Atlantic Highly Migratory Species (HMS); Atlantic Shark Management Measures; Republication, 40658-40713 [R8-13961]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 136 (Tuesday, July 15, 2008)]
[Rules and Regulations]
[Pages 40658-40713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: R8-13961]



[[Page 40657]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 600 and 635



Atlantic Highly Migratory Species (HMS); Atlantic Shark Management 
Measures; Final Rule; Republication

Federal Register / Vol. 73, No. 136 / Tuesday, July 15, 2008 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 0612242866-8619-02]
RIN 0648-AU89


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

    Editorial Note: Federal Register rule document E8-13961, 
originally published at pages 35778 to 35833 in the issue of 
Tuesday, June 24, 2008, included several pages of duplicated text 
and deleted material. This document is being republished in its 
entirety.

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

ACTION: Final rule; fishing season notification.

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SUMMARY: This final rule implements the management measures described 
in Final Amendment 2 to the Atlantic HMS Fishery Management Plan (FMP). 
These management measures are designed to rebuild overfished species 
and prevent overfishing of Atlantic sharks. These measures include, but 
are not limited to, reductions in the commercial quotas, adjustments to 
commercial retention limits, establishment of a shark research fishery, 
a requirement for commercial vessels to maintain all fins on the shark 
carcasses through offloading, the establishment of two regional quotas 
for non-sandbar large coastal sharks (LCS), the establishment of one 
annual season for commercial shark fishing instead of trimesters, 
changes in reporting requirements for dealers (including swordfish and 
tuna dealers), the establishment of additional time/area closures for 
bottom longline (BLL) fisheries, and changes to the authorized species 
for recreational fisheries. This rule also establishes the 2008 
commercial quota for all Atlantic shark species groups. These changes 
affect all commercial and recreational shark fishermen and shark 
dealers on the Atlantic Coast.

DATES: This rule is effective on July 24, 2008.

ADDRESSES: For copies of Final Amendment 2 to the Highly Migratory 
Species Fishery Management Plan, the Small Entity Compliance Guide, or 
other related documents, please write to the Highly Migratory Species 
Management Division, 1315 East-West Highway, Silver Spring, MD 20910, 
or call at (301) 713-2347 or fax to (301)713-1917. Copies are also 
available on the HMS website at https://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 Highly Migratory Species Management 
Division at (301) 713-2347 or by fax to (301) 713-1917 and by e-mail to 
David_Rostker@omb.eop.gov or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Michael Clark, Karyl Brewster-Geisz, 
or LeAnn Southward Hogan at 301-713-2347 or by fax at 301-713-1917; or 
Jackie Wilson at 240-338-3936.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic shark fisheries are managed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The Consolidated HMS FMP is implemented by regulations at 
50 CFR part 635.
    NMFS announced its intent to prepare an environmental impact 
statement (EIS) on November 7, 2006 (71 FR 65086), and held seven 
scoping meetings in January 2007 (72 FR 123, January 3, 2007). As 
described in the notice of intent, based on the results of the 2005 
Canadian porbeagle shark stock assessment, the 2006 dusky shark stock 
assessment, and the 2005/2006 LCS stock assessment, NMFS declared the 
current status of the LCS complex as unknown, sandbar sharks as 
overfished with overfishing occurring, the Gulf of Mexico blacktip 
shark population as not overfished with overfishing not occurring, the 
Atlantic blacktip shark population as unknown, the dusky shark as 
overfished with overfishing occurring, and porbeagle sharks as 
overfished with overfishing not occurring. Where there are overfished/ 
overfishing determinations, under the Magnuson-Stevens Act, NMFS is 
required to develop management measures to rebuild overfished shark 
stocks and prevent overfishing.
    In March 2007, NMFS presented a predraft of the Amendment 2 to the 
HMS Advisory Panel (72 FR 7860, February 21, 2007). Based in part on 
the comments received during scoping and from the HMS Advisory Panel, 
on July 27, 2007, NMFS developed further and then released the draft 
Amendment 2 to the Consolidated HMS FMP and the associated proposed 
rule (72 FR 41325; 72 FR 41392). The public comment period was 
originally scheduled to end on October 10, 2007; however, it was 
subsequently extended (72 FR 56330, October 3, 2007) and reopened until 
December 17, 2007 (72 FR 64186, November 15, 2007), to provide the 
Regional Fishery Management Councils, the Interstate Marine Fisheries 
Commissions, and the public additional opportunity to submit comments. 
In addition to the written comments submitted, the public verbally 
commented on the proposed rule at five Regional Fishery Management 
Council meetings (New England, Mid-Atlantic, South Atlantic, Gulf of 
Mexico, and Caribbean), an Atlantic States Marine Fisheries Commission 
meeting, ten public hearings, and one HMS Advisory Panel meeting. The 
summary of the comments received and NMFS' responses are provided 
below. Based on these public comments, NMFS re-evaluated the preferred 
alternatives identified in the draft Amendment 2, made changes as 
outlined in Final Amendment 2, and now releases its final rule as 
modified after considering public comment.
    Consistent with the Consolidated HMS FMP objectives, the Magnuson-
Stevens Act, and other applicable law, the objectives for this final 
rule are to: (1) implement rebuilding plans for sandbar, dusky, and 
porbeagle sharks; (2) provide an opportunity for the sustainable 
harvest of blacktip and other sharks, as appropriate; (3) prevent 
overfishing of Atlantic sharks; (4) analyze BLL time/area closures and 
take necessary action to maintain or modify the closures, as 
appropriate; and (5) improve, to the extent practicable, data 
collections or data collection programs.
    The rebuilding plans in Final Amendment 2 to the Consolidated HMS 
FMP considers the recommendations in the stock assessments to be the 
best available scientific information on the status of the species and 
therefore, reflects those recommendations. This includes NMFS 
establishing rebuilding time periods that are as short as possible, 
taking into account the status and biology of the stocks and needs of 
the fishing communities according to National Standard (NS) 1 
guidelines.
    The 2005/2006 stock assessment for the sandbar shark assumed that 
sandbar shark fishing mortality from 2005 to 2007 would be maintained 
at levels similar to 2004 (the last year of data used in the stock 
assessment was from 2004) and that there would be a constant total 
allowable catch (TAC) between 2008 and 2070. Using these assumptions, 
the projections indicated that sandbar sharks would have a 70-percent 
probability of rebuilding by 2070 with a TAC of 220 mt whole

