Atlantic Highly Migratory Species; Smoothhound Shark and Atlantic Shark Management Measures, 73128-73146 [2015-29516]

Download as PDF mstockstill on DSK4VPTVN1PROD with RULES 73128 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations be unacceptable to conduct a test with a well-worn, faded blue flag. iv. Consider Daylight, Darkness, and Weather Conditions to the Extent Those Factors Might Skew the Test Results. The railroad’s procedures should allow a medical examiner to inform the testing officer that a particular examinee must be tested at night (i.e., under darkness) or during the day with bright sunshine, or under some other condition, so that the test can appropriately focus on the examinee’s known color vision deficiency found during the initial medical testing and will be an accurate indicator of whether the examinee can safely perform anticipated locomotive engineer or conductor duties. For most people, signal visibility will be the greatest at night and more challenging during the daytime in bright sun when the sky is clear. Field testing conducted at sunrise or sunset may pose a greater likelihood that severe glare could skew test results such that it would be difficult for individuals with normal color vision to identify a signal indication or aspect. FRA’s regulations do not prohibit a railroad from requiring multiple field tests under different operating or working conditions, and certainly some examinees will warrant such testing based on their known vision deficiency. Likewise, if a test is conducted during a snowstorm, rainstorm, fog, or other weather conditions that would inhibit a person’s vision, acceptable sight distances should be adjusted accordingly, and in some instances, may suggest that a test cannot be verified as reliable and should be voided. d. Comparability. i. Implement Procedures To Address Bias Accusations. To effectively address accusations that a particular test was unfairly designed, implemented, or scored, a railroad should allow the examinee to bring along a volunteer witness of the examinee’s choosing, and all participants, including witnesses, should be afforded an opportunity to record their observations regarding whether testing procedures were followed and the conditions under which the test was conducted. The testing officer should have a standard method that will capture the names and contact information of any witnesses who observe the test, and the railroad should permit the examinee and any witnesses an opportunity to submit their observations in writing for direct review by the railroad’s medical examiner. The railroad should provide the medical examiner with the authority to void any test in which the examinee or another witness makes a substantial showing that bias or prejudice may have led to VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 a test failure and, in such a situation, request that a new test be conducted with a different testing officer. ii. Create Adequate Records and Provide to Examinee. Because an examinee who fails a field test and is subsequently denied certification or recertification may request FRA to review that decision, each railroad should be prepared to provide the examinee with the results of any field tests. A railroad should consider developing a method or protocol by which the testing officer offers a copy of the completed test form to the examinee upon completion of the test. The railroad may want the testing officer to record on the form whether the examinee was offered a copy of the form, and whether the examinee accepted receipt. The form may also include a signature line for the examinee to acknowledge receipt of the completed test form. Issued in Washington, DC, on November 17, 2015. Robert C. Lauby, Associate Administrator for Railroad Safety, Chief Safety Officer. [FR Doc. 2015–29640 Filed 11–23–15; 8:45 am] BILLING CODE 4910–06–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 110819516–5913–02] RIN 0648–BB02 Atlantic Highly Migratory Species; Smoothhound Shark and Atlantic Shark Management Measures National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; fishery notification. AGENCY: This final rule implements Amendment 9 to the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) (Amendment 9) to bring smoothhound sharks under Federal management and establishes an effective date for previously-adopted shark management measures finalized in Amendment 3 to the 2006 Consolidated Atlantic HMS FMP (Amendment 3) and the 2011 Final Rule to Modify the Retention of Incidentally-Caught Highly Migratory Species in Atlantic Trawl Fisheries (August 10, 2011) (2011 HMS Trawl Rule). Specifically, this final rule SUMMARY: PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 establishes Atlantic and Gulf of Mexico regional smoothhound shark annual commercial quotas based on recent stock assessments; implements the shark gillnet requirements of the 2012 Shark and Smoothhound Biological Opinion (BiOp); and modifies current regulations related to the use of vessel monitoring systems (VMS) by Atlantic shark fishermen using gillnet gear. The term ‘‘smoothhound sharks’’ collectively refers to smooth dogfish (Mustelus canis), Florida smoothhound (M. norrisi), Gulf smoothhound (M. sinusmexicanus), small eye smoothhound (M. higmani), and any other Mustelus spp. that might be found in U.S. waters