Atlantic Highly Migratory Species; Atlantic Shark Management Measures, 23935-23940 [2011-10452]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 23935-23940]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10452]



[[Page 23935]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110120049-1144-01]
RIN 0648-BA69


Atlantic Highly Migratory Species; Atlantic Shark Management 
Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This rule would implement the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) recommendations 10-07 and 10-08, 
which prohibit the retention, transshipping, landing, storing, or 
selling of hammerhead sharks in the family Sphyrnidae (except for 
Sphyrna tiburo) and oceanic whitetip sharks (Carcharhinus longimanus) 
caught in association with ICCAT fisheries. This rule would affect the 
commercial HMS pelagic longline (PLL) fishery and recreational 
fisheries for tunas, swordfish, and billfish in the Atlantic Ocean, 
including the Caribbean Sea and Gulf of Mexico. This action implements 
ICCAT recommendations, consistent with the Atlantic Tunas Convention 
Act (ATCA) and furthers domestic management objectives under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

DATES: Written comments must be received by 5 p.m., local time, on May 
31, 2011.

ADDRESSES: You may submit comments, identified by 0648-BA69, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: https://www.regulations.gov.
     Fax: 301-713-1917, Attn: Peter Cooper.
     Mail: 1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The public hearing dates and locations are:
    1. May 16, 2011, 6-8 p.m.: Manteo Town Hall, 407 Budleigh Street, 
Manteo, NC 27954.
    2. May 19, 2011, 6-8 p.m.: Fort Pierce Library, 101 Melody Lane, 
Ft. Pierce, FL 34950.
    3. May 24, 2011, 2-4 p.m.: NOAA Building III, Room 1311B, 1315 
East-West Highway, Silver Spring, MD 20910.
    Copies of the supporting documents--including the draft 
Environmental Assessment (EA), Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), and the 2006 Consolidated 
Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP)--
are available from the HMS Web site at https://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Peter Cooper, Michael Clark, or Karyl 
Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION: The U.S. Atlantic shark fisheries are 
managed under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 
et seq. The U.S. Atlantic tuna and tuna-like species fisheries are 
managed under the dual authority of the Magnuson-Stevens Act, and ATCA, 
16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce 
(Secretary) to promulgate regulations, as may be necessary and 
appropriate, to implement ICCAT recommendations. The authority to issue 
regulations under the Magnuson-Stevens Act and ATCA has been delegated 
from the Secretary to the Assistant Administrator for Fisheries (AA), 
NOAA.
    On October 2, 2006, NMFS published in the Federal Register (71 FR 
58058) final regulations, effective November 1, 2006 that implemented 
the Consolidated Atlantic Highly Migratory Species (HMS) Fishery 
Management Plan (FMP). This FMP consolidated management of all Atlantic 
HMS (i.e., sharks, swordfish, tunas, and billfish) into one 
comprehensive FMP. The implementing regulations for Atlantic HMS are at 
50 CFR part 635.
    ICCAT is responsible for the conservation of tuna and tuna-like 
species in the Atlantic Ocean and adjacent seas. ICCAT recommendations 
are binding on Contracting Parties, unless Parties object pursuant to 
the treaty. All ICCAT recommendations are available on the ICCAT Web 
site at https://www.iccat.int/en/.
    Two shark measures adopted at the 17th Annual Meeting of ICCAT in 
November of 2010 are the subject of this proposed rulemaking. 
Recommendation 10-07, ``Conservation of Oceanic Whitetip Sharks Caught 
in Association with Fisheries in the ICCAT Convention Area,'' prohibits 
the retention, transshipping, landing, storing, or selling of oceanic 
whitetip sharks (Carcharhinus longimanus). The recommendation cites the 
fact that oceanic whitetip sharks are one of five species with the 
highest degree of risk based on an ICCAT ecological risk assessment, 
their high at-vessel survival rates and ease of identification, and the 
high proportion of juvenile fish that are caught as justification for 
adopting the recommendation.
    Recommendation 10-08 ``Hammerhead Sharks (Family Sphyrnidae) Caught 
in Association with Fisheries Managed by ICCAT,'' prohibits the 
retention, transshipping, landing, storing, or selling of hammerhead 
sharks in the family Sphyrnidae, except for bonnethead sharks (Sphyrna 
tiburo), taken in the Convention area in association with ICCAT 
fisheries. The recommendation cites sustainability concerns for 
scalloped and smooth hammerhead sharks, difficulty in identifying the 
three species (scalloped, smooth, and great) without bringing them 
onboard, and issues with Contracting Parties' obligations to report 
Task I and Task II data as justification for adopting the 
recommendation.
    These recommendations were adopted by ICCAT to reduce fishing 
mortality of oceanic whitetip and hammerhead sharks caught in 
association with ICCAT fisheries. In this proposed rule, NMFS considers 
changes to the HMS regulations at 50 CFR Part 635 consistent with the 
ICCAT recommendations. Specifically, NMFS proposes regulatory changes 
that would affect HMS vessels that catch sharks in association with 
tuna and tuna-like species, including commercial vessels that deploy 
PLL gear or hold an HMS Angling/Charter Headboat permit and are fishing 
for and retaining billfish, swordfish, and tunas. This proposed action 
is necessary to implement ICCAT recommendations and to reduce the 
mortality of oceanic whitetip and hammerhead sharks. NMFS is not 
proposing to prohibit retention in all HMS recreational fisheries 
because there is a recreational fishery targeting sharks that is not 
associated with ICCAT fisheries. NMFS is not proposing to prohibit the 
retention of oceanic whitetip and hammerhead sharks from bottom 
longline, gillnet, or handgear because these gears also target sharks