[[Page 40659]]

weight (ww) (158 mt dressed weight (dw))/year and a 50-percent 
probability of rebuilding by 2070 with a TAC of 240 mt ww (172 mt dw)/
year. As described in Amendment 2, NMFS used the 70-percent probability 
of rebuilding to ensure that the intended results of a management 
action are actually realized given the life history traits of sandbar 
sharks.
    Under the rebuilding plan, sandbar sharks are separated from the 
LCS complex, and the base commercial sandbar shark quota is established 
at 116.6 mt dw/year, which results in a total sandbar shark TAC of 
158.3 mt dw (220 mt ww) once other sources of sandbar sharks mortality 
are included. For the first five years of this rebuilding plan (through 
2012), to account for 2007 overharvests, the base commercial quota is 
reduced to 87.9 mt dw. The adjusted base quota through 2012 includes 
the amount of quota that would have been available in the 1\st\ season 
of 2008 had NMFS not closed the fishery during that time. In the final 
rule for the 1\st\ season of 2008, NMFS calculated that 78 mt dw 
(171,959 lb dw) would have been available (November 29, 2007, 72 FR 
67580). However, based on updates to the reported landings, NMFS 
adjusted the 78 mt dw estimate down to 66.2 mt dw (145,944 lb dw). The 
actual commercial quota available in any particular year may fluctuate 
based on overharvests and will be published via appropriate rulemaking 
in the Federal Register.
    Projections in the dusky shark stock assessment indicated that with 
the age-structured production model (i.e., baseline scenario), dusky 
sharks could be rebuilt with a 70-percent probability by the year 2400. 
Other projections from the three other modeling approaches indicate 
that rebuilding of dusky sharks will take between 100-400 years. As 
such, in this final rule, NMFS assumes that the rebuilding timeframe 
that would be as short as possible for dusky sharks would be at least 
100 years. The harvest of dusky sharks has been prohibited since 2000. 
Despite this fact, dusky sharks are still overfished with overfishing 
occurring. NMFS believes this is at least partly due to the fact that 
they are caught as bycatch, predominantly in longline fisheries. Many 
of the final actions in this rule, such as establishing a shark 
research fishery with 100 percent observer coverage and decreasing the 
retention limits of non-sandbar large coastal sharks on all fishing 
vessels, should reduce dusky shark bycatch. This reduction in bycatch 
should aid in rebuilding and in collecting additional information to 
evaluate dusky shark status and catches. In the research fishery, if 
dusky shark catch is high by a particular vessel or in a particular 
region, NMFS could stop that vessel's trip(s) or stop all research 
trips in that region and/or time. Additionally, if NMFS decides, after 
reviewing the data from a particular year, NMFS decides that the catch 
was too high in the research fishery, NMFS could adjust the research 
protocols and reduce effort or modify gear requirements, as needed. For 
the non-research fishery trips, NMFS could either reduce the retention 
limit in an attempt to reduce effort or work with the appropriate 
Regional Fishery Management Council to reduce bycatch mortality in 
certain fisheries, or consider other measures, as appropriate.
    A stock assessment was conducted for North Atlantic porbeagle 
sharks in 2005 by the Canadian Department of Fisheries and Oceans. This 
assessment was reviewed by NMFS scientists who determined it used 
appropriate methodologies and all available fishery and biological data 
including U.S. landings and research. As a result of this review, NMFS 
determined that the assessment constituted the best available science. 
NMFS also determined that because the stock assessed is a unit stock 
that extends into U.S. waters, the assessment and its recommendations 
were appropriate for use in U.S. domestic management. The assessment 
recommended that there is a 70-percent probability of rebuilding in 100 
years if fishing mortality levels are maintained at or below 0.04 
(current fishing mortality level). Considering this science, NMFS 
believes that the rebuilding timeframe that is as short as possible is 
100 years, which will allow a TAC of 11.3 mt dw based on current 
commercial landings of 1.7 mt dw, current commercial discards of 9.5 mt 
dw, and current recreational landings of 0.1 mt dw. This results in a 
commercial porbeagle shark quota of 1.7 mt dw.
    This final rule does not contain detailed information regarding the 
management history of Atlantic sharks or the alternatives considered. 
Those issues are discussed in the preamble of the proposed rule. 
Additional information can also be found in the Final Amendment 2 to 
the Consolidated HMS FMP available from NMFS (see ADDRESSES). This 
final rule contains responses to comments received during the public 
comment period and a description of changes to the rule between 
proposed and final. The description of the changes to the proposed rule 
can be found after the response to comment section.

Response to Comments

    A large number of individuals and groups provided both written and 
verbal comments on the proposed rule during the 143-day comment period, 
10 public hearings, 5 Regional Fishery Management Council meetings, one 
Interstate Marine Fisheries Commission meeting, and one HMS Advisory 
Panel meeting. These comments resulted in numerous changes. The 
comments are summarized below together with NMFS' responses. All of the 
comments are grouped together by major issue. There are 16 major 
issues: Quotas/Species Complexes; Porbeagle Sharks as Prohibited; 
Retention Limits; Fins on Requirement; Time Area Closures; Reporting; 
Seasons; Regions; Recreational Measures; Stock Assessment and Fishery 
Evaluation (SAFE) Report and Stock Assessment Frequency; Research 
Fishery/Preferred Alternative; Comments on Other Alternative Suites and 
Management Measures; Science; National Standards; Economic Impacts; and 
Miscellaneous. The comments are numbered consecutively, starting with 
1, at the beginning of each issue.

1. Quotas/Species Complexes

a. Quotas
    Comment 1: The National Marine Fisheries Service (NMFS) should 
consider reducing the fishing mortality for overfished sandbar sharks.
    Response: NMFS is taking steps to reduce fishing mortality for 
overfished sandbar sharks. In particular, NMFS is reducing the base 
commercial quota for sandbar sharks to 116.6 mt dw. This amount is 
further reduced to 87.9 mt dw from 2008 through 2012 to account for 
2007 overharvests. This is more than an 80-percent reduction in sandbar 
shark landings compared to the status quo (594.4 mt dw). This base 
commercial quota of 116.6 mt dw (which is then adjusted for 
overharvest) combined with estimated discards both within and outside 
the commercial shark fishery (e.g., including other commercial 
fisheries and recreational fisheries) is anticipated to keep sandbar 
mortality below the recommended total allowable catch (TAC) of 158.3 mt 
dw, which gives this stock a 70-percent probability of rebuilding by 
2070, as described in Chapter one of Amendment 2 to the Consolidated 
HMS FMP.
    Comment 2: NMFS should have considered Individual Transferable 
Quotas (ITQs) for the shark fishery in this rulemaking. The quota is 
just too small for the number of participants. Individual Fishing 
Quotas (IFQs) or ITQs would accomplish the same

