
expectation to decrease dusky shark interactions, NMFS prefers this 
alternative.

Alternative B7

    NMFS would seek, through collaboration with the affected states and 
the ASMFC, to extend the end date of the existing state shark closure 
from July 15 to July 31. Currently, the states of Virginia, Maryland, 
Delaware, and New Jersey have a state-water commercial shark closure 
from May 15 to July 15. In 2014, 621 lb dw of aggregated LCS and 669 lb 
dw of hammerhead sharks were landed by commercial fishermen in 
Virginia, Maryland, and New Jersey from July 15 to July 31. Based on 
2014 ex-vessel prices, the annual gross revenues loss

[[Page 16504]]

for aggregated LCS and hammerhead shark meat to the regional fleet in 
revenues due to an extended closure date would be $847, while the shark 
fins would be $207. Thus the total loss annual gross revenue for 
aggregated LCS and hammerhead sharks would be $1,054. Extending this 
closure by 16 days could cause a reduction of commercial fishing 
opportunity, likely resulting in minor adverse economic impacts due to 
reduced opportunities to harvest aggregated LCS and hammerhead sharks. 
In the long-term, this reduction would be neutral since fishermen would 
be able to adapt to the new opening date.

Alternative B8

    Under Alternative B8, NMFS would remove pelagic longline gear as an 
authorized gear for Atlantic HMS. All commercial fishing with pelagic 
longline gear for HMS in the Atlantic, Gulf of Mexico, and Caribbean 
would be prohibited. This would greatly reduce fishing opportunities 
for pelagic longline fishing vessel owners. Prohibiting the use of 
pelagic longline fishing gear would result in direct and indirect, 
major adverse economic impacts in the short-and long-term for pelagic 
longline vessel owners, operators, and crew.
    Between 2008 and 2014, 168 different vessels reported using pelagic 
longline fishing gear in Atlantic HMS Logbooks. Average annual revenues 
were estimated to be approximately $34,322,983 per year based on HMS 
logbook records, bluefin tuna dealer reports, and the eDealer database. 
In 2014, there were 110 active pelagic longline vessels which produced 
approximately $33,293,118 in revenues. The 2014 landings value is in 
line with the 2008 to 2014 average. Therefore, NMFS expects future 
revenues forgone revenue on a per vessel basis to be approximately 
$309,000 per year based on 110 vessels generating an estimated $34 
million in revenues per year. This displacement of fishery revenues 
would likely cause business closures for a majority of these pelagic 
longline vessel owners. Given the magnitude of the economic impact of 
this alternative, it is not a preferred alternative.

Alternative B9--Preferred Alternative

    Under Alternative B9, NMFS would require the use of circle hooks by 
all HMS directed shark permit holders in the bottom longline fishery. 
This requirement is expected to reduce the mortality associated with 
catch of dusky shark in the bottom longline fishery.
    There is negligible cost associated with switch from J-hooks to 
circle hooks. However, there is some indication that the use of circle 
hooks may reduce catch per unit effort (CPUE) resulting in lower catch 
of target species. To the extent that CPUE is reduced, some commercial 
fishermen using BLL gear may experience reduced landings and associated 
revenue with the use of circle hooks. This alternative would require 
the 224 vessels that hold a shark directed limited access permit as of 
2015 to use circle hooks. However, 104 of the 224 vessels have an 
Atlantic tunas longline permit, which requires fishermen to use circle 
hooks with pelagic longline gear. Thus, those vessels would already 
possess and use circle hooks. The remaining 120 permit holders would be 
required to use circle hooks when using bottom longline gear. Given the 
low switching costs from J-hooks to circle hooks and the potential to 
reduce dusky shark mortality, NMFS prefers this alternative.