[[Page 23936]]

and are not used in association with ICCAT fisheries.
    NMFS prepared a draft Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and an Initial Regulatory Flexibility Analysis 
(IRFA), which present and analyze anticipated environmental, social, 
and economic impacts of each alternative contained in this proposed 
rule. The complete list of alternatives and related analyses is 
provided in the draft EA/RIR/IRFA, and is not repeated here in its 
entirety. A copy of the draft EA/RIR/IRFA prepared for this proposed 
rule is available from NMFS (see DATES and ADDRESSES).
    In this action, NMFS proposes to prohibit the retention of oceanic 
whitetip sharks and scalloped, smooth, and great hammerhead sharks on 
Atlantic HMS commercially-permitted vessels that have PLL gear on 
board. Regarding oceanic whitetip sharks, this species has not been 
assessed domestically; therefore, their stock status is currently 
unknown. However, in 2010, the United States formally submitted a 
proposal at the Convention on International Trade in Endangered Species 
of Wild Fauna and Flora's (CITES) Fifteenth meeting of the Conference 
of Parties for the inclusion of oceanic whitetip on Appendix II. The 
United States determined that globally, the oceanic whitetip shark 
qualified for listing in Appendix II under criterion A in Annex 2a, 
which states that it is known, or can be inferred or projected, that 
the regulation of trade in the species is necessary to avoid it 
becoming eligible for inclusion in Appendix I, and that oceanic 
whitetip shark would be banned from international trade. Depending on 
the area and study, oceanic whitetip shark populations have experienced 
declines of 60-70% in the northwest and central Atlantic Ocean. 
Abundance trend analyses of catch-rate data have reported large 
declines in abundance for some populations. In the northwest and 
western central Atlantic regions, analysis of logbook data indicated 
declines of 60-70% since 1992. While the U.S. CITES proposal covered 
scientific information on the oceanic whitetip in the Atlantic and 
Pacific Oceans, there have been no formal NMFS or peer-reviewed stock 
assessments for Atlantic oceanic whitetip sharks that have been 
determined to be appropriate for management action under the Magnuson-
Stevens Act.
    Given the declining abundance of oceanic whitetip sharks globally 
and the unknown status of the stock, the implementation of the ICCAT 
oceanic whitetip recommendation could benefit the status of this stock 
by reducing mortality in the Atlantic Ocean.
    An analysis of the 2005 through 2009 HMS logbook data covering the 
HMS PLL fishery indicates that, on average, a total of 50 oceanic 
whitetip sharks were kept per year by fishermen using PLL gear. This 
proposed action would require oceanic whitetip sharks to be released by 
those fishermen. According to the NMFS PLL observer program data from 
2005-2009, 77 percent of oceanic whitetip sharks caught were alive when 
brought to the vessel. Therefore, of the 50 oceanic whitetip sharks 
kept annually that would have to be released under this proposed 
action, 39 would likely be released alive. Although oceanic whitetip 
sharks are not caught in large numbers in the PLL fishery (i.e., less 
than 2 percent of PLL trips between 2005-2009 caught oceanic whitetip 
sharks), this proposed action could have minor, beneficial ecological 
impacts for oceanic whitetip sharks because mortality would be reduced 
in the PLL fishery. A fishing mortality reduction for oceanic whitetip 
sharks could also have beneficial impacts due to declining abundances 
of this stock as described in the 2009 U.S. CoP 15 CITES Appendix II 
listing proposal for oceanic whitetip (CITES 2009).
    Regarding hammerhead sharks, NMFS has not conducted a stock 