[[Page 40660]]

objectives as the research fishery. ITQs/IFQs are the fairest, 
simplest, most rational method for this dilemma. NMFS should switch to 
an ITQ system with no trip limit, because a lot of times fishermen do 
not weigh the sharks. Rather, fishermen know their legal trip limit 
based on how they fill their fish boxes. An ITQ system with no trip 
limit would result in fewer dead discards.
    Response: ITQs may be beneficial in many fisheries, and NMFS may 
consider developing an IFQ or Limited Access Privilege Programs (LAPPs) 
for sharks as well as other HMS in the future. NMFS did not consider 
ITQs to be a reasonable alternative for this rulemaking given the 
strict 1-year timeline to which NMFS must adhere in setting up a system 
for rebuilding a fishery under the Magnuson-Stevens Act. Furthermore, 
overfishing of sharks would have continued during an extensive ITQ 
development phase, which would have been inconsistent with NMFS' 
mandate in section 304(e) of the Magnuson-Stevens Act to rebuild 
overfished stocks. The Magnuson-Stevens Act states that for stocks 
identified as overfished or having overfishing occurring, the Secretary 
of Commerce or the relevant Council, as appropriate, shall prepare a 
fishery management plan, plan amendment, or proposed regulations for 
the fishery to end overfishing in the fishery and rebuild affected 
stocks within one year of that determination. NMFS satisfied that 
timing provision: sandbar sharks and dusky sharks were determined to be 
overfished with overfishing occurring on November 7, 2006 (71 FR 
65086), and NMFS published Draft Amendment 2 to the Consolidated HMS 
FMP on July 27, 2007 (72 FR 41325). NMFS notes that the 2006 Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act amended 
section 304(e) to include a two-year timing provision for preparation 
and implementation of actions, and the new provision will be effective 
July 12, 2009.
    Given section 304 and other timing considerations for this action, 
NMFS did not consider an ITQ system as a reasonable alternative, as it 
takes several years to properly design an ITQ system that appropriately 
considers the views of all stakeholders and then to implement such a 
system. The general requirements for ITQs or LAPPs were included in the 
2007 reauthorized Magnuson-Stevens Act (section 303A). Overall, two 
basic things must be done when implementing a LAPP system: 1) determine 
who would receive and who can hold the harvest privileges; and 2) 
define the nature of the harvest privileges. In addition, NMFS is 
currently establishing referenda requirements for LAPPs (for instance, 
a particular allocation scheme must be approved by a given level of the 
industry). In addition, unlike the research fishery, which would allow 
an individual fisherman to target sharks on a yearly basis, allocation 
under an ITQ, IFQ, or LAPP would be for a much longer time period. 
Because fishermen would have these allocations for a long time, NMFS 
traditionally works extensively with all stakeholders to devise the 
best allocation scheme possible for these type of permit programs 
through workshops and other meetings.
    Comment 3: NMFS should reconsider how it calculated the non-sandbar 
Large Coastal Shark (LCS) quota. The non-sandbar LCS quota is low 
because fishermen were not targeting non-sandbar LCS in the past. They 
were targeting sandbar sharks. If fishermen had been targeting non-
sandbar LCS, historical landings would be much higher, and there would 
be a larger non-sandbar LCS quota than is currently proposed.
    Response: NMFS is implementing a larger non-sandbar LCS base quota 
of 627.8 mt dw outside the shark research fishery based on dealer 
reports rather than logbooks, as originally proposed. By using dealer 
reports, NMFS included in its calculations landings outside of NMFS' 
jurisdiction (e.g., state landings) and thus maintained consistency in 
establishing the quota with data used in the stock assessments.
    In using historical landings reported by shark dealers to calculate 
the non-sandbar LCS quota, NMFS follows the recommendations of the 
stock assessments for Gulf of Mexico and Atlantic blacktip shark 
populations. These stock assessments recommended keeping catch levels 
the same in the Atlantic region and not increasing catch levels in the 
Gulf of Mexico region. Basing quotas on dealer reports would cap 
fishing effort at historical levels and keep stocks in the Gulf of 
Mexico healthy and stocks in the Atlantic from declining. Setting 
quotas higher than these levels could have detrimental effects on shark 
stocks.
    Comment 4: NMFS should consider allocating the entire sandbar quota 
to fishermen participating in the research fishery because giving a few 
sandbar sharks to those outside of the research fishery would not be 
worth it. NMFS should also consider only allowing fishermen with 
directed shark permits to participate in the shark fishery.
    Response: NMFS considered the option discussed in the comment. 
Under the final action, NMFS is allocating the entire 87.9 mt dw 
adjusted sandbar quota to the shark research fishery. NMFS will publish 
a Federal Register notice each year, inviting applications from permit 
holders who are willing to participate in the shark research fishery. 
Within that notice, NMFS will publish the selection criteria that NMFS 
would use to select participants for the research fishery. For example, 
depending on the research objectives for a given year, NMFS may 
consider applications from a variety of permit holders, including 
directed, incidental, and charter/headboat (CHB) permit holders, for 
participation in the shark research fishery.
    Comment 5: NMFS should acknowledge that the proposed reduction in 
quotas is the end of the directed shark fishery. NMFS should ensure 
that sharks are not discarded and accommodate incidental landings 
whenever possible.
    Response: The final actions will likely end the directed shark 
fishery for certain species. With the reductions in the sandbar quota, 
the reduction in retention limits, and the prohibition on retaining 
sandbar sharks outside the research fishery, fishermen with directed 
shark permits will likely no longer target LCS outside of the research 
fishery. As described above, these modifications to quotas and 
retention limits are necessary to end overfishing and rebuild 
overfished stocks.
    However, as suggested by the commenter, NMFS tried to accommodate 
incidental landings in other fisheries. Under the final action, 
fishermen can still retain some non-sandbar LCS while they fish for 
other species (e.g., reef fish and snapper-grouper). A fisherman with a 
directed shark permit could harvest 33 non-sandbar LCS per trip and a 
fisherman with an incidental shark permit could land 3 non-sandbar LCS 
per trip. The trip limit for directed shark permit holders is based, in 
part, on BLL observer program data from 2005 to 2007. The observer data 
showed that fishermen with directed shark permits fishing for snapper-
grouper kept, on average, 12 sharks per trip. A 33 non-sandbar trip 
limit should allow fishermen with directed permits to retain sharks 
(besides sandbar sharks) they catch while targeting other species and 
should minimize discards. The incidental trip limit is based on what 
fishermen with incidental permits currently retain under the status 
quo.
    NMFS also considered whether limiting sandbar harvest to the 
research fishery would increase dead discards or if NMFS needed to 
include a trip limit for sandbar sharks. Observer data

[[Page 40661]]

