Atlantic Highly Migratory Species; Atlantic Shark Management Measures; Amendment 3, 30484-30528 [2010-12407]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Rules and Regulations]
[Pages 30484-30528]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12407]



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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; Atlantic Shark Management Measures; 
Amendment 3; Final Rule

Federal Register / Vol. 75 , No. 104 / Tuesday, June 1, 2010 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 635

[Docket No. 080519678-0217-02]
RIN 0648-AW65


Atlantic Highly Migratory Species; Atlantic Shark Management 
Measures; Amendment 3

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

ACTION: Final rule.

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SUMMARY: NMFS publishes this final rule implementing the Final 
Amendment 3 to the Consolidated Atlantic Highly Migratory Species (HMS) 
Fishery Management Plan (FMP). As it developed Amendment 3, NMFS 
examined a full range of management alternatives available to rebuild 
blacknose sharks and end overfishing of blacknose and shortfin mako 
sharks, consistent with recent stock assessments, the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), and 
other applicable law, and evaluated options for managing smooth dogfish 
as a highly migratory species under the HMS FMP. This final rule 
implements the final conservation and management measures in Amendment 
3 for blacknose sharks, shortfin mako sharks, and smooth dogfish. In 
order to reduce confusion with spiny dogfish regulations, this final 
rule places both smooth dogfish and Florida smoothhound into the 
``smoothhound shark complex.'' This final rule also announces the 
opening date and 2010 annual quotas for small coastal sharks (SCS). 
These changes could affect all fishermen, commercial and recreational, 
who fish for sharks in the Atlantic Ocean, the Gulf of Mexico, and the 
Caribbean Sea.

DATES: The SCS fishery opens on June 1, 2010.
    This final rule is effective on July 1, 2010, except for the 
amendments to Sec. Sec.  635.27(b)(1)(i) through (v) and 635.28(b) 
which will be effective on June 1, 2010.
    However, Sec. Sec.  635.4(e)(4), 635.20(e)(4), 635.22(c)(6), 
635.24(a)(7), 635.27(b)(1)(vi), 635.27(b)(2)(iv), and section E of 
Table 1 of Appendix A, contain information collection requirements 
which are pending approval by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act (PRA). A document will be published 
in the Federal Register announcing the effective date of those 
provisions when they are approved.

ADDRESSES: Copies of the final Amendment 3 to the Consolidated HMS FMP, 
including the Final Environmental Impact Statement (FEIS), the latest 
shark stock assessments, and other documents relevant to this rule are 
available from the Highly Migratory Species Management Division Web 
site at https://www.nmfs.noaa.gov/sfa/hms or by contacting LeAnn 
Southward Hogan or Karyl Brewster-Geisz at 301-713-2347. Hard copies 
may also be requested by writing to the HMS Management Division, 1315 
East-West Highway, Silver Spring, MD 20910, or faxing to (301) 713-
1917.
    NMFS has not yet submitted an application to OMB for approval of 
the collection-of-information regarding the smoothhound shark permit. 
The implementation of this specific requirement is delayed pending 
approval by OMB. Once submitted, written comments regarding the burden-
hour estimates or other aspects of the collection-of-information 
requirements may be submitted to Karyl Brewster-Geisz (see above) and 
by e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz or LeAnn 
Southward Hogan at 301-713-2347 or fax 301-713-1917 or Jackie Wilson at 
240-338-3936 or fax 404-806-9188.

SUPPLEMENTARY INFORMATION: 

Background

    The Atlantic shark fisheries have been managed by the Secretary 
pursuant to the HMS FMP for Atlantic sharks prepared under the 
authority of the Magnuson-Stevens Act Sections 302(a)(3) and 304(g) in 
1993 (1993 FMP). NMFS revised the 1993 FMP to include swordfish and 
tunas in the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks (1999 
FMP). After amending the 1999 FMP in 2003, NMFS consolidated the 
Atlantic tunas, swordfish, and shark FMP and its amendments with the 
Atlantic billfish FMP and its amendments creating the 2006 Consolidated 
Atlantic HMS FMP. Amendments 1 and 2 amended the 2006 Consolidated HMS 
FMP in 2009 and 2008, respectively. Amendment 3 further amends the 2006 
Consolidated HMS FMP. The 2006 Consolidated HMS FMP and its amendments 
are implemented by regulations codified at 50 CFR part 635.
    On May 7, 2008, NMFS announced its determination that blacknose 
sharks are overfished with overfishing occurring while Atlantic 
sharpnose sharks, bonnethead sharks, and finetooth sharks are not 
overfished and are not experiencing overfishing (73 FR 25665). These 
determinations were based on the results of the 2007 SCS stock 
assessment, which was conducted in a manner similar to the Southeast 
Data Assessment and Review (SEDAR) process that is used by the South 
Atlantic, Gulf of Mexico, and Caribbean Fishery Management Councils. 
NMFS has found that this 2007 SCS stock assessment is the best 
available science regarding the status of SCS. The status determination 
criteria that are used to determine the status of Atlantic HMS are 
fully described in Chapter 3 of the 1999 FMP, and fully incorporated in 
the 2006 Consolidated HMS FMP, are summarized in other documents such 
as Amendment 3, and are not repeated here.
    NMFS has also determined that blue sharks are not overfished and 
overfishing is not occurring. With respect to shortfin mako sharks, 
however, NMFS has determined that the species while not overfished, is 
approaching an overfished condition, and is subject to overfishing. 
These determinations are based on international stock assessments 
conducted by the International Commission for the Conservation of 
Atlantic Tuna's (ICCAT's) Standing Committee for Research and Science 
(SCRS). While these assessments are international, the status 
determination criteria are the same as those used for SCS and all 
Atlantic shark species that are managed under the 2006 Consolidated HMS 
FMP and its amendments. NMFS has determined the ICCAT stock assessment 
to be the best available science for managing shortfin mako and blue 
sharks.
    Under the Magnuson-Stevens Act, NMFS, when managing HMS on behalf 
of the Secretary, is required to take action to end overfishing, to 
rebuild an overfished fishery, and, if a fishery is approaching an 
overfished condition, take action to prevent overfishing from 
occurring. Since NMFS determined that the blacknose shark fishery was 
overfished, it was responsible for developing conservation and 
management measures to end overfishing and rebuild the fishery. 
Similarly, upon learning that the shortfin mako fishery was approaching 
an overfished condition, NMFS had a duty, taking into account the 
international nature of the fishery, to take appropriate action at the 
domestic or international level, to prevent overfishing of the shortfin 
mako sharks. NMFS announced its intent to develop