Alternative B10

    Under this alternative, NMFS would annually allocate a certain 
number of allowable dusky shark interactions to each individual shark 
directed or incidental limited access permit holder in the HMS pelagic 
and bottom longline fisheries. These allocations would be transferable 
between permit holders. When each vessel's individual dusky shark 
bycatch quota (IDQ) is reached, the vessel would no longer be 
authorized to fish for HMS for the remainder of the year. The concept 
of this alternative is similar to the Individual Bluefin Tuna Quota 
(IBQ) Program implemented in Amendment 7 to the 2006 Consolidated HMS 
FMP (79 FR 71510), which established individual quotas for bluefin tuna 
bycatch in the pelagic longline fishery and authorized retention and 
sale of such bycatch. We would not, however, anticipate authorizing 
retention and sale of dusky sharks, because they remain a prohibited 
species.
    The goal of this alternative would be to provide strong individual 
incentives to reduce dusky shark interactions while providing 
flexibility for vessels to continue to operate in the fishery, however, 
several unique issues associated with dusky sharks would make these 
goals difficult to achieve.
    In order to achieve the mortality reductions based upon the 2016 
SEDAR 21 dusky shark assessment update, the number of dusky shark 
interactions may need to be substantially reduced. NMFS expects the 
allocations to each vessel may be extremely low and highly inaccurate/
uncertain. It is not clear that an IDQ system without a supportable 
scientific basis would actually reduce interactions with dusky sharks. 
To the extent that any reduction actually occurred, some vessels would 
be constrained by the amount of individual quota they are allocated and 
this could reduce their annual revenue. If a pelagic longline vessel 
interacts with dusky sharks early in the year and uses their full IDQ 
allocation, they may be unable to continue fishing with pelagic 
longline or bottom longline gear for the rest of the year if they are 
unable to lease quota from other IDQ holders. This would result in 
reduced revenues and potential cash flow issues for these small 
businesses.
    If vessel owners are only allocated a very low amount of IDQ, it is 
very unlikely that an active trading market for IDQs will emerge. The 
initial allocations could be insufficient for many vessels to maintain 
their current levels of fishing activity and they may not be able to 
find IDQs to lease or have insufficient capital to lease a sufficient 
amount of IDQs. Some vessel owners may view the risk of exceeding their 
IDQ allocations and the associated costs of acquiring additional quota 
to outweigh the potential profit from fishing, so they may opt to not 
continue participating in the fishery.
    The annual transaction costs associated with matching lessor and 
lessees, the costs associated with drafting agreements, and the 
uncertainty vessel owners would face regarding quota availability would 
reduce some of the economic benefits associated with leasing quota and 
fishing.
    There would also be increased costs associated with bottom longline 
vessels obtaining and installing EM and VMS units. Some bottom longline 
vessel owners might have to consider obtaining new vessels if their 
current vessels cannot be equipped with EM and VMS. There would be 
increased costs associated with VMS reporting of dusky interactions. 
Some fishermen would also need to ship EM hard drives after each trip 
and they may need to consider acquiring extra hard drives to avoid not 
having one available when they want to go on a subsequent trip.
    Given the challenges in properly identifying dusky sharks, every 
shark would need to be brought on board the vessel and ensure an 
accurate picture of identifying features was taken by the EM cameras. 
Such handling would likely increase dusky shark and other shark species 
mortality and thus not fully achieve the stated objectives of this 
rule. This alternative is also unlikely to minimize the economic impact 
of this rule as compared to the preferred alternatives given the 
potential for

[[Page 16505]]

reduced fishing revenues, monitoring equipment costs, and transaction 
costs.

Small Entity Compliance Guide

    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 
this final rule and the compliance guide are available upon request 
from NMFS (see ADDRESSES). Copies of the compliance guide will be 
available from the Highly Migratory Species Management Division Web 
site at http://www.nmfs.noaa.gov/sfa/hms/.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 635

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

    Dated: March 30, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For reasons set out in the preamble, NMFS amends 15 CFR part 902 
and 50 CFR part 635 as follows:

Title 15--Commerce and Foreign Trade

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority: 44 U.S.C. 3501 et seq.