of the Atlantic, Gulf of Mexico, and Caribbean, collectively. This rule also implements the smooth dogfish specific provisions in the Shark Conservation Act of 2010 (SCA). The SCA requires that all sharks landed from Federal waters in the United States be landed with their fins naturally attached to the carcass, but includes a limited exception for smooth dogfish. For the Federal Atlantic shark fisheries, current HMS regulations require federallypermitted shark fishermen to land all sharks with fins naturally attached to the carcass. The SCA’s fins-attached requirement is being addressed nationwide through a separate ongoing rulemaking. This final rule only addresses the provision contained in the SCA that allows at-sea fin removal of Atlantic smooth dogfish. Additionally, NMFS will hold an operator-assisted, public conference call and webinar on December 15, 2015, to discuss the methodology used to calculate the Atlantic and Gulf of Mexico smoothhound shark quotas (see ADDRESSES). Effective March 15, 2016. An operator-assisted, public conference call and webinar will be held on December 15, 2015, from 2:00 p.m. to 4:00 p.m., EST. DATES: The conference call-in phone number is 1–800–857–9816; participant pass code is 9776014. Participants are strongly encouraged to log/dial in 15 minutes prior to the meeting. NMFS will show a brief presentation via webinar followed by public questions. To join the webinar go to: https://noaa-meets.webex.com/noaameets/j.php?MTID=m812c15f48b46787 ea7475fc010c7099e, enter your name and email address, and click the ‘‘JOIN’’ button. If requested, the meeting number is 991 661 137 and the meeting password is NOAA. Participants who have not used WebEx before will be prompted to download and run a plug- ADDRESSES: E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES in program that will enable them to view the webinar. Copies of Amendment 9, including the Final Environmental Assessment (EA) and other relevant documents, are available from the HMS Management Division Web site at http://www.nmfs. noaa.gov/sfa/hms/. Copies of the 2015 smoothhound shark stock assessment results are available on the Southeast Data Assessment and Review (SEDAR) Web site at http://sedarweb.org/sedar39. FOR FURTHER INFORMATION CONTACT: Steve Durkee by phone: 202–670–6637 or Karyl Brewster-Geisz by phone: 301– 427–8503 or by fax: 301–713–1917. SUPPLEMENTARY INFORMATION: Atlantic sharks are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the authority to promulgate regulations under the Magnuson-Stevens Act has been delegated from the Secretary to the Assistant Administrator (AA) for Fisheries, NOAA. On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) final regulations, effective November 1, 2006, which detailed management measures for Atlantic HMS fisheries, including for the smoothhound shark and Atlantic shark fisheries. The implementing regulations for the 2006 Consolidated HMS FMP and its amendments are at 50 CFR part 635. This final rule implements the conservation and management measures from Amendment 9 in the Atlantic shark and smoothhound shark fisheries and the measures in Amendment 3 and 2011 HMS Trawl Rule in the Atlantic smoothhound shark fishery. Background A brief summary of the background of this final action is provided below. A more detailed history of the development of these regulations and the alternatives considered are described in the Final Environmental Assessment (EA) for Amendment 9, which can be found online on the HMS Web site (see ADDRESSES). NMFS published a proposed rule on August 7, 2014 (79 FR 46217), outlining the alternatives analyzed in the Draft EA, identifying preferred alternatives, and soliciting public comments on the measures, which would impact the smoothhound shark and Atlantic shark fisheries. Specifically, the proposed rule included the following measures: For smooth dogfish only, modifying prohibitions on at-sea fin removal to be consistent with the SCA; implementing Term and Condition 4 of the 2012 Shark BiOp; based on updated catch data, VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 adjusting the smoothhound shark quota finalized in Amendment 3; and modifying the VMS requirements for shark gillnet vessels. The full description of the management and conservation measures considered is included in both the Final EA for Amendment 9 and the proposed rule and is not repeated here. The comment period for the Draft EA and proposed rule for Amendment 9 ended on November 14, 2014. The comments received, and responses to those comments, are summarized below under the heading labeled Response to Comments. Management measures in Amendment 9 will impact both the smoothhound shark and Atlantic shark fisheries. This rule finalizes most of the management measures, but modifies others, that were contained in the Draft EA and proposed rule for Amendment 9. This section provides a summary of the final management measures being implemented by Amendment 9 and notes changes from the proposed rule to this final rule. Measures that are different from the proposed rule, or measures that were proposed but not implemented, are described in detail under the heading titled Changes from the Proposed Rule. This final rule implements the smooth dogfish-specific measures in the SCA to establish an allowance for the removal of smooth dogfish fins while at