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amendments to the 2006 Consolidated HMS FMP and prepare a corresponding 
environmental impact statement (EIS) on May 7, 2008 (73 FR 25665), and 
held five scoping meetings in 2008 (73 FR 37932, July 2, 2008; 73 FR 
53407, September 13, 2008). During scoping, NMFS also consulted with 
the HMS Advisory Panel in October 2008 (73 FR 53407, September 13, 
2008), the five Regional Fishery Management Councils on the east coast, 
and the Atlantic States and Gulf States Marine Fisheries Commissions. 
NMFS also presented information at a bycatch reduction workshop that 
was held by the Gulf and South Atlantic Fisheries Foundation. In 
February 2009, NMFS presented the Predraft of Amendment 3 to the HMS 
Advisory Panel (73 FR 67135, November 13, 2008).
    In addition to potential measures to address overfished stocks and 
to end overfishing, during the scoping process, NMFS identified the 
need to add smooth dogfish into the management unit to provide for 
conservation and management of the species. Smooth dogfish was 
previously included as an HMS in a fishery management unit (FMU) that 
included deepwater and other sharks in order to prevent finning. These 
species were removed from the FMU in the 2003 Amendment 1 to the 1999 
FMP for Atlantic Tunas, Swordfish, and Sharks since they were protected 
from finning under the Shark Finning Prohibition Act (67 FR 6124, 
February 11, 2002). As described below, based on comments and other 
reasons, NMFS has determined that conservation and management of smooth 
dogfish under the Magnuson-Stevens Act are warranted for several 
reasons including the need to collect data regarding the fishery, 
fishing effort, and life history of the species.
    Based in part on the comments received during scoping and from the 
HMS Advisory Panel on the Predraft, NMFS evaluated a full range of 
alternative management measures for blacknose sharks, SCS, shortfin 
mako sharks, and smooth dogfish within Amendment 3 (74 FR 36706 and 74 
FR 36892). The details of what NMFS proposed and the alternatives 
considered are described in the proposed rule and DEIS, which included 
Draft Amendment 3. Those documents are incorporated by reference and 
their description of management and conservation measures considered at 
the DEIS and proposed rule stage are not repeated here. In the proposed 
rule, NMFS announced nine public hearings from New Hampshire to 
Louisiana, and set a deadline for the public comment period, which was 
to end on September 22, 2009. On August 10, 2009, the comment period 
was extended to September 25, 2009 (74 FR 39914), to accommodate two 
public hearings scheduled on September 22, 2009, and the New England 
Fishery Management Council meeting that was scheduled from September 22 
through 24, 2009. The draft Amendment 3 was presented to the South 
Atlantic (74 FR 44352), Mid-Atlantic (74 FR 34556), Gulf of Mexico (74 
FR 36669), Caribbean (74 FR 40168), and New England (74 FR 45821) 
Fishery Management Councils. The draft Amendment 3 was also presented 
to ASMFC in August 2009. NMFS received a number of oral and written 
comments on the proposed rule. The significant comments and NMFS' 
responses are summarized below under the section labeled ``Response to 
Comments.''
    NMFS prepared an FEIS that discussed the direct, indirect and 
cumulative impacts on the quality of the human environment as a result 
of the preferred management measures identified for Amendment 3. The 
FEIS, including the final actions identified for Amendment 3, was made 
available in March 2010 (75 FR 13275, March 19, 2010). On May 18, 2010, 
the Assistant Administrator for NOAA signed a Record of Decision 
adopting Final Amendment 3 to the 2006 Consolidated HMS FMP. Final 
Amendment 3 was comprised of the preferred alternatives identified by 
NMFS in the FEIS. A copy of the FEIS, including final Amendment 3, is 
available from NMFS (see ADDRESSES). As described in the FEIS and the 
responses to comments below, and based in part on the public comments, 
NMFS made a number of changes to the preferred alternatives between the 
DEIS and FEIS. Corresponding changes were made, where appropriate, to 
Draft Amendment 3 and the Proposed Rule resulting in Final Amendment 3 
and this final rule. The specific changes are described below in the 
section titled ``Changes from the Proposed Rule.'' In brief, the final 
management measures implemented in this rule are: implement a non-
blacknose SCS annual quota of 221.6 mt dw; implement a blacknose shark 
annual quota of 19.9 mt dw; take action at the international level to 
end overfishing of shortfin mako sharks; promote in the domestic 
fishery the release of shortfin mako sharks brought to commercial and 
recreational fishing vessels alive; add smooth dogfish to the HMS 
management unit; establish a smooth dogfish annual quota of 715.5 mt 
dw; require that smooth dogfish fins remain attached to the carcass 
through offloading; require commercial and recreational fishermen to 
obtain a permit authorizing landings of smooth dogfish caught in or 
transported through Federal waters; and make several administrative 
changes clarifying, correcting, and updating the regulations, as 
described in the proposed rule. Amendment 3 also finalized a mechanism 
for determining annual catch limits (ACLs) and establishing 
accountability measures (AMs) for the Atlantic shark fisheries managed 
in the 2006 Consolidated HMS FMP and its amendments.
    In this rule, NMFS is placing both smooth dogfish and the Florida 
smoothhound into the `smoothhound complex.' NMFS intends this name 
change to minimize any confusion with spiny dogfish regulations. Both 
smooth dogfish and the Florida smoothhound, which, as described in 
Amendment 3, are likely the same species, are found in the smoothhound 
family (Triakidae) and are the only members of the smoothhound family 
that are found on the Atlantic coast (there are other smoothhound 
sharks found in the Pacific Ocean). Spiny dogfish, which have been 
managed by the Mid-Atlantic Fishery Management Council (MAFMC) and New 
England Fishery Management Council (NEFMC) since the early 1990s, is 
often referred to as `dogfish' and is found in the dogfish family 
(Squalidae). Thus, referring to `smoothhound' in the regulations and 
requiring a smoothhound permit, rather than a smooth dogfish permit, 
should help in the long term to eliminate any confusion that might be 
caused by having two `dogfish' species and permits. NMFS expects some 
confusion in the short term as fishermen adjust to the use of a new 
term in the regulations. However, because common names of fish are 
often different in different regions (e.g., striped bass and rockfish), 
NMFS does not expect this confusion to last long.
    The effectiveness of all the smoothhound management measures in 
Final Amendment 3 and associated implementing regulations included in 
the final rule will be delayed until the start of the 2012 fishing 
season for smooth dogfish (approximately April 1, 2012), pending 
approval for the data collection requirement under the PRA by OMB. NMFS 
is delaying implementation of those measures to provide time for 
affected fishermen to change business practices, particularly as it 
relates to keeping the fins attached to the carcass through offloading, 
and to provide time for implementing a permit requirement. NMFS is also 
delaying implementation to provide additional time to complete a smooth 
dogfish