0
2. In Sec.  902.1, in the table in paragraph (b) under ``50 CFR'', add 
entries for ``635.2'', ``635.4(c)'', and ``635.4(j)'' in numerical 
order to read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *

    (b) * * *

------------------------------------------------------------------------
                                                          Current OMB
 CFR part or section where the information collection   control No. (all
                requirement is located                   numbers begin
                                                          with 0648-)
------------------------------------------------------------------------
 
                                * * * * *
50 CFR:
 
                                * * * * *
635.2................................................              -0327
 
                                * * * * *
635.4(c).............................................              -0327
 
                                * * * * *
635.4(j).............................................              -0327
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

Title 50--Wildlife and Fisheries

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
3. 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
4. In Sec.  635.2:
0
a. Remove the definition of ``Protected species safe handling, release, 
and identification workshop certificate''; and
0
b. Add new definitions for ``Safe handling, release, and identification 
workshop certificate'' and ``Shark endorsement'' in alphabetical order 
to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Safe handling, release, and identification workshop certificate 
means the document issued by NMFS, or its designee, indicating that the 
person named on the certificate has successfully completed the Atlantic 
HMS safe handling, release, and identification workshop.
* * * * *
    Shark endorsement means an authorization added to an HMS Angling, 
HMS Charter/Headboat, Atlantic Tunas General, or Swordfish General 
Commercial permit that allows for the retention of authorized Atlantic 
sharks consistent with all other applicable regulations in this part.
* * * * *

0
5. In Sec.  635.4, revise paragraphs (b)(1), (c)(1), and (c)(2), and 
add paragraphs (c)(5) and (j)(4) to read as follows:


Sec.  635.4   Permits and fees.

* * * * *
    (b) * * *
    (1) The owner of a charter boat or headboat used to fish for, 
retain, possess, or land any Atlantic HMS must obtain an HMS Charter/
Headboat permit. In order to fish for, retain, possess, or land 
Atlantic sharks, the owner must have a valid shark endorsement issued 
by NMFS. A vessel issued an HMS Charter/Headboat permit for a fishing 
year shall not be issued an HMS Angling permit, a Swordfish General 
Commercial permit, or an Atlantic Tunas permit in any category for that 
same fishing year, regardless of a change in the vessel's ownership.
* * * * *
    (c) * * *
    (1) The owner of any vessel used to fish recreationally for 
Atlantic HMS or on which Atlantic HMS are retained or possessed 
recreationally, must obtain an HMS Angling permit, except as provided 
in paragraph (c)(2) of this section. In order to fish for, retain, 
possess, or land Atlantic sharks, the owner must have a valid shark 
endorsement issued by NMFS. Atlantic HMS caught, retained, possessed, 
or landed by persons on board vessels with an HMS Angling permit may 
not be sold or transferred to any person for a commercial purpose. A 
vessel issued an HMS Angling permit for a fishing year shall not be 
issued an HMS Charter/Headboat permit, a Swordfish General Commercial 
permit, or an Atlantic Tunas permit in any category for that same 
fishing year, regardless of a change in the vessel's ownership.
    (2) A vessel with a valid Atlantic Tunas General category permit 
issued under paragraph (d) of this section or with a valid Swordfish 
General Commercial permit issued under paragraph (f) of this section 
may fish in a recreational HMS fishing tournament if the vessel has 
registered for, paid an entry fee to, and is fishing under the rules of 
a tournament that has registered with NMFS' HMS Management Division as 
required under Sec.  635.5(d). When a vessel issued a valid Atlantic 
Tunas General category permit or a valid Swordfish General Commercial 
permit is fishing in such a tournament, such vessel must comply with 
HMS Angling category regulations, except as provided in paragraphs 
(c)(3) through (c)(5) of this section.
* * * * *
    (5) In order to fish for, retain, possess, or land sharks, the 
owner of a vessel fishing in a registered recreational HMS fishing 
tournament and issued either an Atlantic Tunas General category or 
Swordfish General Commercial permit must have a shark endorsement.
* * * * *