assessment for smooth or great hammerhead sharks; therefore, the status 
of these species of hammerhead sharks is unknown. In a recent notice 
published in the Federal Register, NMFS declared scalloped hammerhead 
sharks overfished with overfishing occurring consistent with the Hayes 
et al. (2009) peer-reviewed stock assessment.\1\ The stock is estimated 
to be depleted by approximately 83 percent of virgin stock size (i.e., 
the current population is only 17 percent of the virgin stock size). 
Based on this stock status determination, NMFS will be initiating an 
amendment to the 2006 Consolidated HMS FMP in order to implement 
regulations to end overfishing and rebuild the scalloped hammerhead 
shark stock within two years as mandated under the Magnuson-Stevens 
Act. Therefore, implementation of the ICCAT hammerhead recommendation 
could help to reduce mortality of scalloped hammerhead and contribute 
to the rebuilding of this species.
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    \1\ Hayes, C., Y. Jiao, and E. Cort[eacute]z. 2009. Stock 
Assessment of Scalloped Hammerheads in the Western Atlantic Ocean 
and Gulf of Mexico. North American Journal of Fisheries Management 
29:1406-1417.
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    In addition, an analysis of HMS logbook data from 2005 through 2009 
indicated that, on average, a total of 181 hammerhead sharks of any 
species are landed per year. Furthermore, it is difficult for most 
fishermen to distinguish among the hammerhead species. According to the 
NMFS PLL observer program data from 2005 through 2009, 55 percent of 
hammerhead sharks caught are alive when brought to the vessel. 
Therefore, of the 181 sharks kept annually that would have to be 
released under this proposed action, 100 of those hammerhead sharks 
would be released alive. Although hammerhead sharks are caught 
incidentally to tuna and tuna-like species and constitute a small 
portion of the non-target species catch (i.e., less than 2 percent of 
PLL trips between 2005 through 2009 caught hammerhead sharks), this 
proposed action would likely have minor, beneficial ecological impacts 
to hammerhead sharks due to the reduction of mortality from the 
retention prohibition and the overfished status of scalloped hammerhead 
sharks.
    Atlantic HMS commercial permit holders with PLL gear on board would 
no longer be allowed to retain oceanic whitetip sharks and scalloped, 
smooth, or great hammerhead sharks and could experience minor, adverse 
socioeconomic impacts. On average, from 2005 to 2009, approximately 12 
PLL vessels kept oceanic whitetip sharks each year. For oceanic 
whitetip sharks, on average a total of 1,462 lb per year were landed 
annually by those 12 PLL vessels combined from 2005 through 2009. 
Therefore, approximately $497 in revenues from the meat and $813 in 
revenues from the fins or a total of $1,310 in average annual gross 
revenues from landings of oceanic whitetip sharks across those PLL 
vessels, or $109 per year for each vessel that landed oceanic whitetip 
sharks, could be lost if PLL vessels had to discard all oceanic 
whitetip sharks that are caught. However, it is unlikely these PLL 
vessels would experience significant impacts due to the low proportion 
of oceanic whitetip sharks relative to total landings from PLL vessels. 
Other pelagic sharks, including common thresher, shortfin mako, 
porbeagle, and blue sharks, could still be landed and may offset any 
lost revenues experienced as a result of not being able to land oceanic 
whitetip sharks.
    Scalloped, smooth, and great hammerhead sharks, are caught more 
frequently on PLL gear than oceanic whitetip sharks. On average, from 
2005 through 2009, approximately 25 vessels kept hammerhead sharks each 
year. On average, 9,493 lb per year were landed by those 25 vessels 
from 2005 through