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biological opinion under Section 7 of the Endangered Species Act (ESA). 
NMFS will announce in a separate notice how to obtain a permit and any 
other relevant details regarding implementation of these or other 
smoothhound measures.
    During the comment period for the proposed rule, NMFS received many 
questions regarding the impetus for managing smooth dogfish. Over the 
course of this rulemaking process, a number of stakeholders have 
indicated, either in conjunction with or independent of this 
rulemaking, that management of smooth dogfish is necessary. These 
include environmental organizations that have specifically requested 
management action, the Atlantic States Marine Fisheries Commission 
(ASMFC) that included smooth dogfish in its management unit when 
finalizing its Interstate FMP for Coastal Sharks, and the Mid-Atlantic 
Fishery Management Council (MAFMC) that specifically requested 
management authority to manage the smooth dogfish fishery. Also, based 
on existing data, it is apparent that the smooth dogfish fishery is 
substantial, and requires sound science-based conservation and 
management to provide for the long-term sustainable yield of the stock. 
The smooth dogfish fishery has significant annual landings when 
compared with other shark fisheries and has a large directed component. 
Previous experiences with shark fisheries and shark biology have 
indicated that sharks in general are vulnerable to stock collapse in 
the face of unrestricted fishing. Thus, adding the species to the FMU 
now to begin collecting data is appropriate. Additionally, the vast 
majority of the smooth dogfish catch occurs with gillnets. Some gillnet 
fisheries in the Atlantic are defined as Category I fisheries under the 
Marine Mammal Protection Act (MMPA), meaning the annual mortality and 
serious injury of one or more marine mammal stocks in a given fishery 
is greater than or equal to 50 percent of the Potential Biological 
Removal (PBR) level. While all fisheries need to comply with the 
requirements of the MMPA regardless of their management status, it is 
more efficient and predictable to ensure the affected fishermen are 
engaged in the process if their fishery is consistently managed in 
accordance with uniform conservation and management measures developed 
and implemented through an FMP in accordance with the procedures in the 
Magnuson-Stevens Act. Lastly, the smooth dogfish market could overlap 
with that of spiny dogfish, which is a species that is Federally-
managed with a significant directed fishery. Spiny dogfish required 
restrictive management measures in the late 1990s and early 2000s to 
deal with domestic overfishing. While domestically spiny dogfish stocks 
appear to be healthy, other stocks are overfished internationally. 
Because of the possible overlap in markets, NMFS is concerned that 
smooth dogfish products can be used as a substitute for spiny dogfish 
products. If there is market overlap, then declines in spiny dogfish 
stocks (as have been seen internationally) and restrictive management 
measures (including domestic management) could push, or might have 
already pushed, effort into the smooth dogfish fishery. Until initial 
management measures are in place to collect data concerning location, 
effort, and the status of the stock, NMFS will not be able to determine 
whether further or different conservation and management measures 
through future FMP amendments and/or regulatory changes are necessary 
due to the influence of the foregoing and other relevant factors. For 
the foregoing reasons, NMFS has determined that the smoothhound fishery 
is in need of conservation and management, and that the species is 
suitable for management as a highly migratory species by the Secretary 
in accordance with his authority over Atlantic HMS set forth in 
Sections 302(a)(3) and 304(g) of the Magnuson-Stevens Act.

Response to Comments

    A number of individuals and groups provided comments on the 
proposed rule during the comment period in writing or at public 
hearings. All written comments can be found at https://www.regulations.gov. The comments received resulted in numerous 
changes, as described below in the Changes from the Proposed Rule 
section. Significant comments are summarized below by major topic 
together with NMFS' responses. There are eight major issues: SCS 
commercial quotas, commercial gear restrictions, commercial pelagic 
shark effort controls, recreational measures for SCS, recreational 
measures for pelagic sharks, smooth dogfish, general comments, and 
economic comments. The first major issue, SCS commercial quotas, has 
the following sub-issues: science/stock assessment, shrimp trawls and 
working with the Regional Fishery Management Councils, and quota 
alternatives. The comments are numbered consecutively, starting with 1, 
at the beginning of each major issue.

A. SCS Commercial Quotas

1. Science/Stock Assessment

    Comment 1: NMFS received comments regarding the average weights 
used for blacknose sharks. Commenters noted that the blacknose shark 
stock must be healthy, since blacknose sharks of various sizes are 
being landed across all fisheries. In addition, the Gulf of Mexico 
Fishery Management Council (GMFMC) commented that the average size of 
blacknose shark landed in the recreational fishery weighed only 1.5 lb 
dressed weight (dw), which corresponds to a fish less than two feet 
long, and therefore it appears that this data is incorrect. The 
recreational catches included only landed sharks. However, released 
blacknose sharks make up a substantial proportion of the total 
recreational catches, in some years exceeding landings. In other stock 
assessments, a release mortality percentage is applied to the releases 
reported in Marine Recreational Fishing Statistics Survey (MRFSS) to 
account for recreational dead discards. Leaving recreational dead 
discards out may result in erroneous assessment results.
    Response: NMFS recognizes that blacknose sharks of various sizes 
are caught in the SCS fishery, and that the average weight for 
recreationally-caught blacknose sharks, which is the best available 
data from MRFSS, may be underestimated. However, only recreational 
landings and discard data were used in the stock assessments; average 
weights in the recreational fishery were not used in the 2007 SCS and 
blacknose shark assessments. In order to estimate recreational landings 
and dead discards for the stock assessment, NMFS used data from three 
recreational surveys (MRFSS, the NMFS Headboat Survey, and the Texas 
Parks and Wildlife Department Recreational Fishing Survey). NMFS also 
used MRFSS to estimate blacknose shark average weights, and NMFS 
realizes that an average weight for recreationally-caught blacknose 
sharks of less than 2 lb dw reflects a small juvenile shark, but this 
average weight of blacknose sharks is the best available data from 
MRFSS. Recent data from the Southeast Fisheries Science Center (SEFSC) 
has shown that the average size of blacknose sharks caught in gillnets 
is 18.7 lb dw, as opposed to the 14.4 lb dw that was used in the Draft 
Environmental Impact Statement (DEIS) analysis. Based on this updated 
average weight, NMFS has modified the average weight of blacknose 
sharks across all commercial gear types to 6.4 lbs, as opposed to 5.4 
lbs used in the DEIS. Consistent with 40 CFR 1503.4(2) and (3), NMFS 
responded