[[Page 16506]]

    (j) * * *
    (4) In order to obtain a shark endorsement to fish for, retain, 
possess, or land sharks, a vessel owner with a vessel fishing in a 
registered recreational HMS fishing tournament and issued or required 
to be issued either an Atlantic Tunas General category or Swordfish 
General Commercial permit or a vessel owner of a vessel issued or 
required to be issued an HMS Angling or HMS Charter/Headboat permit 
must take a shark endorsement online quiz. After completion of the 
quiz, NMFS will issue the vessel owner a new or revised permit with the 
shark endorsement for the vessel. The vessel owner can take the quiz at 
any time during the fishing year, but his or her vessel may not leave 
the dock on a trip during which sharks will be fished for, retained, 
possessed, or landed unless a new or revised permit with a shark 
endorsement has been issued by NMFS for the vessel. The addition of a 
shark endorsement to the permit does not constitute a permit category 
change and does not change the timing considerations for permit 
category changes specified in paragraph (j)(3) of this section. Vessel 
owners may request that NMFS remove the shark endorsement from the 
permit at any time. If NMFS removes the shark endorsement from the 
vessel permit, no person on board the vessel may fish for, retain, 
possess, or land sharks.
* * * * *

0
 6. In Sec.  635.8, revise paragraphs (a), (c)(2), (c)(3), (c)(5), 
(c)(6), and (c)(7) as follows:


Sec.  635.8  Workshops.

    (a) Safe handling, release, and identification workshops. (1) Both 
the owner and operator of a vessel that fishes with Longline or gillnet 
gear must be certified by NMFS, or its designee, as having completed a 
safe handling, release, and identification workshop before a shark or 
swordfish limited access vessel permit, pursuant to Sec.  635.4(e) and 
(f), is renewed. For the purposes of this section, it is a rebuttable 
presumption that a vessel fishes with longline or gillnet gear if: 
Longline or gillnet gear is onboard the vessel; logbook reports 
indicate that longline or gillnet gear was used on at least one trip in 
the preceding year; or, in the case of a permit transfer to new owners 
that occurred less than a year ago, logbook reports indicate that 
longline or gillnet gear was used on at least one trip since the permit 
transfer.
    (2) NMFS, or its designee, will issue a safe handling, release, and 
identification workshop certificate to any person who completes a safe 
handling, release, and identification workshop. If an owner owns 
multiple vessels, NMFS will issue a certificate for each vessel that 
the owner owns upon successful completion of one workshop. An owner who 
is also an operator will be issued multiple certificates, one as the 
owner of the vessel and one as the operator.
    (3) The owner of a vessel that fishes with longline or gillnet 
gear, as specified in paragraph (a)(1) of this section, is required to 
possess on board the vessel a valid safe handling, release, and 
identification workshop certificate issued to that vessel owner. A copy 
of a valid safe handling, release, and identification workshop 
certificate issued to the vessel owner for a vessel that fishes with 
longline or gillnet gear must be included in the application package to 
renew or obtain a shark or swordfish limited access permit.
    (4) An operator that fishes with longline or gillnet gear as 
specified in paragraph (a)(1) of this section must possess on board the 
vessel a valid safe handling, release, and identification workshop 
certificate issued to that operator, in addition to a certificate 
issued to the vessel owner.
* * * * *
    (c) * * *
    (2) If a vessel fishes with longline or gillnet gear as described 
in paragraph (a)(1) of this section, the vessel owner may not renew a 
shark or swordfish limited access permit, issued pursuant to Sec.  
635.4(e) or (f), without submitting a valid safe handling, release, and 
identification workshop certificate with the permit renewal 
application.
    (3) A vessel that fishes with longline or gillnet gear as described 
in paragraph (a)(1) of this section and that has been, or should be, 
issued a valid limited access permit pursuant to Sec.  635.4(e) or (f), 
may not fish unless a valid safe handling, release, and identification 
workshop certificate has been issued to both the owner and operator of 
that vessel.
* * * * *
    (5) A vessel owner, operator, shark dealer, proxy for a shark 
dealer, or participant who is issued either a safe handling, release, 
and identification workshop certificate or an Atlantic shark 
identification workshop certificate may not transfer that certificate 
to another person.
    (6) Vessel owners issued a valid safe handling, release, and 
identification workshop certificate may request, in the application for 
permit transfer per Sec.  635.4(l)(2), additional safe handling, 
release, and identification workshop certificates for additional 
vessels that they own. Shark dealers may request from NMFS additional 
Atlantic shark identification workshop certificates for additional 
places of business authorized to receive sharks that they own as long 
as they, and not a proxy, were issued the certificate. All certificates 
must be renewed prior to the date of expiration on the certificate.
    (7) To receive the safe handling, release, and identification 
workshop certificate or Atlantic shark identification workshop 
certificate, persons required to attend the workshop must first show a 
copy of their HMS permit, as well as proof of identification to NMFS or 
NMFS' designee at the workshop. If a permit holder is a corporation, 
partnership, association, or any other entity, the individual attending 
on behalf of the permit holder must show proof that he or she is the 
permit holder's agent and provide a copy of the HMS permit to NMFS or 
NMFS' designee at the workshop. For proxies attending on behalf of a 
shark dealer, the proxy must have documentation from the shark dealer 
acknowledging that the proxy is attending the workshop on behalf of the 
Atlantic shark dealer and must show a copy of the Atlantic shark dealer 
permit to NMFS or NMFS' designee at the workshop.