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2009. Pelagic longline fishermen could lose approximately $2,563 in 
revenues from meat and $5,282 in revenues from fins or a total of 
$7,845 per year in average annual gross revenues of hammerhead sharks, 
or $314 per year for each PLL vessel that landed hammerhead sharks 
because those vessels would no longer be authorized to retain 
scalloped, smooth, or great hammerhead sharks.
    When considering oceanic whitetip and hammerhead sharks together, 
this proposed action could have an overall impact of $9,155 per year to 
those PLL fishermen that landed oceanic whitetip and hammerhead sharks 
or an average of $247 per vessel per year as a result of this action. 
However, it is not likely that commercial PLL fishermen would alter 
commercial fishing practices for tuna and tuna-like species because 
oceanic whitetip and hammerhead sharks constitute a small portion of 
the PLL landings compared to the tuna and tuna-like species. Therefore, 
NMFS anticipates that this proposed action would have minor, adverse 
socioeconomic impacts to PLL fishermen.
    NMFS is also proposing to prohibit retention of oceanic whitetip 
and hammerhead sharks by recreational fishermen fishing with a General 
Category permit participating in a HMS tournament or those fishing 
under an HMS Angling or Charter/Headboat permit when tuna or tuna-like 
species are also retained. NMFS recreational survey data, which 
includes HMS Angling and Charter/Headboat permit holders, from 2005 
through 2009 indicates that recreational landings of either oceanic 
whitetip or hammerhead sharks along with tunas, swordfish, and billfish 
are rare events. The Large Pelagics Intercept Survey (LPIS), which 
covers the areas from Virginia to Maine, only intercepted three trips 
that landed either an oceanic whitetip or hammerhead shark out of 
18,626 intercepted trips over the time period. Of those three trips, no 
other HMS species were reported caught. Over the same time period, the 
Marine Recreational Fisheries Statistics Survey (MRFSS), which covers 
the entire Atlantic and Gulf of Mexico (except for Texas), for HMS 
Angling and Charter/Headboat permit holders intercepted 29 angler trips 
that landed either an oceanic whitetip or hammerhead shark. Of those 29 
trips, only three landed additional HMS, although all of the additional 
HMS retained were sharks, not tuna or tuna-like species. Therefore, 
NMFS concluded that because there are limited reported occurrences of 
oceanic whitetip or hammerhead sharks landed along with tuna or tuna-
like HMS on the same recreational fishing trip, this scenario rarely 
occurs in the recreational HMS fishery.
    This proposed action would prohibit fishermen holding a HMS 
Angling, a Charter/Headboat permit, or a General Category permit when 
fishing in a HMS tournament, from retaining oceanic whitetip or 
hammerhead sharks when tuna or tuna-like species are also retained on 
board. Data suggests that this practice is a rare event for these 
permit holders; therefore reducing current recreational fishing 
mortality and limiting future fishing effort on oceanic whitetip and 
hammerhead sharks by these permit holders would have minor, beneficial 
ecological impacts.
    Prohibiting HMS Angling and Charter/Headboat permit holders from 
retaining oceanic whitetip and/or hammerhead sharks is anticipated to 
have minor, adverse socioeconomic impacts, due to limiting fishing 
opportunities for oceanic whitetip and hammerhead sharks while 
retaining tuna or tuna-like HMS. NMFS analyzed LPIS and MRFSS data from 
2005 through 2009 to determine the frequency of recreational fishing 
trips that retained either an oceanic whitetip or hammerhead shark 
along with a tuna or tuna-like HMS. However, because this was such a 
rare occurrence during the time period, no reliable estimate could be 
made. Although there are no instances of oceanic whitetip or hammerhead 
sharks retained along with tuna or tuna-like species in the LPIS or 
MRFSS data from 2005 through 2009, prohibiting retention of these 
sharks along with tuna or tuna-like species would limit fishing 
opportunities, and could lead to fewer recreational trips. Charter/
Headboats could experience a decrease in trips, as much of their 
business is based on providing recreational anglers the opportunity to 
catch hammerheads or oceanic whitetip sharks. The average price for a 
full day charter in 2004 was $1,053. Creating an annual estimate of 
recreational trips with oceanic whitetip and/or hammerhead landings 
from the limited number of intercepts from the LPIS (3) and MRFFS (29) 
over the time period, would result in an estimate with extremely low 
precision. Using only the actual intercepts over the time period (32) 
and assuming that all of those intercepts were for-hire Charter/
Headboat trips, the total economic impact from 2005 through 2009 would 
be $33,936 ($6,788/year), but because none of those trips landed an 
oceanic whitetip or hammerhead shark along with a tuna or tuna-like 
species, NMFS anticipates that adverse socioeconomic impacts to 
Charter/Headboat operations would be minor.
    This proposed action could have minor, adverse socioeconomic 
impacts on HMS fishing tournaments. According to HMS tournament 
registration data from 2005 through 2009, approximately 13 percent of 
all registered HMS tournaments awarded points for Large Coastal Non-
ridgeback and/or Pelagic sharks along with at least one tuna or tuna-
like HMS. The HMS tournament data does not specify sharks to the 
species level; therefore, it is unknown how many of these tournaments 
awarded points for hammerhead sharks and oceanic whitetip sharks, which 
fall into the Large Coastal Non-ridgeback and Pelagic shark categories, 
respectively. Assuming that points were awarded for hammerhead and 
oceanic whitetip sharks in all of these instances, the adverse 
socioeconomic impact to tournaments is expected to be minor when both 
sharks and tuna or tuna-like species are retained on board, as it only 
encompasses a small percentage (13.1 percent) of all HMS tournaments 
over the time period. Recreational fishermen would still be able to 
retain other pelagic and large coastal shark species and tunas, 
swordfish, and billfish on the same fishing trip which may offset lost 
revenues as a result of this proposed rule.
    Minor, adverse socioeconomic impacts are anticipated for vessels 
that hold both Charter/Headboat and limited access shark permits that 
would commercially retain oceanic whitetip and/or hammerhead sharks 
along with tuna or tuna-like HMS, because of the infrequent landings of 
these species by this specific permit combination. In 2009, less than 
one percent of limited access shark permit holders also held a Charter/
Headboat permit, and none of those vessels reported any commercial 
landings of oceanic whitetip or hammerhead sharks in the Coastal 
Fisheries Logbook. Currently, there is no commercial oceanic whitetip 
or hammerhead revenue being generated by vessels with this permit 
combination, but because this action would limit this fishing practice, 
minor, adverse socioeconomic impacts could result.
    In conclusion, the proposed action of prohibiting the retention of 
oceanic whitetip sharks and scalloped, smooth, and great hammerhead 
sharks in the PLL, HMS Angling and Charter/Headboat fisheries for tuna 
and tuna-like species is likely to have minor beneficial ecological 
impacts because of the potential reduction in mortality, and minor 
adverse socioeconomic impacts because these species constitute a low