sea. To implement the measures, the proposed rule considered three categories of requirements—catch composition, state permitting, and geographic applicability of the exceptions—and a range of alternatives within each category (‘‘subalternatives’’). Only fishermen that meet the requirements under all three of these categories and that are, as specified in the Act, fishing within 50 nautical miles of shore and possess fins in an amount that does not exceed 12 percent of the carcass weight, would be authorized to remove smooth dogfish fins at sea. For catch composition, NMFS preferred in the proposed rule a subalternative that would have required that smooth dogfish make up at least 75 percent of the retained catch on board and that no other sharks could be retained. For state permitting, the proposed rule included a sub-alternative that would have required an individual to hold a state commercial fishing permit that allows smooth dogfish retention, in addition to a Federal smoothhound permit. With regard to geographic applicability, the proposed rule included a sub-alternative that would have applied the SCA exception for smooth dogfish along the entire Atlantic coast but not to Florida’s coast PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 73129 in the Gulf of Mexico. During the public comment period, NMFS received support for the two proposed subalternatives related to state fishing permits and geographic applicability of the SCA provisions. However, NMFS received many comments opposing the catch composition requirement of 75 percent and the ‘‘no other sharks on board’’ provision. Commenters expressed concern that these requirements do not meet the intent of the statutory exception because they do not reflect the mixed nature of catch in the smooth dogfish fishery and would render the exception largely meaningless. They also stated that the catch composition requirement would lead to excessive dead discards and would be burdensome. As detailed under the Changes from the Proposed Rule heading, NMFS is implementing the two sub-alternatives related to state fishing permits and geographic applicability of the exception as originally proposed. NMFS is changing the catch composition requirement and will require smooth dogfish to make up at least 25 percent of the total retained catch in order to remove the fins of smooth dogfish while at sea. Additionally, fishermen may retain other sharks on board provided that the fins of other shark species remain naturally attached to the carcass through offloading. Only fishermen adhering to the measures in the three sub-alternatives, as well as fishing within 50 nautical miles of shore and possessing fins in an amount that does not exceed 12 percent of the carcass weight, will be authorized to remove smooth dogfish fins at sea. This final rule also establishes separate Atlantic and Gulf of Mexico regional smoothhound shark total allowable catches (TACs) and commercial quotas based on the results of the 2015 Southeast Data Assessment and Review (SEDAR) 39 stock assessments for smoothhound sharks. The assessments were finalized and peer reviewed in March 2015. On June 29, 2015, NMFS issued a stock status determination notice (80 FR 36974) that stated that ‘‘[d]ata from tagging and genetic research in SEDAR 39 support the existence of two distinct Atlantic and Gulf of Mexico stocks of smooth dogfish separated by peninsular Florida. Therefore, smooth dogfish was treated as two separate stocks, one in the Atlantic region and one in the Gulf of Mexico region.’’ 80 FR 36974 (June 29, 2015). Each stock had a status of not overfished with no overfishing occurring. Based on public comments requesting that commercial quotas be based on stock assessments and not E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES 73130 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations landings, NMFS is implementing regional smoothhound shark TACs and commercial quotas based on SEDAR 39, instead of the proposed, single overall quota based on landings data. Specifically, while we proposed an overall commercial quota of 1,739.9 mt dw covering both the Atlantic and Gulf of Mexico regions (using commercial landings data in the absence of a stock assessment), this final rule establishes separate regional TACs and commercial quotas within those TACs as follows: An Atlantic regional smoothhound shark TAC of 1,430.6 mt dw with a commercial quota of 1,201.7 mt dw, and a Gulf of Mexico regional smoothhound shark TAC of 509.6 mt dw with a commercial quota of 336.4 mt dw. Implementing these science-based TACs and commercial quotas will ensure continued sustainable harvest of smoothhound sharks in the Atlantic and Gulf of Mexico regions and increase the likelihood of maintaining healthy smoothhound shark stocks in both regions. Additional details are provided below under the heading Changes from the Proposed Rule. Term and Condition (TC) 4 of the 2012 Shark BiOp addressed soak time and net check requirements for gillnet gear. In order to comply with TC 4, this final rule modifies the soak time and net check requirements based on the type of gillnet gear used in the Atlantic shark and smoothhound shark fisheries. NMFS has determined that current regulations meet the specifications for other TCs in the 2012 BiOp. This final rule will establish a soak time limit of 24 hours for