0
7. In Sec.  635.19, revise paragraph (d) to read as follows:


Sec.  635.19  Authorized gears.

* * * * *
    (d) Sharks. (1) No person may possess a shark without a permit 
issued under Sec.  635.4.
    (2) No person issued a Federal Atlantic commercial shark permit 
under Sec.  635.4 may possess a shark taken by any gear other than rod 
and reel, handline, bandit gear, longline, or gillnet, except that 
smoothhound sharks may be retained incidentally while fishing with 
trawl gear subject to the restrictions specified in Sec.  635.24(a)(7).
    (3) No person issued an HMS Commercial Caribbean Small Boat permit 
may possess a shark taken from the U.S. Caribbean, as defined at Sec.  
622.2 of this chapter, by any gear other than with rod and reel, 
handline or bandit gear.
    (4) Persons on a vessel issued a permit with a shark endorsement 
under Sec.  635.4 may possess a shark only if the shark was taken by 
rod and reel or handline, except that persons on a vessel issued both 
an HMS Charter/Headboat permit (with or without a shark endorsement) 
and a Federal Atlantic commercial shark permit may possess sharks taken 
by rod and reel, handline, bandit gear, longline,

[[Page 16507]]

or gillnet if the vessel is engaged in a non for-hire fishing trip and 
the commercial shark fishery is open pursuant to Sec.  635.28(b).
* * * * *