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to this comment in the DEIS, improved its analysis of blacknose 
mortality rates, and developed, identified, and evaluated a new A6, 
which would set the SCS quota at 221.6 mt dw and the blacknose quota at 
19.9 mt dw. The preferred alternative in the DEIS was A4.
    Comment 2: Several commenters had questions on where the research 
for the stock assessments occur, who does the assessments and research, 
what data goes into the assessments, and whether the assessments 
considered the Atlantic Large Whale Take Reduction Plan regulations.
    Response: The 2007 Southeast Data, Assessment, and Review (SEDAR) 
SCS stock assessment was organized around three workshops. All 
workshops are open to the public to ensure the assessment process is 
transparent. The first is a Data Workshop, during which fisheries 
monitoring, life history data, catch data and indices of abundance from 
both fishery independent and fishery dependent sources are reviewed and 
compiled. The report of the Data Workshop provides all sources of data 
and research that was conducted and included in the stock assessment. 
The data reviewed at this workshop includes fishery dependent data 
(e.g., fishermen, dealer and observer reports), fishery independent 
data (e.g., scientific surveys), and scientific data regarding the 
biology of the species. Participants of the Data Workshop reviewed over 
20 individual catch indices along with other data regarding catches and 
biological information. Current and historical regulations such as the 
Atlantic Large Whale Take Reduction Plan regulations and the Atlantic 
HMS regulations are summarized for consideration by the participants in 
the stock assessment. The scientists realize that management can affect 
fisheries monitoring, and data collection and work to account for these 
impacts when finalizing the data to be used in the assessment models. 
The explanation of the process for conducting the stock assessment is 
provided in Chapter 3 of the FEIS.
    Comment 3: Fishermen are not fishing for sharks, including 
blacknose sharks, anymore since it is not profitable. NMFS could be 
misinterpreting this decline in effort as population declines. Shark 
catches are just incidental catches and occur only in the Tortugas.
    Response: NMFS recognizes that effort has decreased in the shark 
fisheries in terms of the number of boats and in the number of sets, 
but notes that there are several fishermen in the Atlantic, GOM and 
Caribbean who still fish for sharks in both directed and incidental 
manners. In order to account for this decreased effort, NMFS uses a 
weighted average of effort and landings when conducting data analysis. 
This provides a better understanding of the catch-per-unit effort of 
the active vessels in the fishery. Furthermore, the SEDAR stock 
assessment process uses fishery-independent data in the analysis. This 
type of data is generally immune to, and helps correct for, changes in 
fishing effort.
    Comment 4: NMFS received several comments stating that the SEDAR 13 
2007 SCS stock assessment is not the ``best available science.'' 
Commenters noted concerns over certain data issues, the use of trawl 
data before and after TEDs were required, modeling assumptions, and 
management choices described in the stock assessment. One commenter 
stated that while he has advocated closing the shark gillnet fishery, 
he is concerned that NMFS is using suspect data to justify what would 
otherwise be a good outcome. Other commenters noted that shark stock 
assessments for various species tend to move the species assessed from 
overfished to healthy and then from healthy to overfished frequently. 
Many commenters felt that NMFS should wait for the new stock assessment 
and should not implement new quotas or other regulatory changes for 
blacknose sharks based on the 2007 assessment.
    Response: NMFS used the best available science and a rigorous SEDAR 
stock assessment process to make the determination that blacknose 
sharks are overfished with overfishing occurring. The independent 
review panel determined that the data used in the SCS stock assessment 
were considered the best available at the time. They also determined 
that appropriate standard assessment methods based on general 
production models and on age-structured modeling were used to derive 
management benchmarks given the data available. Therefore, NMFS 
believes that the 2007 SCS stock assessment represents the best 
available science and is not considering delaying implementation of 
management measures until the next stock assessment is completed. Under 
Section 304(e) of the Magnuson-Stevens Act, as implemented by the NS1 
Guidelines, if a stock is overfished, NMFS is required to ``take 
remedial action by preparing an FMP, FMP amendment, or proposed 
regulation * * * to rebuild the stock or stock complex to the MSY level 
within an appropriate time frame'' (50 CFR 600.310(e)(3)(ii)).
    Additionally, ``in cases where a stock or stock complex is 
overfished, [the] action must specify a time period for rebuilding the 
stock or stock complex that satisfies the requirements of section 
304(e)(4)(A) of the Magnuson-Stevens Act.'' Therefore, consistent with 
the results of the 2007 SCS stock assessment results, the 2006 
Consolidated HMS FMP, the Magnuson-Stevens Act, and the NS1 Guidelines, 
NMFS is implementing final management measures to end overfishing and 
rebuild blacknose sharks, while providing an opportunity for the 
sustainable harvest of the other sharks in the SCS complex. The 
discussion of the SEDAR stock assessment process is included in Chapter 
3 of the FEIS. NMFS believes that the assessment remains the best 
scientific data available at this time and the agency is required by 
National Standard 2 to utilize this information.
    Comment 5: The stock assessment should not have combined the two 
blacknose shark stocks found in the Gulf of Mexico region and the 
Atlantic coast region. The problem arises with the differences caused 
by a lack of migration movement between regions and the annual breeding 
cycle of the Gulf of Mexico stock coupled with the biennial breeding 
cycle of the Atlantic stock of mature female blacknose sharks. NMFS 
scientists should model them as two separate stocks and not one. 
Additionally, because of differences in life history parameters, 
blacknose sharks in the western North Atlantic should be managed 
separately from those in the Gulf of Mexico.
    Response: In the 2007 SCS stock assessment, the assessment 
scientists considered the issue and determined that blacknose sharks 
should be assessed as one stock. The scientists noted that there was 
conflicting genetic data regarding the existence of two separate 
stocks, and the potential differences in the reproductive cycle for 
South Atlantic and Gulf of Mexico populations. As a result, the 
assessment used an average reproductive cycle of 1.5 years (the average 
between reproductive cycles of one year in the Gulf of Mexico and two 
years in the South Atlantic region). Also, reproductive scenarios were 
conducted during the stock assessment to determine the effect of 
different reproductive cycles on the stock status. Under both 
reproductive scenarios, the overall stock status of blacknose sharks 
did not change. Thus, the reviewers and assessment scientists agreed 
that the base case scenario of a 1.5-year reproductive cycle was 
appropriate for the assessment. Because it was determined that 
blacknose sharks are one stock, NMFS plans on implementing regulations 
to rebuild the blacknose shark stock for the South

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Atlantic and Gulf of Mexico together. The discussion of the SEDAR stock 
assessment process is included in Chapter 3 of the FEIS and adequately 
addressed this issue. NMFS believes that the assessment remains the 
best scientific data available at this time and the agency is required 
by National Standard 2 to utilize this information. NMFS has determined 
that the existing analysis is adequate. As such, changes were not made 
in the FEIS or the final rule in response to this comment.
    Comment 6: Commenters had questions on why the SCS stock assessment 
only included data up to 2005 and on the catch rate data from the trawl 
survey over the last 30 years.
    Response: The data used in the 2007 SCS stock assessment includes 
data up to 2005, which was the most current year of data available at 
the time the SEDAR Data Workshop was held in February of 2007. Full 
descriptions of the data used in the 2007 blacknose stock assessment to 
estimate blacknose bycatch in the GOM are in SEDAR13-DW-31 and SEDAR13-
DW-32. Both papers are available on the SEDAR Web site at https://www.sefsc.noaa.gov/sedar/Sedar_Documents.jsp?WorkshopNum=13&FolderType=Data. As outlined in the Final 
SEDAR 13 SCS Report, the blacknose shark bycatch in the South Atlantic 
was calculated as a proportion of the Gulf of Mexico bycatch. As for 
the data from the Southeast Area Monitoring and Assessment Program 
(SEAMAP), six ``time series'' were used to estimate blacknose shark 
bycatch in the shrimp trawl fisheries. These were the fall time series 
Fall Groundfish (FG) 1972-1986, First Fall (FF) 1987, Fall SEAMAP (FS) 
1988-2006; and the summer time series Summer SEAMAP (SS) 1987-2006, 
Early SEAMAP (ES) 1982-1986, and Texas Closure (TC) 1981. The SEAMAP 
surveys did not utilize TEDs. However, shrimp trawl observer data from 
1972-2005 also were used to estimate blacknose bycatch in the shrimp 
trawl fisheries and shrimp trawl effort data for the Gulf of Mexico and 
the South Atlantic from 1972-2005 were also used in the SEDAR 13 
assessment. The discussion of the SEDAR stock assessment process is 
included in Chapter 3 of the FEIS. It discloses the data sources that 
existed at the time of the stock assessment. NMFS believes that the 
assessment and the data upon which it relied remains the best 
scientific data available at this time. The agency is required by 
National Standard 2 to utilize this information. NMFS has determined 
that the existing data and analysis are adequate. Therefore, no changes 
were made in the FEIS or final rule in response to this comment.
    Comment 7: Will the next blacknose shark assessment be a benchmark 
or update? The protocol of the shrimp observer program seems to be 
reporting just shark groups, not species specific reporting. NMFS 
should follow up on this through the observer program.
    Response: Since the 2007 stock assessment, NMFS and industry 
scientists have been developing different models for analyzing the 
shrimp trawl data. Because the new models, which currently have not 
been peer reviewed, would be a change in methodology from the 2007 
stock assessment, the next blacknose shark assessment will be a 
benchmark assessment. The Data Workshop for this assessment, which will 
also assess sandbar and dusky sharks, will take place in summer 2010. 
NMFS is currently working with the shrimp observer program to increase 
species specific shark data reporting.
    Comment 8: NMFS received comments regarding the survival of 
blacknose sharks that stated that blacknose sharks are alive at the 
boat and will survive if released. NMFS also received comments that 
disputed the reduction of blacknose catches.
    Response: A review of the data from the 2005-2008 Shark Gillnet 
Observer Database, which reported the number of sharks caught in the 
gillnet fishery during observed trips, detailed the disposition of the 
sharks caught in gillnets. From this data, the number of sharks that 
were landed and kept, landed alive and released, and landed dead and 
discarded was determined. Based on this data, NMFS has changed the 
mortality rate for discards to 80 percent instead of 100 percent that 
was used in the DEIS. Although catch rates may remain unchanged, a 
stock may show signs of stress through changes in average size towards 
smaller individuals, or to increasingly larger numbers of younger 
individuals in the stock. While there has not been a reduction in 
blacknose shark commercial landings, based on the most current stock 
assessment, the blacknose shark stock has been determined to be 
overfished, with overfishing occurring. For this reason, NMFS has 
decided to implement management measures to rebuild this overfished 
stock and to end overfishing. Based on this comment, NMFS modified the 
FEIS by adjusting the mortality rates based on observer coverage and 
made conforming changes in the Final Amendment 3 and this final rule.