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percentage of the total PLL landings and the low occurrence of these 
shark species being caught in the HMS recreational fisheries along with 
billfish, swordfish and tunas.

Public Hearings

    Comments on this proposed rule may be submitted via https://www.regulations.gov, mail, or fax and comments may also be submitted at 
a public hearing (see DATES and ADDRESSES). NMFS solicits comments on 
this proposed rule by May 31, 2011. NMFS will hold three public 
hearings for this proposed rule. The hearing locations are physically 
accessible to people with disabilities. Requests for sign language 
interpretation or other auxiliary aids should be directed to Peter 
Cooper at 301-713-2347, at least 7 days prior to the meeting. The 
public is reminded that NMFS expects participants at the public 
hearings to conduct themselves appropriately. At the beginning of each 
public hearing, a representative of NMFS will explain the ground rules 
(e.g., alcohol is prohibited from the hearing room; attendees will be 
called to give their comments in the order in which they registered to 
speak; each attendee will have an equal amount of time to speak; and 
attendees should not interrupt one another). The NMFS representative 
will attempt to structure the meeting so that all attending members of 
the public will be able to comment, if they so choose, regardless of 
the controversial nature of the subject(s). Attendees are expected to 
respect the ground rules, and, if they do not, they will be asked to 
leave the hearing.