0
8. In Sec.  635.21:
0
a. Add paragraph (c)(6);
0
b. Revise the introductory text for paragraph (d)(2);
0
c. Add paragraphs (d)(2)(iii) and (d)(4);
0
d. Revise paragraph (f); and
0
e. Add paragraphs (g)(5) and (k).
    The additions and revisions read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (c) * * *
    (6) The owner or operator of a vessel permitted or required to be 
permitted under this part and that has pelagic longline gear on board 
must undertake the following shark bycatch mitigation measures:
    (i) Handling and release requirements. As safely as practicable, 
any hooked or entangled sharks that are not being retained must be 
released using dehookers or line clippers or cutters. If using a line 
clipper or cutter, the gangion must be cut so that less than three feet 
(91.4 cm) of line remains attached to the hook.
    (ii) Fleet communication and relocation protocol. The owner or 
operator of any vessel that catches a dusky shark must, as quickly as 
practicable, broadcast the location of the dusky shark interaction over 
the radio to other fishing vessels in the surrounding area. Subsequent 
fishing sets by that vessel on that trip must be at least 1 nmi from 
the reported location of the dusky shark catch. Vessel owners and 
operators are encouraged to move the vessel further away than 1 nmi if 
conditions (e.g., water temperature, depth, tide, etc.) indicate that 
moving a greater distance is warranted to avoid additional dusky shark 
interactions.
    (d) * * *
    (2) The operator of a vessel required to be permitted under this 
part and that has bottom longline gear on board must undertake the 
following bycatch mitigation measures:
* * * * *
    (iii) Fleet communication and relocation protocol. The owner or 
operator of any vessel that catches a dusky shark must, as quickly as 
practicable, broadcast the location of the dusky shark interaction over 
the radio to other fishing vessels in the surrounding area. Subsequent 
fishing sets by that vessel on that trip must be at least 1 nmi from 
the reported location of the dusky shark catch. Vessel owners and 
operators are encouraged to move the vessel further away than 1 nmi if 
conditions (e.g., water temperature, depth, tide, etc.) indicate that 
moving a greater distance is warranted to avoid additional dusky shark 
interactions.
* * * * *
    (4) Vessels that have bottom longline gear on board and that have 
been issued, or are required to have been issued, a directed shark 
limited access permit under Sec.  635.4(e) must have only circle hooks 
as defined at Sec.  635.2 on board.
* * * * *
    (f) Rod and reel. (1) Persons who have been issued or are required 
to be issued a permit under this part and who are participating in a 
``tournament,'' as defined in Sec.  635.2, that bestows points, prizes, 
or awards for Atlantic billfish must deploy only non-offset circle 
hooks when using natural bait or natural bait/artificial lure 
combinations, and may not deploy a J-hook or an offset circle hook in 
combination with natural bait or a natural bait/artificial lure 
combination.
    (2) A person on board a vessel that has been issued or is required 
to be issued a permit with a shark endorsement under this part and who 
is participating in an HMS registered tournament that bestows points, 
prizes, or awards for Atlantic sharks must deploy only non-offset, 
corrodible circle hooks when fishing for, retaining, possessing, or 
landing sharks south of 41[deg]43' N. latitude, except when fishing 
with flies or artificial lures. Any shark caught south of 41[deg]43' N. 
latitude on non-circle hooks must be released, unless the shark was 
caught when fishing with flies or artificial lures.
    (3) A person on board a vessel that has been issued or is required 
to be issued an HMS Angling permit with a shark endorsement or an HMS 
Charter/Headboat permit with a shark endorsement must deploy only non-
offset, corrodible circle hooks when fishing for, retaining, 
possessing, or landing sharks south of 41[deg]43' N. latitude, except 
when fishing with flies or artificial lures. Any shark caught south of 
41[deg]43' N. latitude on non-circle hooks must be released, unless the 
shark was caught when fishing with flies or artificial lures.
    (g) * * *
    (5) Fleet communication and relocation protocol. The owner or 
operator of any vessel issued or required to be issued a Federal 
Atlantic commercial shark limited access permit that catches a dusky 
shark must, as quickly as practicable, broadcast the location of the 
dusky shark interaction over the radio to other fishing vessels in the 
surrounding area. Subsequent fishing sets by that vessel that trip must 
be at least 1 nmi from the reported location of the dusky shark catch. 
Vessel owners and operators are encouraged to move the vessel further 
away than 1 nmi if conditions (e.g., water temperature, depth, tide, 
etc.) indicate that moving a greater distance is warranted to avoid 
additional dusky shark interactions.
* * * * *
    (k) Handline. (1) A person on board a vessel that has been issued 
or is required to be issued a permit with a shark endorsement under 
this part and who is participating in an HMS registered tournament that 
bestows points, prizes, or awards for Atlantic sharks must deploy only 
non-offset, corrodible circle hooks when fishing for, retaining, 
possessing, or landing sharks south of 41[deg]43' N. latitude, except 
when fishing with flies or artificial lures. Any shark caught south of 
41[deg]43' N. latitude on non-circle hooks must be released, unless the 
shark was caught when fishing with flies or artificial lures.
    (2) A person on board a vessel that has been issued or is required 
to be issued an HMS Angling permit with a shark endorsement or a person 
on board a vessel with an HMS Charter/Headboat permit with a shark 
endorsement must deploy only non-offset, corrodible circle hooks when 
fishing for, retaining, possessing, or landing sharks south of 
41[deg]43' N. latitude, except when fishing with flies or artificial 
lures. Any shark caught south of 41[deg]43' N. latitude on non-circle 
hooks must be released, unless the shark was caught when fishing with 
flies or artificial lures.