indicate that fishermen targeting species other than sharks (i.e., 
snapper-grouper) catch, on average, one sandbar shark per trip. Given 
that sets on trips not targeting sharks are typically shorter in length 
and duration than sets on trips targeting sharks, it is anticipated 
that sandbar sharks would remain on the gear for less time than on 
trips targeting shark species, and, thus, would have a greater 
likelihood of being released alive. Therefore, the current trip limits 
are not anticipated to result in increased dead discards.
    Comment 6: NMFS needs to take a more a precautionary approach in 
regard to hammerheads, common thresher sharks, and blacktip sharks in 
the Atlantic region, which have an unknown stock status; NMFS should 
follow international organizations such as the International Union for 
the Conservation of Nature (IUCN), and pay attention to red listed 
shark species such as hammerheads, dusky, and sand tiger sharks, which 
would likely be taken (under the quota or as bycatch) in the fishery 
and are particularly depleted. Considering these factors, as well as 
NMFS' poor record for shark recovery to date, NMFS should close the 
commercial shark fishery; NMFS should put a moratorium on LCS fishing 
in the Atlantic until the stock status of Atlantic blacktip sharks is 
known; NMFS should only allow fishing for Atlantic blacktip sharks 
within scientifically derived limits when the population is capable of 
supporting such exploitation and bycatch of prohibited species is 
demonstrated to be insignificant.
    Response: NMFS is implementing management measures based on the 
latest NMFS-conducted stock assessments for blacktip, dusky, and 
sandbar sharks, and the LCS complex, which represent the best available 
peer reviewed science. NMFS is also implementing management measures 
based on the latest Canadian-based stock assessment for porbeagle 
sharks, which NMFS determined represents the best available science. 
The management measures in this final rule are consistent with the 
rebuilding targets established in these shark stock assessments, and 
the rebuilding time periods are as short as possible, taking into 
account the status and biology of the stocks and needs of the fishing 
communities according to NS 1 guidelines.
    In general, shark stock status determinations are based on NMFS-
conducted stock assessments. NMFS uses the Southeast Data, Assessment, 
and Review (SEDAR) process for shark stock assessments, which is open 
to the public and uses the Center for Independent Experts (CIE) to 
provide independent peer reviews of assessment results.
    These assessments consider landings by other countries such as 
Mexico and Canada but contain mostly U.S. data. For shark species that 
may have substantial landings outside of the United States (e.g., blue 
shark), NMFS also relies on the results of the Standing Committee for 
Research and Statistics (SCRS) of the International Commission for the 
Conservation of Atlantic Tunas (ICCAT). These stock assessments are 
conducted with scientists and data from throughout the world, including 
U.S. scientists and data. In the case of porbeagle sharks, SCRS 
determined that ICCAT did not need to conduct a stock assessment since 
Canada had already conducted one. As such, NMFS scientists reviewed the 
Canadian stock assessment and determined it was appropriate for use in 
domestic management.
    To date, NMFS has not relied on outside organizations, such as the 
IUCN, when making stock status determinations. This is due to the 
unknown nature of the data and peer review methodology applied by these 
outside groups.
    The latest blacktip shark assessments recommended not increasing 
catch levels in the Gulf of Mexico and keeping catch levels at 
historical levels in the Atlantic. To account for differences in catch 
between the Gulf of Mexico and Atlantic region and to follow 
recommendations from the blacktip shark stock assessments, NMFS is 
implementing a Gulf of Mexico non-sandbar LCS regional quota and an 
Atlantic non-sandbar LCS regional quota based on historical landings 
from HMS shark dealer reports from 2003 to 2005. Based on dealer 
reports, the Atlantic region has a lower non-sandbar LCS base quota 
(188.34 mt dw) than the Gulf of Mexico region (439.5 mt dw). Since the 
Atlantic blacktip shark stock assessment recommended not changing 
landings and did not recommend prohibiting the harvest of blacktip 
sharks, NMFS is implementing this regional quota based on historical 
landings in the Atlantic region.
    Unlike the sandbar shark assessment, which recommended a specific 
TAC, or the blacktip stock assessments, which recommended specific 
catch levels, the dusky shark assessment did not give specific 
mortality targets. Dusky sharks have been on the prohibited species 
list in 2000; however, there continue to be dusky shark discards in 
other fisheries. NMFS estimated reduction in dusky shark mortality as a 
result of sandbar shark and non-sandbar LCS management actions. Based 
on the reduced quotas and trip limits, NMFS estimates that dusky shark 
mortality will likely be reduced from 33.1 mt dw to 9.1 mt dw per year. 
This is a 73-percent reduction in mortality compared to the status quo, 
which should help rebuild the dusky shark population and afford dusky 
sharks more protection compared to the status quo.
    Finally, NMFS is aware of a separate external hammerhead shark 
stock assessment that is being conducted, but not aware of separate 
stock assessments for common threshers or sand tiger sharks. Conducting 
stock assessments at a species specific level is difficult due to the 
lack of species-specific information collected to conduct stock 
assessments for each species of sharks involved in commercial shark 
fisheries. Therefore, species such as hammerhead sharks and common 
threshers are managed within species complexes. While NMFS is not 
implementing management measures for hammerhead sharks, it is likely 
that hammerhead shark landings will be reduced due to the reduced non-
sandbar LCS quota and retention limits.
    NMFS has not considered specific management actions for common 
threshers in this rulemaking, but an annual quota is in place for the 
pelagic shark complex (488 mt dw), and underharvests of this complex 
are not applied to the next season. NMFS may consider additional 
management actions for this species, as warranted, in the future.
    For sand tiger sharks, based on their high vulnerability to 
exploitation and to discourage any future directed fisheries, NMFS 
included these sharks on the prohibited species list in 1997. 
Additionally, as with the dusky sharks, a reduction in discards based 
on the sandbar shark and non-sandbar LCS quotas and management actions 
taken in this rulemaking should afford additional protection for sand 
tiger sharks.
    Comment 7: NMFS should include landings by states, such as 
Louisiana and Alabama, against the Federal shark quota.
    Response: NMFS counts both Federal and state landings of sharks 
against the Federal shark quota since sharks in both state and Federal 
waters contribute to the stocks that are federally managed. This 
approach is consistent with that used by NMFS to manage other Federal 
fisheries such as reef fish and snapper grouper.
    Comment 8: NMFS should consider species-specific quotas. NMFS 
should begin with blacktip sharks, since an assessment was done for 
them in both

[[Page 40662]]