Classification

    Pursuant to the Magnuson-Stevens Act, the NMFS Assistant 
Administrator has determined that the proposed rule is consistent with 
the 2006 Consolidated HMS FMP and its amendments, other provisions of 
the Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    NMFS prepared an environmental assessment for this rule that 
discusses the impact on the environment as a result of this rule. In 
this proposed action, NMFS is considering a prohibition against 
retaining oceanic whitetip sharks and scalloped, smooth, and great 
hammerhead sharks in the Atlantic PLL, HMS Angling and HMS Charter/
Headboat fisheries for tuna and tuna-like species consistent with ICCAT 
Recommendations 10-07 and 10-08. A copy of the environmental assessment 
is available from NMFS (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as 
required by section 603 of the RFA (RFA). The IRFA describes the 
economic impact this proposed rule, if adopted, would have on small 
entities. A description of the action, why it is being considered, and 
the legal basis for this action are contained at the beginning of this 
section in the preamble and in the SUMMARY section of the preamble. A 
summary of the analysis follows. A copy of this analysis is available 
from NMFS (see ADDRESSES).
    In compliance with section 603(b)(1) of the Regulatory Flexibility 
Act, the purpose of this proposed rulemaking is, consistent with the 
Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its 
amendments to implement recommendations of ICCAT pursuant to ATCA and 
to achieve domestic management objectives under the Magnuson-Stevens 
Act.
    In compliance with section 603(b)(2) of the Regulatory Flexibility 
Act, the objectives of this proposed rulemaking are to consider changes 
to the HMS regulations at 50 CFR part 635 consistent with ICCAT 
recommendations. NMFS proposes to implement the ICCAT shark 
recommendations in the Atlantic HMS fisheries that target tuna and 
tuna-like species because NMFS considers these fisheries to be the 
ICCAT managed fisheries. The regulatory changes would affect HMS 
vessels that catch sharks in association with tuna and tuna-like 
species, including commercial vessels that deploy PLL gear and HMS 
Angling/Charter Headboat vessels fishing for billfish, swordfish, and 
tunas. This proposed action is necessary to implement ICCAT 
recommendations pursuant to ATCA. In compliance with the ATCA, NMFS is 
required to implement domestic regulations consistent with 
recommendations adopted by ICCAT as necessary and appropriate.
    Section 603(b)(3) requires Federal agencies to provide an estimate 
of the number of small entities to which the rule would apply. In 
accordance with the Small Business Administration (SBA) size standards, 
NMFS used the following thresholds to determine if an entity regulated 
under this action would be considered a small entity: average annual 
receipts less than $4.0 million for fish-harvesting, average annual 
receipts less than $6.5 million for charter/party boats, 100 or fewer 
employees for wholesale dealers, or 500 or fewer employees for seafood 
processors. Using these thresholds, NMFS determined that all HMS permit 
holders are small entities. Specifically, this proposed action would 
apply to all participants in the Atlantic HMS commercial and 
recreational fisheries that target tuna and tuna-like species. As of 
October 2010, 248 vessels held a Tuna Longline permit and can be 
reasonably assumed to use PLL gear, 24,479 held an Atlantic HMS Angling 
permit, and 4,174 vessels held an Atlantic HMS Charter/Headboat permit. 
These permitted vessels consist of commercial, recreational, and 
charter vessels as well as headboats. Vessels holding these permits 
could be affected by this action.
    This proposed rule does not contain any new reporting, 
recordkeeping, or other compliance requirements (5 U.S.C. 603(b)(4)). 
Similarly, this proposed rule would not conflict, duplicate, or overlap 
with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, 
dealers, and other participants in these fisheries must comply with a 
number of international agreements, domestic laws, and other FMPs. 
These include, but are not limited to, the Magnuson-Stevens Act, ATCA, 
the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, 
the Endangered Species Act, the National Environmental Policy Act, the 
Paperwork Reduction Act, and the Coastal Zone Management Act. NMFS does 
not believe that the proposed regulations would duplicate, overlap, or 
conflict with any relevant regulations, Federal or otherwise.
    Under section 603(c), agencies are required to describe any 
alternatives to the proposed rule which accomplish the stated 
objectives and which minimize any significant economic impacts. These 
impacts are discussed below and in the draft Environmental Assessment 
for the proposed action. Additionally, the Regulatory Flexibility Act 
(5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant 
alternatives that would assist an agency in the development of 
significant alternatives. These categories of alternatives are: (1) 
Establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) use of performance rather than design standards; and, (4) 
exemptions from coverage of the rule for small entities.
    In order to meet the objectives of this proposed rule, consistent 
with

[[Page 23939]]