2. Shrimp Trawls and Working With the Regional Fishery Management 
Councils

    Comment 9: NMFS received many comments regarding the blacknose 
shark mortality related to the Gulf of Mexico shrimp trawl fisheries. 
The State of Louisiana agrees that the majority of the reported 
blacknose shark mortality comes as bycatch from the Gulf of Mexico 
shrimp trawl fishery, but notes that the effort in this fishery has 
been reduced from 2005 due to hurricanes Katrina and Rita and fuel 
prices. The GMFMC and others also commented that the Gulf of Mexico 
shrimp trawl bycatch portion of blacknose shark mortality (45 percent) 
seems high. Specifically, these commenters note that shrimp fishing 
effort in 2005 in areas where red snapper are abundant was reduced by 
50 to 60 percent from 2001-2003 periods and was reduced by 
approximately 65 percent in 2006. It was further reduced in 2007 and 
2008 by approximately 75 percent. The number of vessels participating 
in the offshore shrimp fishery is expected to continue declining until 
at least 2012, and has been further reduced by the impacts of 
hurricanes Katrina and Rita. With time/area closures, the shrimp trawl 
effort is unlikely to rebuild to its prior historical levels. As a 
result, basing blacknose shark mortality rates by gear type using the 
years 1999-2005 may produce anomalous results that are not 
representative of long term trends. Those estimates should be 
recalculated using more recent years or a longer time series of years. 
All of these comments stated that NMFS should update their mortality 
figures utilizing current offshore Gulf of Mexico shrimp trawl effort 
data.
    Response: NMFS would like to thank the State of Louisiana and the 
GMFMC for their comments. NMFS is working with the GMFMC, and agrees 
that blacknose shark mortalities have dropped significantly due to 
decreased effort in the shrimp trawl fishery in the Gulf of Mexico. 
NMFS also recognizes that the impacts from hurricanes, and other 
events, in recent years may have affected effort or landings data. 
Effort in the Gulf of Mexico shrimp fishery has decreased 64 percent 
from the average effort across the entire Gulf of Mexico in 1999-2005 
compared to effort in 2008 (James Nance, NMFS SEFSC pers. comm.). 
Although an analysis of the spatial/temporal distribution of this 
reduction relative to the distribution of blacknose shark bycatch has 
not been conducted, a starting assumption could be that this equates to 
a commensurate 64 percent reduction in bycatch.

[[Page 30489]]