the Gulf of Mexico and Atlantic. This is because of variation in life 
history parameters, different intrinsic rates of increase, and 
different catch and abundance data for all species listed in each 
complex. Managing sharks as a complex is inappropriate.
    Response: NMFS is moving towards species-specific management, 
including species-specific quotas. However, for some species, NMFS has 
only limited data which requires management to be based on species 
within a complex. Based on the latest stock assessment, NMFS has 
removed sandbar sharks from the LCS complex, resulting in a sandbar 
shark quota, and a non-sandbar LCS quota, comprised of blacktip, bull, 
smooth hammerhead, scalloped hammerhead, smooth hammerhead, lemon, 
nurse, silky, tiger, and spinner sharks. The sandbar shark assessment 
gave a specific TAC for sandbar sharks, which resulted in NMFS 
accounting for sandbar shark mortality in all fisheries (both 
commercial and recreational sectors) before establishing a base 
commercial quota of 116.6 mt dw. In order to monitor this quota, NMFS 
removed sandbar sharks from the LCS complex and set a separate 
commercial quota for this species.
    However, while separate blacktip shark assessments were conducted, 
NMFS has decided not to implement separate blacktip shark quotas 
because the shark fishery is a multi-species fishery. The majority of 
sharks harvested in the directed shark fishery, other than sandbar 
sharks, are blacktip sharks. For instance, 82-percent of sharks caught 
in the directed shark fishery in the Gulf of Mexico region are blacktip 
sharks (not including sandbar sharks). The next highest landings were 
for hammerhead sharks at 7-percent and bull sharks at 5-percent. The 
South Atlantic region had the same pattern with the highest percentage 
of landings, apart from sandbar sharks, for blacktip sharks at 72-
percent followed by hammerhead sharks at 14-percent, and then bull 
sharks at 4-percent. Because NMFS did not have species-specific 
assessments on other species besides blacktip and sandbar sharks, and 
because the majority of the LCS catch, not including sandbar sharks, is 
blacktip sharks, NMFS created a non-sandbar LCS complex with its own 
quota. To account for differences in catch between the Gulf of Mexico 
and Atlantic region, NMFS is implementing a regional Gulf of Mexico 
non-sandbar LCS quota and an Atlantic non-sandbar LCS quota.
    Comment 9: NMFS should split the sandbar quota between research and 
bycatch. This could be a ``phased-in'' quota system where \2/3\ of the 
quota in the first year would be allocated toward incidental landings 
and \1/3\ would be allocated toward research.
    Response: In establishing the base commercial quota of 116 mt dw, 
NMFS allocated approximately 42 mt dw to account for recreational 
harvest and dead discards. A further allocation of \1/3\ of the base 
commercial quota for the research fishery in the first year would only 
result in 38.8 mt dw for research. In addition, due to overharvests in 
2007 (see Appendix C in the FEIS for more details), NMFS is reducing 
the base commercial sandbar shark quota to 87.9 mt dw annually for five 
years. A \1/3\ allocation of this reduced base commercial quota would 
only leave 29.3 mt dw of sandbar quota available for research. One 
third of either the base annual quota or the adjusted five year quota 
would not provide enough trips or observations to produce statistically 
sound data on the several research questions NMFS intends to address, 
especially given that NMFS has already accounted for dead discards and 
recreational harvest in setting the base commercial quota. In addition, 
a \2/3\ allocation of the sandbar quota would only allow fishermen 
(directed or incidental) to retain a few sandbar sharks (less than what 
was proposed under alternative suite 3, where all permit holders would 
have been allowed to retain sandbar sharks). Thus, splitting the quota 
into thirds would not provide benefits to the fishery or to the 
research needed for future stock assessments. However, as funds are 
available, NMFS would have scientific observers on vessels fishing 
outside the research fishery that would monitor discards of sandbar 
sharks. If large number of sandbar dead discards occurred in the 
fishery, resulting in mortality above the recommended TAC, NMFS would 
take management action, as necessary. Additionally, NMFS will monitor 
landings of sandbar shark by state fishermen and deduct those landings 
from the base commercial quota, as needed.
    Comment 10: NMFS should not use the maximum rebuilding time period 
(70 years) allowed under the law but should use a more precautionary 
approach. NMFS should not strive for maximum sustainable yield (MSY) 
for blacktip and sandbar sharks. The proposed sandbar shark quota of 
116 metric tons (mt) is too high to ensure recovery of this population 
and NMFS should consider adopting an even lower final number.
    Response: The 2005/2006 stock assessment for sandbar sharks 
discussed three rebuilding scenarios, including: a rebuilding timeframe 
if no fishing were allowed; a TAC corresponding to a 50-percent 
probability of rebuilding by 2070; and a TAC corresponding to a 70-
percent probability of rebuilding by 2070. Under no fishing, the stock 
assessment estimated that sandbar sharks would rebuild in 38 years. 
Under the NS 1 guidelines, if a species requires more than 10 years to 
rebuild, even in the absence of fishing mortality, then the specified 
time period for rebuilding may be adjusted upward by one mean 
generation time. Thus, NMFS added a generation time (28 years) to the 
target year for rebuilding sandbar sharks. The target year is the 
number of years it would take to rebuild the species in the absence of 
fishing, or 38 years for sandbar sharks. NMFS determined that the 
rebuilding time that would be as short as possible for sandbar sharks 
would be 66 years, taking into account the status and biology of the 
species and severe economic consequences on fishing communities. This 
would allow sandbar sharks to rebuild by 2070 given a rebuilding start 
year of 2004, the last year of the time series of data used in the 
2005/2006 sandbar shark stock assessment. Since sharks are caught in 
multiple fisheries, to meet the rebuilding timeframe under a no fishing 
scenario, NMFS would have to implement restrictions in multiple 
fisheries to eliminate mortality, such as entirely shutting down 
multiple fisheries to prevent bycatch. If NMFS were to shut down the 
shark fishery completely, such action would likely have severe economic 
impacts on the fishing community and it would likely result in 
difficulties for fisheries in which Councils recommend management 
measures as well as Commission-managed fisheries, which often catch 
sharks as bycatch. In addition, prohibiting all fishing for sharks 
would impact NMFS' ability to do collect data for future management.
    The recommended TAC associated with a 50-percent probability of 
rebuilding by 2070 is 172.7 mt dw (or 240 mt whole weight (ww)). 
However, given the life history of sharks including slow growth, late 
age of maturity, and relatively small litter sizes, as described in the 
1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks 
(1999 FMP), a 50-percent probability of success is minimally acceptable 
for sharks. Thus, NMFS adopted the TAC corresponding to a 70-percent 
probability of rebuilding by 2070, or 158.3 mt dw (220 mt ww). This 
timeframe is consistent with the Magnuson-Stevens Act, the NS 1 
guidelines at Sec.  600.310, the 2006 Consolidated HMS FMP (which

[[Page 40663]]