Magnuson-Stevens Act, NMFS cannot exempt small entities or change the 
reporting requirements only for small entities because all the entities 
affected are considered small entities. Thus, there are no alternatives 
discussed that fall under the first, second, and fourth categories 
described above. NMFS does not know of any performance or design 
standards that would satisfy the aforementioned objectives of this 
rulemaking while, concurrently, complying with the Magnuson-Stevens 
Act. Thus, there are no alternatives considered under the third 
category. As described below, NMFS analyzed several different 
alternatives in this proposed rulemaking and provides rationale for 
identifying the preferred alternatives to achieve the desired 
objective.
    NMFS has prepared this IRFA to analyze the impacts on small 
entities of the alternatives for establishing ICCAT shark 
recommendations for all domestic fishing categories that target tuna 
and tuna-like species. The IRFA assesses the impacts of the various 
alternatives on the vessels that participate in the Atlantic HMS 
commercial and recreational fisheries that target tuna and tuna-like 
species, all of which are considered small entities. Three alternatives 
were considered and analyzed and include (A1) no action; (A2) 
implementing the ICCAT shark recommendations in the commercial PLL 
fishery for tuna and tuna-like species; and (A3) implementing the ICCAT 
shark recommendations in the HMS Angling and Charter/Headboat fisheries 
for tuna and tuna-like species.
    Under the No Action Alternative, A1, there would be no additional 
economic impacts to HMS vessels fishing for tuna and tuna-like species. 
Commercial vessels that fish for tuna and tuna-like species that are 
also currently authorized to land oceanic whitetip and hammerhead 
sharks would be able to continue that practice. Total gross average 
annual revenues from oceanic whitetip and hammerhead shark meat and 
fins from all vessels that fished for tuna or tuna-like species from 
2005 through 2009 was $9,155. Vessels fishing recreationally for tuna 
or tuna-like species would continue to have the ability to retain an 
oceanic whitetip or hammerhead shark along with a tuna or tuna-like 
species on the same recreational trip under the no action alternative.
    Under Alternative A2, a preferred alternative, ICCAT shark 
recommendations would be applied to PLL vessels fishing commercially 
for tuna and tuna-like species. This alternative would prohibit 
retention of oceanic whitetip and hammerhead sharks by PLL vessels. On 
average, from 2005 through 2009, less than 2 percent of the total PLL 
trips kept oceanic whitetip sharks, which equates to an average of 12 
PLL vessels per year that kept caught oceanic whitetip sharks. On 
average, a total of 1,462 lb of oceanic whitetip sharks were landed 
annually by 12 PLL vessels on average from 2005 through 2009. From 2005 
through 2009, on average, 2 percent of the total PLL trips kept 
hammerhead sharks, which equates to an average of 25 vessels that kept 
hammerheads on an annual basis. On average, 9,493 lb in total were 
landed from 25 PLL vessels per year from 2005 through 2009. Gross 
average annual revenues from oceanic whitetip and hammerhead shark meat 
and fins from the 25 PLL vessels that fished for tuna or tuna-like 
species and kept oceanic whitetip or hammerhead sharks from 2005 
through 2009 were $9,155 or $366 per vessel. NMFS prefers Alternative 2 
at this time, because it would implement ICCAT shark recommendations 
and would have minor adverse socioeconomic impacts on the PLL fishery.
    Under Alternative A3, a preferred alternative, ICCAT shark 
recommendations would be applied to vessels holding a General Category 
permit when fishing in an HMS tournament or holding either an HMS 
Angling or Charter/Headboat permit fishing either recreationally or 
commercially for tuna and tuna-like species. This alternative would 
prohibit retention of oceanic whitetip and hammerhead sharks along with 
tuna and tuna-like species by vessels fishing recreationally and by 
Charter/Headboat permit holders fishing commercially. Although there 
are no instances of oceanic whitetip or hammerhead sharks retained 
along with tuna or tuna-like species in the LPIS or MRFS data from 2005 
through 2009, this alternative could limit fishing opportunities and 
lead to fewer fishing trips. Charter/Headboats could experience a 
decrease in trips as much of their business is based on providing 
recreational anglers the opportunity to catch hammerhead and oceanic 
whitetip sharks. However, because none of the intercepted Charter/
Headboat trips landed oceanic whitetip and hammerhead sharks along with 
tuna or tuna-like species, NMFS anticipates the impacts to Charter/
Headboats to be minor. NMFS prefers this alternative at this time, 
because it would implement ICCAT shark recommendations and would have 
minor, adverse socioeconomic impacts on the HMS Angling and Charter/
Headboat fisheries.

List of Subjects in 50 CFR Part 635

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

    Dated: April 26, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    1. The authority citation for part 635 continues to read as 
follows:

    Authority:  16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In Sec.  635.21, paragraph (c)(1) is revised to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (c) * * *
    (1)(i) If a vessel issued or required to be issued a permit under 
this part is in a closed area designated under paragraph (c)(2) of this 
section and has bottom longline gear onboard, the vessel may not, at 
any time, possess or land any pelagic species listed in Table 2 of 
Appendix A to this part in excess of 5 percent, by weight, of the total 
weight of pelagic and demersal species possessed or landed, that are 
listed in Tables 2 and 3 of Appendix A to this part.
    (ii) If pelagic longline gear is on board a vessel issued a permit 
under this part, persons aboard that vessel may not retain, transship, 
land, sell, store oceanic whitetip sharks or scalloped, smooth, or 
great hammerhead sharks.
* * * * *
    3. In Sec.  635.22, paragraph (a) is revised to read as follows:


Sec.  635.22  Recreational retention limits.