    Modeling efforts are ongoing that incorporate a TED effect in the 
bycatch estimation model. Preliminary analyses utilizing the new 
modeling technique indicate that bycatch may have been reduced by 
approximately 50 percent in 1999-2005. When bycatch reductions from the 
effort reduction of 64 percent are combined with an approximately 50-
percent bycatch reduction anticipated from the TED effect, a 
preliminary estimate of the overall reduction is approximately 82 
percent from 1999-2005 levels. Full results will be provided once the 
study is complete. The uncertainty is not fully defined in these 
preliminary bycatch estimates, and there may be spatio-temporal 
differences in bycatch trends. More data and further analyses are 
required to determine any uncertainty in the estimates and to re-
evaluate the status of the blacknose shark stock. The next assessment 
is scheduled for 2010, and NMFS will re-visit shrimp bycatch and shrimp 
trawl effort at that time. Since the modeling data, analyses and 
conclusions are preliminary and have not been peer reviewed, they were 
not available for use in the FEIS or in this final rule. NMFS believes 
that the 2007 SCS assessment and the data upon which it relied with 
respect to bycatch in the shrimp trawl fisheries remains the best 
scientific data available at this time. The agency is required by 
National Standard 2 to utilize this information. NMFS has determined 
that the existing data and analysis are adequate. Therefore, no changes 
were made in the FEIS or this final rule in response to this comment.
    Comment 10: NMFS received comments regarding the Georgia Bulldog 
trawl video and the ability of blacknose sharks to go through TEDs. 
Several commenters expressed skepticism that blacknose sharks could fit 
through the four inch bar spacing of a TED. Other commenters asked 
about the species of shark in the video and whether they went through 
the TED.
    Response: The SEFSC's video footage of TEDs in shrimp trawls shows 
sharks and protected resources (e.g., sea turtles) being excluded from 
shrimp trawls using TEDs with less than 4-inch bar spacing. The video 
footage was taken from a shrimp trawler, the R/V Georgia Bulldog, off 
the coast of Georgia, within 10 miles of shore, in water depths less 
than 40 feet. The footage shows that some small sharks (blacknose, 
bonnethead, and Atlantic sharpnose), as well as various other finfish, 
can pass through the TEDs and into the codend of the trawl; NMFS has 
not conducted any analysis on the bycatch at this time (e.g., bycatch 
was not identified to species, length measurements were not taken). The 
video is not appropriate for detailed analysis of the TED impact on 
catch and bycatch, but rather serves as a starting point because it 
shows that sharks do make it through this bycatch reduction device 
technology. The discussion and analysis of SCS bycatch in the shrimp 
trawl fisheries used in the 2007 SCS stock assessment remains the best 
scientific data available at this time. The agency is required by 
National Standard 2 to utilize this information. NMFS has determined 
that the existing data and analysis are adequate. Therefore, no changes 
were made in the FEIS or this final rule in response to this comment.
    Comment 11: NMFS received numerous comments regarding the bycatch 
of blacknose sharks in shrimp trawl fisheries. Commenters suggested 
that NMFS should study potential ways to reduce bycatch of blacknose 
sharks and other species in trawl fisheries, including gear 
modifications, gear restrictions, or time-area closures and implement 
measures to reduce this bycatch. In addition, NMFS received comments 
that NMFS should work together with Regional Fishery Management 
Councils to reduce the bycatch of blacknose sharks in the shrimp trawl 
fisheries and to ensure ACLs and AMs are set for fisheries that catch 
blacknose sharks in order to limit the significant mortality in the 
shrimp fisheries.
    Response: NMFS is working with the Gulf of Mexico and South 
Atlantic Fishery Management Councils to establish bycatch reduction 
methods, as appropriate, to reduce blacknose shark mortality in the 
shrimp trawl fisheries. In addition, NMFS SEFSC has been working with 
industry scientists to re-evaluate the shrimp bycatch models used in 
the 2007 SCS stock assessments. In particular, they have been 
evaluating the effect of TEDs on SCS bycatch in shrimp trawls. NMFS 
continues to monitor and evaluate bycatch in HMS fisheries through the 
pelagic longline (PLL), bottom longline (BLL), and gillnet observer 
programs, and evaluation of management measures such as closed area 
trip limits, and gear modifications. Because the Gulf of Mexico and 
South Atlantic Fishery Management Councils manage the shrimp trawl 
fisheries, NMFS is only implementing measures in this amendment to 
reduce the landings and discards in Atlantic shark fisheries. 
Regulatory changes to the shrimp trawl fisheries in the South Atlantic 
and Gulf of Mexico regions would be done through the Council process in 
those regions. This amendment includes a mechanism to specify ACLs for 
stock complexes, including the SCS complex, and certain specific shark 
species as well as identify AMs, consistent with the Magnuson-Stevens 
Act requirements to establish a mechanism for specifying ACLs and AMs 
at a level that will prevent overfishing. The regulations necessary to 
adjust ACLs as needed and to apply AMs are currently in place. The DEIS 
explained NMFS' approach to reducing bycatch by working with the 
Regional Fisheries Management Councils responsible for those fisheries. 
In addition, NMFS has committed to ongoing monitoring and future 
evaluation of this issue. That discussion is included in Chapter 1 of 
the FEIS.
    Comment 12: Some commenters noted that the shrimp industry has 
mandated TEDs and other bycatch reduction devices, and ask if there are 
other shrimp trawl bycatch reduction measures that can be implemented.
    Response: NMFS agrees that the mandating of TEDs and other bycatch 
reduction devices have aided in the reduction of blacknose shark 
catches and other protected resources. Currently, NMFS is working with 
the GMFMC, South Atlantic Fishermen Management Council (SAFMC), and the 
shrimp industry to look at other ways to decrease the shark bycatch in 
the shrimp fishery. For the reasons stated in response to comment 11, 
NMFS did make changes in the FEIS based on this comment.

3. Quota Alternatives

    Comment 13: NMFS should implement alternative A1, which calls for 
no action to the SCS commercial quota. This alternative is appropriate 
given the concerns on the science for blacknose and the range of 
alternatives. The Atlantic Large Whale Take Reduction Plan (ALWTRP) 
regulations eliminate gillnet fishing for 5 months a year (November to 
April), which should be positive for blacknose sharks. When the fishery 
opens in April and May, the blacknose sharks are within State waters, 
therefore, NMFS should not change anything and stay with the 5 month 
ALWTRP closure.
    Response: The results of the 2007 SCS stock assessment determined 
that, despite the ALWTRP, blacknose sharks are overfished and 
overfishing is occurring. The assessment recommended a blacknose shark 
specific TAC and a corresponding rebuilding timeframe. One objective of 
this rulemaking is to ensure that fishing mortality levels for 
blacknose sharks are maintained at or below levels that would result in 
a 70 percent probability of rebuilding in the timeframe

[[Page 30490]]