includes the rebuilding requirements of the 1999 FMP), and the other 
national standards that require NMFS to consider, among other things, 
the economic and social impacts of the fishery.
b. Discard Issues
    Comment 11: NMFS should consider sandbar shark discards outside the 
research fishery. NMFS should also be concerned with derby-style 
fishing with the reduced quotas and retention limits.
    Response: NMFS considered sandbar shark discards outside the shark 
research fishery when it established the base sandbar shark quota (see 
Table A.1 in Appendix A of the Final EIS). In doing so, NMFS set a 
commercial sandbar shark quota that, in addition to considering 
discards in other fisheries outside the shark research fishery, should 
keep sandbar shark mortality below the recommended TAC of 158.3 mt dw 
each year. In order to deter derby-style fishing outside the shark 
research fishery, NMFS reduced the trip limit for directed shark permit 
holders to 33 non-sandbar LCS per trip. This trip limit should allow 
the LCS fishery to stay open longer than it has in the past while also 
minimizing, to the extent practicable, regulatory discards and derby-
style fishing.
    Comment 12: NMFS should acknowledge that dusky shark bycatch will 
be an issue both inside and outside the research fishery. Seventy 
percent of dusky sharks are dead at haulback.
    Response: Dusky sharks caught as bycatch under the new management 
measures would result in dead discards to the same extent as current 
levels. Currently, most of the dusky shark discards occur within the 
directed shark fishery (on average, 24.5 mt dw per year), with a total 
of 33.2 mt dw of dusky sharks discarded on average per year. Under the 
final action, there would no longer be a directed LCS fishery. For a 
limited number of trips, the few vessels that qualify for participation 
in the shark research fishery will be allowed to direct on LCS. 
Depending on the number of trips taken within the research fishery, 
NMFS estimates that yearly dusky shark discards could be between 0.5 mt 
dw (that would be caught during 64 trips associated with the adjusted 
sandbar shark quota) and 0.6 mt dw (that would be caught during 92 
trips associated with the base sandbar shark quota), with a total of 
9.1 mt dw of dusky shark discards across all fisheries. This is a 73-
percent reduction in dusky shark discards compared to the status quo.
    Comment 13: NMFS should evaluate if highgrading will be an issue 
outside the research fishery.
    Response: Under the final action, highgrading, or the discarding of 
smaller, less valuable animals and retaining only the most valuable 
animals to fill a retention limit, is expressly prohibited. However, 
because fishermen aim to have the highest profits per trip, highgrading 
can be an issue whenever trip limits are implemented.
    Based on the latest shark stock assessments, NMFS is implementing a 
reduced shark trip limit from 4,000 lb of LCS per trip to 33 non-
sandbar LCS per trip for directed permit holders operating outside the 
research fishery. NMFS expects that this reduced trip limit 
(approximately one quarter of what a directed fisherman lands on a 
shark trip under the status quo) and the prohibition on the retention 
of sandbar sharks will result in fishermen with directed shark permits 
no longer targeting LCS. Additionally, this trip limit is higher than 
the average number of sharks shark fishermen currently retain when 
targeting other species (i.e., 12 sharks from non-targeted trips). 
Thus, NMFS assumes that the reduced trip limit will allow fishermen 
with directed shark permits to keep all incidentally caught non-sandbar 
LCS as they target non-sharks species. Because fishermen will likely be 
allowed to keep all sharks caught when fishing for other species, the 
reduced trip limit should reduce the incentive to engage in 
highgrading.
c. Species Complexes
    Comment 14: NMFS should reconsider the use of the term ``non-
sandbar LCS.'' This title is awkward and might confuse some fishers. 
The use of ``LCS'' or ``LCS (other than sandbars)'' is recommended 
following the same logic as when referring to ``pelagic sharks'' (which 
otherwise would be referred to as non-blue or porbeagle pelagic 
sharks.)
    Response: NMFS considered several names for the group of LCS that 
does not include sandbar sharks. NMFS felt keeping the title ``LCS'' 
for the new complex may be confusing with the ``old'' LCS complex 
(i.e., the complex prior to the implementation of the amendment). NMFS 
chose ``non-sandbar LCS'' because it was the most explicit description 
of the new complex: the LCS complex with sandbar sharks removed.
    Comment 15: NMFS is taking sandbars out of the LCS complex. Where 
did NMFS get the authority to remove a given species from a complex?
    Response: NMFS has the authority under the Magnuson-Stevens Act to 
manage all coastal sharks. As part of this authority, NMFS created the 
complexes in 1993 to aid in managing the fishery. Thus, NMFS may set 
species-specific quota as appropriate, given the best available 
science. Indeed, NMFS has often changed the specific species in each 
management unit starting with the creation of five prohibited species 
in 1997. In this case, the sandbar shark assessment gave a specific TAC 
for sandbar sharks, which resulted in NMFS establishing a base 
commercial quota of 116.6 mt dw. In order to monitor this quota, NMFS 
is establishing a quota for sandbar sharks that is separate from the 
quota for the rest of the LCS complex.
    Comment 16: The Director of the North Carolina Division of Marine 
Fisheries stated that NMFS should place blacktip sharks in the small 
coastal shark (SCS) complex.
    Response: NMFS is not changing the composition of the SCS complex 
in this rulemaking. Rather, based on the TAC recommended by the sandbar 
shark stock assessment, NMFS is establishing separate quotas for 
sandbar sharks and the non-sandbar LCS. The non-sandbar LCS complex 
consists of blacktip, bull, smooth hammerhead, scalloped hammerhead, 
lemon, nurse, silky, tiger, and spinner sharks. Blacktip sharks are the 
species most commonly caught within this complex. In the 1993 FMP for 
Atlantic Sharks, blacktip sharks were placed within the LCS complex 
based on fishery dynamics. Blacktip sharks are more commonly caught 
with gear targeting LCS (i.e., BLL gear) rather than gear used to 
target SCS (i.e., gillnet gear). In addition, the blacktip shark stock 
assessments recommended that blacktip shark landings should not change 
or increase from historical catch levels. By placing blacktip sharks 
within the SCS complex, NMFS could either drastically reduce the 
blacktip shark regional quotas if the 454 mt dw SCS complex quota was 
not increased (i.e., the 454 mt dw quota would include the quota for 
blacktip sharks and SCS), or increase the SCS complex quota to include 
historical catch of blacktip sharks. Placing blacktip sharks within the 
SCS complex and increasing the overall SCS quota could result in 
increased catch levels of SCS. These catch levels may or may not be 
sustainable for the SCS complex. Therefore, at this time, NMFS is not 
placing blacktip sharks within the SCS complex.

[[Page 40664]]