    (a) General. (1) Atlantic HMS caught, possessed, retained, or 
landed under these recreational limits may not be sold or transferred 
to any person for a commercial purpose. Recreational retention limits 
apply to a longbill spearfish taken or possessed shoreward of the outer 
boundary of the Atlantic EEZ, to a shark taken from or possessed in the 
Atlantic Ocean including the Gulf of Mexico and Caribbean Sea, to a 
North Atlantic swordfish taken from or possessed in the Atlantic Ocean, 
and to bluefin and yellowfin tuna taken from

[[Page 23940]]

or possessed in the Atlantic Ocean. The operator of a vessel for which 
a retention limit applies is responsible for the vessel retention limit 
and for the cumulative retention limit based on the number of persons 
aboard. Federal recreational retention limits may not be combined with 
any recreational retention limit applicable in state waters.
    (2) Vessels issued a HMS General Category permit under Sec.  
635.4(d) that are participating in a HMS registered tournament, vessels 
issued a HMS Angling category permit under Sec.  635.4(c), or vessels 
issued a HMS Charter/Headboat permit under Sec.  635.4(b) may not 
retain oceanic whitetip sharks or scalloped, smooth, or great 
hammerhead sharks if swordfish, tuna, or billfish are retained or 
possessed on board the vessel. Those vessels also may not retain 
swordfish, tuna, or billfish if oceanic whitetip sharks, or scalloped, 
smooth or great hammerheads are retained or possessed on board the 
vessel.
* * * * *
    4. In Sec.  635.24, paragraphs (a)(2) and (a)(4)(i) are revised to 
read as follows:


Sec.  635.24  Commercial retention limits for sharks and swordfish.

* * * * *
    (a) * * *
    (2) From July 24, 2008 through December 31, 2012, a person who owns 
or operates a vessel that has been issued a directed LAP for sharks and 
does not have a valid shark research permit, or a person who owns or 
operates a vessel that has been issued a directed LAP for sharks and 
that has been issued a valid shark research permit but does not have a 
NMFS-approved observer on board, may retain, possess, or land no more 
than 33 non-sandbar LCS per vessel per trip if the fishery is open per 
Sec. Sec.  635.27 and 635.28. Such persons may not retain, possess, or 
land sandbar sharks or, as specified at Sec.  635.21(c)(1)(ii), 
scalloped, smooth or great hammerhead sharks. As of January 1, 2013, a 
person who owns or operates a vessel that has been issued a directed 
LAP for sharks and does not have a valid shark research permit, or a 
person who owns or operates a vessel that has been issued a directed 
LAP for sharks and that has been issued a shark research permit but 
does not have a NMFS-approved observer on board, may retain, possess, 
or land no more than 36 non-sandbar LCS per vessel per trip if the 
fishery is open per Sec.  635.27 and Sec.  635.28. Such persons may not 
retain, possess, or land sandbar sharks or, as specified at Sec.  
635.21(c)(1)(ii), scalloped, smooth or great hammerhead sharks.
* * * * *
    (4)(i) A person who owns or operates a vessel that has been issued 
a directed shark LAP may retain, possess, or land pelagic sharks, 
except as specified at Sec.  635.21(c)(1)(ii), if the pelagic shark 
fishery is open per Sec. Sec.  635.27 and 635.28.
* * * * *
    5. In Sec.  635. 31, paragraph (c)(6) is added to read as follows:


Sec.  635.31  Restrictions on sale and purchase.

* * * * *
    (c) * * *
    (6) A dealer issued a permit under this part may not purchase 
oceanic whitetip sharks or scalloped, smooth, or great hammerhead 
sharks from an owner or operator of a fishing vessel with pelagic 
longline gear on board, or from the owner of a fishing vessel issued 
both a HMS Charter/Headboat permit and a commercial shark permit when 
tuna, swordfish or billfish are on board the vessel, offloaded from the 
vessel, or being offloaded from the vessel.
* * * * *
    6. In Sec.  635.71, paragraph (d)(18) is added to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (18) Retain, transship, land, store, sell or purchase oceanic 
whitetip sharks or scalloped, smooth, or great hammerhead sharks as 
specified in Sec.  635.21 (c)(1)(ii), Sec.  635.31(c)(6) and Sec.  
635.22(a)(2).

[FR Doc. 2011-10452 Filed 4-28-11; 8:45 am]
BILLING CODE 3510-22-P