recommended by the assessment. Under the Magnuson-Stevens Act, as 
implemented by the NS1 Guidelines, if a stock is overfished, NMFS, in 
addition to taking action to propose and implement measures to end 
overfishing, is required to ``take remedial action by preparing an FMP, 
FMP amendment, or proposed regulation * * * to rebuild the stock or 
stock complex to the MSY level within an appropriate time frame'' (50 
CFR 600.310(e)(3)(ii)). NMFS chose not to select the status quo 
alternative as the preferred alternative because it does not end 
overfishing or implement a rebuilding plan for overfished stocks as 
required by the Magnuson-Stevens Act and NS1 Guidelines. Based on 
further analysis of new data and public comment, NMFS selected an SCS 
quota alternative in the FEIS that was different from the preferred SCS 
quota alternative in the DEIS. Specifically, NMFS selected alternative 
A6 in the FEIS which has a non-blacknose SCS quota of 221.6 mt dw and a 
blacknose shark quota of 19.9 mt dw because it implements quotas 
necessary to rebuild and end overfishing of blacknose sharks. The final 
action also allows the gillnet fishery to continue, thus mitigating 
some of the economic impacts that are expected and necessary in order 
to reduce fishing mortality as prescribed by the recent stock 
assessment. Thus, the final SCS quota and commercial gear alternatives 
strike a balance between positive ecological impacts that must be 
achieved to rebuild and end overfishing of blacknose sharks shark 
stocks while minimizing the negative economic impacts that would occur 
as a result of these measures.
    Comment 14: NMFS received a number of comments indicating that 
gillnet fishermen can adapt their fishing techniques and gear to avoid 
catching blacknose sharks. Specific comments included: Did NMFS 
consider that fishermen can adapt and select on certain species?; 
gillnet fishermen can adapt to avoid catching blacknose sharks similar 
to how they reduced turtle and marine mammal bycatch; strikenet gear is 
a clean gear and can be modified to avoid blacknose sharks; it is 
possible to design gillnet gear to eliminate blacknose shark catches; 
and NMFS should set aside Amendment 3 or go with status quo until more 
gear research can be conducted.
    Response: Due to this comment, NMFS reviewed the 2005-2008 Shark 
Gillnet Observer Data. Based on this analysis, NMFS agrees that 
fishermen may be able to adapt and specifically target some species 
while avoiding others. The percentage of blacknose sharks in the catch 
from gillnet trips that were targeting other species were: 2.6 Percent 
from 5 trips that targeted blacktip sharks, 1.4 percent from 17 trips 
that targeted Atlantic sharpnose sharks, 8.3 percent from 6 trips that 
targeted bonnethead sharks, and 3.9 percent from 118 unspecified shark 
trips. NMFS used this information to re-analyze the SCS quota and 
commercial gear alternatives. Based on this analysis and public 
comment, NMFS selected alternative A6, which is a new alternative and 
would have a non-blacknose SCS quota of 221.6 mt dw and a blacknose 
shark quota of 19.9 mt dw. In addition, NMFS chose not to prohibit 
gillnet gear as an authorized gear type and selected the commercial 
gear alternative to B1, the No Action alternative. If in subsequent 
analysis the data shows that shark fishermen have been able to avoid 
catching blacknose sharks, NMFS will re-evaluate the landings data, and 
increase the quota for non-blacknose SCS, blacknose sharks, or both. 
However, if a re-evaluation of the data shows that fishermen have not 
been able to minimize blacknose shark mortalities, then NMFS reserves 
the right to decrease either, or both, quotas. In response to this 
comment, NMFS modified the FEIS to include the identification and 
selection of preferred alternatives that would establish blacknose and 
non-blacknose SCS quotas and continue to allow the use of gillnets as 
authorized gear for harvesting all Atlantic sharks. The changes to the 
final rule are discussed in more detail below.
    Comment 15: NMFS received numerous comments on the proposed non-
blacknose SCS quota. Several commenters were concerned that the non-
blacknose SCS quota was too low particularly since these species stocks 
are healthy and are a viable alternative for fishermen. The low quota 
could result in high regulatory discards. The State of North Carolina 
noted that if NMFS reduced the non-blacknose SCS quota, North Carolina 
fishermen will be disproportionately impacted by this regulation by 
removing fair and equitable distribution of SCS quota and implementing 
measures contrary to measures in State waters. The State of South 
Carolina noted that the proposed quota of 56.9 mt dw for small coastal 
sharks will result in a 76 percent reduction in the landings of 
finetooth, Atlantic sharpnose and bonnethead sharks in the shark 
fishery. As such, this reduction in the quota for these three species 
would seem unwarranted at this time. Additionally, this proposed 
reduction will have significant repercussions among South Carolina's 
permitted commercial fisherman who landed 10 mt dw of these three 
species in 2008 or nearly 17 percent of the proposed quota for the 
Atlantic, Gulf of Mexico and Caribbean fisheries, combined. In 
addition, the small quota is likely to be reached and the fishery 
closed before South Carolina fishermen have an opportunity to land 
their traditional catch. For these reasons, NMFS should implement 
alternative A2 in combination with the gillnet prohibition, alternative 
B3.
    Response: NMFS recognizes that the status of non-blacknose SCS is 
not overfished and not experiencing overfishing. In the DEIS, the 
preferred alternative, A4, would have set the commercial quota for non-
blacknose SCS sharks at 56.9 mt dw, and the blacknose shark quota at 
14.9 mt dw. Due to recent data updates, analysis, and public comments, 
NMFS has changed the preferred alternative from A4 in the DEIS to A6 in 
the FEIS, which would set the commercial quota for non-blacknose SCS at 
221.6 mt dw and the blacknose shark quota at 19.9 mt dw. The final non-
blacknose SCS quota sets the commercial quota equal to the average non-
blacknose sharks SCS landings from 2004 through 2008 and therefore 
would not have economic impacts beyond the status quo. By looking at 
the recent Gillnet Observer Data from 2005-2008, NMFS agrees that it 
appears that commercial shark fishermen can target non-blacknose sharks 
and avoid catching blacknose sharks. If subsequent reviews of the 
management measures implemented under alternative A6 indicate that 
commercial shark fishermen are able to minimize their catch of 
blacknose sharks, NMFS could increase the non-blacknose SCS quota to 
allow for greater access to these species. Also, any underharvest of 
the non-blacknose SCS quota from the previous year could be added to 
the quota the following year, because all of the shark species in this 
complex (Atlantic sharpnose, finetooth and bonnethead) are not 
overfished and overfishing is not occurring. NMFS recognizes that there 
may be a high mortality rate for the blacknose sharks released from the 
various gears used in the SCS fishery. NMFS is attempting to limit the 
discard mortalities of blacknose sharks in the SCS fishery associated 
with the proposed SCS quota, by allowing the commercial shark fishermen 
to retain the number of sharks equal to the average landings of 
blacknose sharks from all gears based on the 2004-2008 Coastal 
Fisheries Logbook and Shark Gillnet Observer Data. In response to this 
comment,

[[Page 30491]]