d. Over- and Underharvests
    Comment 17: NMFS received several comments regarding transferring 
quota. These include: NMFS should consider transferring unused quota to 
the next season; NMFS should not consider transferring underharvests to 
the next season even if species are not overfished or the status is 
unknown. This is because other bodies such as the IUCN have expressed 
concern as to some of these species; NMFS should subtract quota 
overages from the subsequent season's quota and disallow carryover of 
underharvests to the next season for populations that are of unknown 
status, overfished, or experiencing overfishing.
    Response: Under the final action, NMFS will generally subtract 
overhavests that occurred during one fishing year from the next fishing 
year for each individual species or species group. Depending on the 
amount of overharvests, NMFS may decide to split the overharvests over 
several years to allow continuation of the shark research fishery and 
to minimize dead discards. In addition, NMFS will add underharvests up 
to 50-percent of the base quota to the next fishing year for species or 
species grouping in which the stock status of all species is other than 
unknown, overfished, or subject to overfishing. For all other species 
and species groups, underharvests will not be carried. Not applying 
underharvests should increase the likelihood that these stocks rebuild 
in a timelier manner. This approach is also used in other fisheries 
that NMFS manages, including bluefin tuna and swordfish.
e. Shark Display and Research Quota
    Comment 18: NMFS received several comments in favor of the 
preferred management measures affecting display quotas under 
alternative suite 4. These comments included: NMFS should allocate 2 mt 
dw of sandbar sharks from the overall 60 mt ww display and shark 
research quota to public display and research under exempted fishing 
permits (EFPs); the 60 metric tons (mt ww) quota for display permits 
and research should be reduced if it has never been attained; NMFS 
should prohibit dusky sharks for public display; and, dusky sharks have 
no display value.
    Response: In order to stay within the TAC recommended by the 
sandbar stock assessment, NMFS is reducing the commercial sandbar shark 
quota, and restricting the number of sandbar sharks that can be 
collected under EFPs and Display Permits. The final action restricts 
the sandbar shark collection to 1 mt dw for research under EFPs and 1 
mt dw for public display to ensure that the sandbar shark mortality 
stays below the 158.3 mt dw TAC and to ensure that the shark research 
fishery has sufficient quota to produce statistically sound data. The 
preferred allocations to the EFP and display quotas were based on the 2 
mt dw average annual collection of sandbar sharks under EFPs, 
scientific research permits (SRPs), and display permits from 2000 to 
2006. As such, NMFS does not anticipate that these restrictions will 
affect future sandbar shark collections under these types of permits.
    Due to the severity of the overfished and overfishing status of 
dusky sharks, the collection of dusky sharks for public display will be 
prohibited. Aquariums that currently have dusky sharks will not be 
allowed to replace them. In addition, NMFS will review the allocation 
of dusky sharks for research under EFPs on a case by case basis. This 
should allow for research under EFPs on dusky sharks to continue, as 
appropriate.
    Comment 19: NMFS received numerous comments stating that the 
existing research/display quotas for sharks should not be reduced 
because: the quota is already small and not expected to increase in the 
future; the EFP quota has never been exceeded; the collection of 
sandbar sharks for public display is not a significant contributing 
factor to the reported decline of this stock; there is a 
disproportionate amount of regulation on display permits compared to 
other permits for other fishermen; any reduction in quotas or 
restrictions on species, if scientifically warranted and if based on 
scientifically peer-reviewed stock assessments, should come entirely 
out of the commercial quotas which have not been historically adhered 
to, and where the animals are landed dead with zero conservation or 
educational value; the sandbar shark is one of only a handful of shark 
species that are exceptionally hardy and have historically adapted well 
to closed aquarium environments.
    Response: While the 60 mt ww (or 43.2 mt ww) shark display and 
research quota is small compared to the current commercial 1,017 mt dw 
LCS quota, the final action does not change the overall display and 
research quota. The final action, however, does significantly reduce 
the commercial quota and prohibits most commercial fishermen from 
harvesting sandbar sharks. Additionally, the final action prohibits 
recreational retention of sandbar sharks.
    As described in the response to Comment 18 in this section, the 
quantity of sandbar and dusky sharks authorized for display and 
research (outside of the shark research fishery) is limited under the 
final action. For sandbar sharks, the amount is limited to what has 
been landed, on average, under various EFPs during the past six years. 
Therefore, no negative economic impacts are anticipated with the EFP 
allocation of sandbar sharks. EFPs and display permits will no longer 
be issued for the collection of dusky sharks. This regulation is 
consistent with the prohibition on the harvest of dusky sharks by 
commercial and recreational fishermen and, because of the overfished 
status and length of time for rebuilding, is appropriate for dusky 
sharks.
    Finally, because EFPs exempt fishermen from certain regulations 
that other fishermen must follow, NMFS will continue to issue EFPS, 
SRPs, and display permits only if the applicant has shown compliance 
with other relevant regulations regarding reporting, notifying 
enforcement, and tagging animals.
    Comment 20: NMFS should consider an exemption to allow for the live 
take of dusky sharks for public display. Aquariums need to work on the 
husbandry of these sharks.
    Response: As discussed in the response to Comment 18 in this 
section, due to the severity of the overfished and overfishing status 
of dusky sharks, dusky sharks will be prohibited for collection for 
public display. Moreover, dusky sharks do not do well in captivity. 
Currently, only 13 dusky sharks per year have been collected under 
EFPs. Under the final action, NMFS will review the allocation of dusky 
sharks for research under EFPs on a case by case basis. This should 
allow for research under EFPs on dusky sharks to continue, as 
appropriate.
    Comment 21: NMFS should explain how it will prohibit sandbar and 
dusky sharks for EFPs and display permits.
    Response: EFPs allow fishermen to harvest species otherwise 
prohibited by existing regulations. NMFS is not prohibiting the 
collection of sandbar sharks under the EFP program. Instead, 1 mt dw 
for research under EFPs and 1 mt dw for public display will be 
allocated to fishermen to ensure that the sandbar shark mortality stays 
below the 158.3 mt dw TAC. However, due to the severity of the 
overfished and overfishing status of dusky sharks, dusky sharks will be 
prohibited for collection for public display because they do not do 
well in captivity. While NMFS cannot prohibit fishermen from 
incidentally catching dusky sharks, NMFS can prohibit their retention 
for public display or research under EFPs when necessary. NMFS reviews 
the

[[Page 40665]]

allocation of dusky and sandbar sharks under EFPs and Display Permits 
on a case-by-case basis. If research on dusky sharks is deemed 
scientifically necessary, even if it includes mortality, NMFS may issue 
the necessary EFPs. However, such permits must have scientific merit 
and the research conducted by scientific staff in order for the permit 
to be issued. As is currently done for EFPs and Display permits, NMFS 
will continue to monitor all sources of mortality as a result of EFPs, 
Display Permits, Scientific Research Permits, and Letters of 
Acknowledgments, and these data will be incorporated in future stock 
assessments.
    Comment 22: NMFS should provide more information on how they track 
landings under EFPs and what happens to HMS that are collected under 
EFPs.
    Response: NMFS requires persons who receive EFPs to report the 
number of total animals kept, discarded alive, and discarded dead under 
the EFP program. This information is published in the Federal Register 
every November/December in conjunction with NMFS' request for comments 
and Notice of Intent to issue EFPs and related permits in the 
subsequent year. The information is also published in the annual SAFE 
Report and may be used in stock assessments, if appropriate. Permittees 
who do not provide this information are not issued a permit in the 
future until all required reporting from past permits was received. 
NMFS does not track what is done with the animals (e.g., if they are 
sold to aquariums) after they have been collected and landed by the 
original permittees.