0
9. In Sec.  635.22, revise paragraph (c)(1) to read as follows:


Sec.  635.22  Recreational retention limits.

    (c) * * *
    (1) The recreational retention limit for sharks applies to any 
person who fishes in any manner, except to persons aboard a vessel that 
has been issued a Federal Atlantic commercial shark vessel permit under 
Sec.  635.4. The retention limit can change depending on the species 
being caught and the size limit under which they are being caught as 
specified under Sec.  635.20(e). If a commercial Atlantic shark quota 
is closed under Sec.  635.28, the recreational retention limit for 
sharks and no sale provision in paragraph (a) of this section may be 
applied to persons aboard a vessel issued a Federal Atlantic commercial 
shark vessel permit under Sec.  635.4, only if that vessel has also 
been issued an HMS Charter/Headboat permit with a shark

[[Page 16508]]

endorsement under Sec.  635.4 and is engaged in a for-hire fishing 
trip. A person on board a vessel that has been issued or is required to 
be issued a permit with a shark endorsement under Sec.  635.4 may be 
required to use non-offset, corrodible circle hooks as specified in 
Sec.  635.21(f) and (k) in order to retain sharks per the retention 
limits specified in this section.
* * * * *

0
10. In Sec.  635.71, revise paragraphs (a)(50) through (52), and add 
paragraphs (d)(21) through (d)(26) to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (50) Fish without a NMFS safe handling, release, and identification 
workshop certificate, as required in Sec.  635.8.
    (51) Fish without having on board the vessel a valid safe handling, 
release, and identification workshop certificate issued to the vessel 
owner and operator as required in Sec.  635.8.
    (52) Falsify a NMFS safe handling, release, and identification 
workshop certificate or a NMFS Atlantic shark identification workshop 
certificate as specified at Sec.  635.8.
* * * * *
    (d) * * *
    (21) Fish for, retain, possess, or land sharks without a shark 
endorsement, as specified in Sec.  635.4(b) and (c).
    (22) Except when fishing only with flies or artificial lures, fish 
for, retain, possess, or land sharks south of 41[deg]43' N. latitude 
without deploying non-offset, corrodible circle hooks when fishing at a 
registered recreational HMS fishing tournament that has awards or 
prizes for sharks, as specified in Sec.  635.21(f) and (k).
    (23) Except when fishing only with flies or artificial lures, fish 
for, retain, possess, or land sharks south of 41[deg]43' N. latitude 
without deploying non-offset, corrodible circle hooks when issued an 
Atlantic HMS Angling permit or HMS Charter/Headboat permit with a shark 
endorsement, as specified in Sec.  635.21(f) and (k).
    (24) Release sharks with more than 3 feet (91.4 cm) of trailing 
gear, as specified in Sec.  635.21(c)(6).
    (25) Fail to follow the fleet communication and relocation protocol 
for dusky sharks as specified at Sec.  635.21(c)(6), (d)(2), and 
(g)(5).
    (26) Deploy bottom longline gear without circle hooks, or have on 
board both bottom longline gear and non-circle hooks, as specified at 
Sec.  635.21(d)(4).
* * * * *
[FR Doc. 2017-06591 Filed 4-3-17; 8:45 am]
BILLING CODE 3510-22-P