NMFS made the foregoing changes to the FEIS and this final rule 
including the selection of an alternative to establish a non-blacknose 
SCS quota at 221.6 mt dw and allow continued use of gillnet as 
authorized gear for harvesting SCS. Changes to the final rule are 
discussed in more detail below.
    Comment 16: NMFS received several comments specific to the quota 
levels for blacknose sharks. Comments suggest that NMFS should prohibit 
the retention of blacknose sharks by placing the species on the 
prohibited list. Other commenters suggested that the blacknose shark 
quota needs to be high enough to allow for the retention of incidental 
catch. The State of Georgia supports the quotas in alternative A4 with 
gillnet closure in alternative B3 as it will significantly reduce the 
impacts of regulatory discards of blacknose sharks, which would occur 
if the quota for blacknose sharks is reached before the non-blacknose 
SCS quota.
    Response: NMFS agrees that the blacknose shark quota needs to be 
large enough for fishermen to keep blacknose sharks that are caught 
incidentally. As detailed in Chapter 4 and Appendix A, NMFS has changed 
the preferred alternative from A4 in the DEIS to A6 in the FEIS. Under 
alternative A6, the non-blacknose SCS (221.6 mt dw) and blacknose shark 
(19.9 mt dw) quotas would allow for incidental catch of blacknose 
sharks. Also, under alternative A6, both the blacknose and the non-
blacknose fisheries would close when either the quota was reached or 
the catch was projected to reach 80 percent of the quota. This offers 
an incentive to avoid blacknose sharks and target non-blacknose SCS to 
ensure that the non-blacknose SCS fishery does not close with quota 
still available. NMFS considered closing the entire SCS fishery 
(alternative A5) however, the stock assessment did not warrant such 
action. Under the rebuilding plan, a limited number of blacknose sharks 
can be retained while still meeting rebuilding goals. Furthermore, once 
a species is placed on the prohibited list, fishery-dependent data on 
the species will cease to be reported and cannot be used in future 
stock assessments or management measure determinations. In response to 
this comment, NMFS made the foregoing changes to the FEIS and this 
final rule including the selection of an alternative to establish a 
blacknose SCS quota at 19.9 mt dw and allow continued use of gillnet as 
authorized gear for harvesting SCS. The DEIS already included an 
alternative to close the SCS fishery that would have prohibited the 
retention of blacknose sharks. Therefore, an additional alternative to 
list blacknose as a prohibited species was not added to the FEIS. 
Changes to the final rule as a result of this comment are discussed in 
more detail below.
    Comment 17: NMFS received several comments regarding the overlap of 
the SCS gillnet fishery with other gillnet fisheries in the southeast 
region. Comments included: The NMFS proposal will force effort into 
other fisheries (e.g., kingfish fishery) and this will fracture those 
other fisheries; NMFS needs to know the number of blacknose shark 
catches in the mackerel fishery and how that relates to the 22-percent 
mortality of blacknose shark by gillnets; if NMFS is taking the bulk of 
effort away, why not let mackerel fishermen keep blacknose sharks; NMFS 
should eliminate blacknose sharks landings and allow mackerel fishermen 
to land other SCS; and NMFS should collect data on discards in the 
mackerel fishery.
    Response: NMFS recognizes that fishermen will adapt in different 
ways to new regulations placed on a fishery, which may include 
increasing their effort in other fisheries. NMFS plans to continue to 
collect the best available data from several sources including data on 
landings, discards, and bycatch. As this new data becomes available, 
regulation changes could be made that would provide fishermen access to 
resources that are ecologically and economically viable. Based on the 
most recent data, which indicates that gillnet fishermen may be able to 
avoid certain species, NMFS changed its preferred alternative from B3 
in the DEIS, which would have eliminated gillnet gear as an authorized 
gear from South Carolina south, to B1 in the FEIS, the No Action 
alternative, which retains gillnet as an authorized gear in the 
Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Also, under the 
selected alternative, A6, incidental catches of blacknose sharks will 
continue to be allowed. In response to this comment, NMFS made changes 
to the FEIS including the development of a preferred alternative that 
establishes a blacknose quota at 19.9 mt dw and a non-blacknose SCS 
quota at 221.6 mt dw. The DEIS already considered an alternative to 
close the entire SCS fishery which would essentially prohibit retention 
of blacknose. Therefore, an additional alternative to list blacknose as 
a prohibited species was not added to the FEIS. The discussion of 
displacing effort from the shark fishery into other gillnet fisheries 
was included in the FEIS. NMFS made changes in preferred alternative 
from the DEIS to the FEIS based on this and similar comments and made 
conforming changes to this final rule. The changes to the final rule 
are discussed below.
    Comment 18: NMFS needs to move blacktip sharks to the SCS quota and 
increase the quota for all SCS.
    Response: NMFS is moving towards species-specific management, 
including species-specific quota. However, for some species NMFS has 
only limited data, which requires management to be based on species 
within a complex of species. The 2007 SCS stock assessment assessed the 
SCS complex as a whole as well as each species individually, and 
recommended using species-specific results rather than the aggregated 
SCS complex results. The assessment recommended a blacknose shark-
specific TAC and a corresponding rebuilding timeframe. Therefore, based 
on these results, NMFS has removed blacknose sharks from the SCS quota 
and set a separate commercial quota for this species. A species-
specific quota enables NMFS to closely monitor blacknose shark landings 
and fishing effort according to the rebuilding plan. Blacktip sharks 
are currently managed in the non-sandbar LCS complex implemented in 
Amendment 2 to the Consolidated HMS FMP. 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 assessment recommended that blacktip shark landings should 
not change or increase from historical catch levels. Placing blacktip 
sharks within the non-blacknose SCS quota could drastically reduce the 
blacktip shark regional quota since the non-blacknose SCS shark quota 
is being reduced in the preferred alternative from 454 mt dw (status 
quo) to 221.6 mt dw (alternative A6 in the FEIS). Therefore, at this 
time, NMFS is not placing blacktip sharks within the SCS complex. NMFS 
has determined that the comment proposes an action that does not meet 
the purpose and need set forth in the DEIS and FEIS and therefore did 
not include it as an additional alternative for evaluation in the FEIS.
    Comment 19: NMFS stated that they want to help the U.S. fleet catch 
the entire tuna and swordfish quotas, so why is NMFS against SCS 
fisherman landing the SCS quota as appears to be the case in preferred 
alternative A4?
    Response: In the DEIS, the preferred alternative A4, would have set 
the non-blacknose quota at 56.9 mt dw and the blacknose shark species-
specific quota at 14.9 mt dw. Recent data, and the analysis of that 
data, has led NMFS to change the preferred alternative from A4 in the 
DEIS to A6 in the FEIS. With alternative A6, the preferred alternative

[[Page 30492]]

in the FEIS, selected, the non-blacknose SCS quota will be set at 221.6 
mt dw, which is the average landings of non-blacknose SCS from 2004 
through 2008. The blacknose shark species-specific quota will be set at 
19.9 mt dw. These regulations are being implemented because the status 
of the blacknose shark stock has been determined to be overfished, with 
overfishing occurring. Also, any underharvest of the non-blacknose SCS 
quota could be added to the following year's fishing quota, since the 
stock status of finetooth, Atlantic sharpnose, and bonnethead sharks 
have all been determined to be healthy. Also, under alternative A6, 
both the blacknose and the non-blacknose fisheries would close when 
either the quota was reached or the catch was projected to reach 80 
percent of the quota. This offers an incentive to avoid blacknose 
sharks and target non-blacknose SCS to ensure that the non-blacknose 
SCS fishery does not close with quota still available. These measures 
maximize the opportunity to harvest the healthy non-blacknose SCS while 
rebuilding and preventing overfishing on the blacknose shark stock. 
This comment did not target any specific section or issue analyzed in 
the DEIS and a specific change in the FEIS was not made. As mentioned, 
however, the preferred alternative for non-blacknose SCS quota in the 
DEIS has been adjusted in the preferred alternative in the FEIS to 
address this general concern. Conforming changes were made in this 
final rule. These changes are discussed below.
    Comment 20: NMFS should save the SCS fishery. NMFS took the 4,000 
lb LCS trip limit away and are now taking away blacknose sharks. Are 
there any proposals for buyouts for SCS fishermen?
    Response: Currently, there are no proposals to buyout SCS 
fishermen. Buyouts can occur via one of the three mechanisms, 
including: Through an industry fee, via appropriations from the United 
States Congress, and/or through funds provided from any State or other 
public sources or private or non-profit organizations. A buyout plan is 
not proposed in this amendment because the Agency is unable to 
implement a buyout as a management option. Buyouts must be initiated 
via one of the aforementioned mechanisms.
    Comment 21: We believe the reductions in the commercial quota and 
the elimination of the gillnet gear will have significant, positive 
effects. Based on estimates taken before 2007, your analyses determined 
that this fishery was responsible for 45 percent of the mortality on 
blacknose sharks. The Gulf of Mexico shrimp effort was reduced by 74 
percent from the average effort of 2001-2003. Because of this action, 
the historic 46 percent take by the trawl fishery would have already 
been reduced to about 12 percent of the total take. This reduction 
should, in combination with reductions from quota and gear 
alternatives, drive the estimates of total reductions in take by 
numbers of blacknose shark to something in excess of 80 percent, a 
value well above the target of 78 percent.
    Response: NMFS is working with the GMFMC, and agrees that blacknose 
shark mortalities in the shrimp trawl fishery have dropped 
significantly due to decreased effort in the shrimp trawl fishery in 
the Gulf of Mexico. Based on 2005-2008 Shark Gillnet Observer Data, 
NMFS believes that gillnet fishermen may be able to effectively target 
other SCS species while minimizing the mortality of blacknose sharks 
and protected species. Because of this analysis, NMFS has changed their 
preferred alternative from B3 in the DEIS, which would have eliminated 
gillnet gear from South Carolina south, to B1 in the FEIS, the No 
Action alternative, which would retain gillnets as an authorized 
commercial gear type for sharks. Based on this same data, and because 
of reductions in blacknose shark mortalities in the shrimp trawl 
fishery, NMFS has also changed the preferred quota alternative from A4 
in the DEIS to A6 in the FEIS, which would create a non-blacknose SCS 
quota of 221.6 mt dw and a blacknose shark quota of 19.9 mt dw. Thus, 
due to updated data, analyses, and public