2. Porbeagle Sharks as Prohibited

    Comment 1: NMFS received several comments in support of prohibiting 
the harvest of porbeagle sharks including: NMFS should prohibit the 
harvest of porbeagle sharks because even seasoned fishermen misidentify 
porbeagle sharks as mako sharks; the prohibition on the possession of 
porbeagle sharks is long overdue; NMFS should prohibit the harvest of 
porbeagle sharks and implement stricter management measures that 
address porbeagle take, including bycatch; and NMFS should prohibit the 
possession of porbeagle sharks, however, if bycatch of porbeagle sharks 
is allowed, the rule will have little effect on the overall status of 
porbeagle sharks.
    Response: As a result of the 2005 Canadian stock assessment for the 
North Atlantic porbeagle shark, NMFS has determined that porbeagle 
sharks are overfished, but overfishing is not occurring Under the final 
action, the commercial quota is 1.7 mt dw. NMFS estimates that 
commercial discards will be approximately 9.5 mt dw, and recreational 
catch, including landings in tournaments, will be approximately 0.1 mt 
dw per year. This TAC of 11.3 mt dw should increase the likelihood that 
fishing mortality will remain low, allowing the stock to rebuild within 
100 years (see rebuilding plan in Chapter 1 of the FEIS). While bycatch 
of porbeagle sharks will continue, the majority of porbeagle sharks 
caught currently are discarded alive. For instance, of an average of 
723 porbeagle sharks that were discarded annually in the PLL fishery, 
only 161.3 were discarded dead whereas 561.6 were discarded alive. The 
final action is not expected to change this discard mortality rate. 
Therefore, dead discards should continue to be low and not negatively 
affect the stock.
    Comment 2: NMFS received several comments, including comments from 
the states of Massachusetts and New Hampshire, opposing any prohibition 
of porbeagle shark retention including: there is a small historical 
porbeagle shark catch in the United States that is not significantly 
contributing to the loss of the porbeagle shark. The U.S. porbeagle 
fishery has remained sustainable under current regulations; other 
countries, such as Canada, should be more responsible for rebuilding 
this stock as they contribute more towards Atlantic-wide fishing 
mortality; NMFS should pressure Canadians to reduce their porbeagle 
catch; porbeagle sharks are the only big game fish in the Northeast; 
and placing porbeagle sharks on the prohibited species list takes away 
33-percent of the potential catch in New England.
    Response: The final action to reduce the TAC for porbeagle sharks 
will cap U.S. fishing mortality at the current level. Given the low 
level of porbeagle catch in U.S. waters, capping mortality at the 
current U.S. fishing level, assuming Canada also continues to take 
action to conserve porbeagle sharks, should allow the porbeagle shark 
population to rebuild within 100 years (see rebuilding plan in Chapter 
1 of the FEIS). Capping fishing levels should also discourage any 
future directed fishery on this species.
    Other countries that have a directed fishery for porbeagle sharks 
have reduced their porbeagle quotas. For instance, the Canadian 
porbeagle quota was cut by 80-percent in 1998. It was cut back even 
further in 2001 and again in 2006. The current Canadian quota is 250 mt 
per year, 185 mt of which may be taken by the directed porbeagle shark 
fishery, with the rest of the quota being allocated for bycatch. In 
addition, according to the latest ICCAT Recommendation (07-06), all 
contracting parties are obligated to reduce mortality of porbeagle 
sharks in their directed porbeagle shark fisheries. NMFS may take 
additional management measures in the future, as necessary, if future 
stock assessments warrant such action.
    Comment 3: The Atlantic States Marine Fisheries Commission (ASMFC) 
requested establishing a 2 mt quota for porbeagle sharks to allow a 
limited harvest. Allowing a small harvest of porbeagle sharks would 
help the ASMFC set identical species groups while offering protection 
from overharvest.
    Response: NMFS is setting a reduced TAC for porbeagle sharks of 
11.3 mt dw, of which 1.7 mt dw is allocated to commercial harvest. This 
cap on fishing mortality at its present level by commercial and 
recreational fishermen should prevent a directed fishery for this 
species from developing in the future. In addition, it is an 88-percent 
reduction in the current commercial quota of 92 mt dw, which will help 
ensure rebuilding within 100 years (see rebuilding plan in Chapter 1 of 
the FEIS).
    Comment 4: Does NMFS have any evidence that Canadian porbeagle 
sharks go into U.S. waters? Is NMFS aware if U.S. fishermen are 
catching these Canadian sharks?
    Response: Tagging data provide strong evidence that there are 
distinct porbeagle populations in the Northeast and Northwest Atlantic, 
and that the Northwest Atlantic stock is a separate population that 
undertakes extensive annual migrations between Canada and northeastern 
United States. Given these migrations, porbeagle sharks found in U.S. 
and Canadian waters are considered to be one stock that is shared by 
U.S. and Canadian fishermen.
    Comment 5: If porbeagle sharks are overfished but overfishing is 
not occurring, what would the rebuilding timeframe be if the fishery 
was to continue at the current level?
    Response: Since the 2005 Canadian stock assessment on which NMFS 
based its analysis included U.S. commercial landings of porbeagle 
sharks, capping fishing mortality at its current level should allow the 
species to rebuild within 100 years (see rebuilding plan in Chapter 1 
of the FEIS).
    Comment 6: Will NMFS propose similar porbeagle shark prohibition 
measures at the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) meeting this year? Since most landings for 
porbeagle

[[Page 40666]]

occur outside the United States, international cooperation is needed to 
help manage this species.
    Response: Adopted at the 2007 ICCAT annual meeting in Turkey, ICCAT 
Recommendation (07-06) obligates all Contracting Parties to take 
appropriate measures to reduce fishing mortality in fisheries targeting 
porbeagle sharks. While the United States does not have a directed 
porbeagle shark fishery, and U.S. commercial and recreational landings 
are small (1.8 mt dw), this ICCAT measure should help reduce mortality 
of porbeagle sharks that are targeted by other countries. The United 
States is also implementing a reduced TAC of 11.3 mt dw, which is below 
the current commercial quota of 92 mt dw per year for porbeagle sharks, 
and encouraging the live release of porbeagle sharks. This final action 
should prevent a directed fishery from developing for porbeagle sharks 
in U.S. waters in the future.
    Comment 7: NMFS underestimated the number of porbeagle sharks being 
caught. This is because the Marine Recreational Fisheries Statistics 
Survey (MRFSS) data is flawed. Porbeagle sharks are not present in New 
England waters when MRFSS is collecting their surveys in this area.
    Response: NMFS currently is working on a marine recreational 
information program to improve data collection from the recreational 
sector. Due to the rarity of porbeagle shark landings, it is difficult 
to estimate porbeagle landings with survey data, which only sample a 
portion of the recreational fishing fleet and then extrapolate the 
number of fish caught based on the estimated number of anglers. 
Therefore, NMFS may consider census data (i.e., a trip ticket or a 
call-in system where all porbeagle shark landings are counted) in the 
future to better estimate recreational porbeagle landings.
    Comment 8: The Large Pelagic Survey (LPS) started out as a tuna 
survey, and the LPS survey happens during the middle of summer. There 
is no LPS survey taking place when porbeagle sharks are present, so 
NMFS' data is skewed.
    Response: The LPS survey was designed to capture recreational 
landings in the Northeast during the time period when most fishing 
takes place north of Virginia. Currently, the survey consists of 
randomly selected weekly telephone and dockside intercept interviews, 
with mandatory participation from June 1 through October 31 from 
Virginia to New York. The survey is conducted July 31 through October 
31 for states north of New York. Past phone surveys indicated this is 
when most of the fishing effort occurs in this region. As mentioned in 
the response to Comment 7 in this section, due to the rarity of 
porbeagle shark landings, it is difficult to estimate porbeagle 
landings with survey data. Therefore, NMFS may consider census data 
(i.e., trip ticket or a call-in system where all porbeagle sharks 
landed are counted) in the future to better estimate recreational 
porbeagle landings.
    Comment 9: NMFS should have recreational fishermen report their 
porbeagle shark landings.
    Response: NMFS currently does not require recreational fishermen to 
report shark landings. NMFS collects data on recreational fishing catch 
and effort through the LPS and the MRFSS, which is considered the best 
available science for determining recreational landings. These surveys 
collect data on fishing effort and catch of highly migratory species. 
In addition, randomly selected fishing tournaments are an important 
component of HMS recreational fisheries data. However, because of the 
rarity of porbeagle shark landings, in general, NMFS may not be 
capturing all of the porbeagle sharks landed recreationally through 
these types of surveys. Thus, NMFS is currently working on ways to 
gather more data on recreational landings of porbeagle sharks.

3. Retention Limits

    Comment 1: The proposed 22 non-sandbar LCS retention limit is not 
economically feasible and is the equivalent of shutting down the 
fishery; NMFS should consider a trip limit of 0 to 75 non-sandbar LCS 
to maintain economic viability.
    Response: NMFS assessed and analyzed the economic impacts of the 
proposed retention limits, which are summarized in the FRFA and Chapter 
8 of the FEIS. The proposed 22 non-sandbar shark LCS retention limit 
was calculated by dividing the available quota over average annual 
number of trips that landed non-sandbar LCS by directed and incidental 
permit holders as reported in the Coastal Fisheries logbook and the HMS 
logbooks.