sink gillnet gear and a 0.5 to 2 hour net check requirement for drift gillnet gear in the Atlantic shark and smoothhound shark fisheries. This requirement would not significantly change smoothhound shark fishing practices, since most smoothhound shark gillnet fishermen primarily use sink gillnet gear and those fishermen already use a soak time of 24 hours or less. This final rule also modifies current regulations related to the use of VMS by federal directed shark permit holders using gillnet gear. Before this rule, federal directed shark permit holders with gillnet gear on board were required to use VMS regardless of vessel location in order to simplify compliance and outreach for fishermen operating across multiple regions. This requirement was implemented as part of the 2003 Amendment 1 to the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks to ensure shark gillnet vessels were complying with the Atlantic Large Whale Take Reduction Plan (ALWTRP) time/area closures and observer VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 requirements (50 CFR 229.32). However, since implementation, it has become apparent that while some fishermen do fish in multiple regions, many do not fish in or even near the Southeast U.S. Monitoring Area. As such, this final rule will require federal directed shark permit holders with gillnet gear on board to use VMS only in the vicinity of the Southeast U.S. Monitoring Area, pursuant to ALWTRP requirements. Requirements to minimize large whale interactions would not change; rather, only the geographic area of the VMS requirement would change, consistent with the ALWTRP. This final rule also establishes an effective date for previously-adopted smoothhound shark management measures in Amendment 3 and the 2011 HMS Trawl Rule. The final rule implementing conservation and management measures in Amendment 3 published on June 1, 2010 (75 FR 30484) but delayed the effective date of the smoothhound shark management measures until approximately 2012 pending approval for the data collection measures under the Paperwork Reduction Act (PRA) by the Office of Management and Budget (OMB), to provide time for implementation of a permit requirement, to provide time for NMFS to complete a Biological Opinion under Section 7 of the Endangered Species Act (ESA), and to provide time for affected fishermen to change business practices, particularly as it related to keeping shark fins attached to the carcass through offloading. OMB approved the PRA data collection in May of 2011 and NMFS met informally with smoothhound shark fishermen along the east coast in the fall of 2010. In November 2011, NMFS published a rule (76 FR 70064, November 10, 2011) that indefinitely delayed the effective date for all smoothhound shark management measures in both Amendment 3 and in another rule, the 2011 Final Rule to Modify the Retention of Incidentally-Caught Highly Migratory Species in Atlantic Trawl Fisheries (76 FR 49368, August 10, 2011 (2011 HMS Trawl Rule)), to provide time for NMFS to consider the smooth dogfish-specific provisions in the SCA and for NMFS to finalize a Biological Opinion on the federal actions in Amendment 3, among other things. Previously-adopted management measures from Amendment 3 that will become effective on January 1, 2016, include: A research set-aside quota; an accountability measure (AM), which closes the fishery when smoothhound shark landings reach, or are expected to reach, 80 percent of the quota; a requirement for PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 a dealer permit to purchase smoothhound sharks; a requirement for dealers to report smoothhound shark purchases; a smoothhound permit requirement for commercial and recreational fishing and retention; a requirement for vessels fishing for smoothhound sharks to carry an observer, if selected; a requirement for vessels fishing for smoothhound sharks to comply with applicable Take Reduction Plans pursuant to the Marine Mammal Protection Act (MMPA); and a requirement for commercial vessels to sell catch only to Federally-permitted shark dealers. Management measures affecting smoothhound sharks in the HMS Trawl Rule will allow retention of smoothhound sharks caught incidentally with trawl gear, provided that the total smoothhound shark catch on board or offloaded does not exceed 25 percent of the total catch by weight. Finally, this rule makes administrative changes to the observer regulations. Currently, the Atlantic shark fishery observer program is administered by the Southeast Fisheries Science Center (SEFSC). However, a portion of the commercial smoothhound shark fishery occurs in the Northeast region in an area typically covered by observer programs administered out of the Northeast Fisheries Science Center (NEFSC). Since the fishery spans the geographic area of both the NEFSC and SEFSC, smoothhound shark observer regulations need to accommodate the administrative processes of both programs. The two regional science center observer program processes are slightly different. The SEFSC process is currently outlined in the 50 CFR part 635 regulations but the NEFSC process is not. Thus, this final rule implements changes to the observer regulations in 50 CFR part 635 to incorporate the relevant portions of the NEFSC observer regulations found at 50 CFR part 648. Response to Comments During the proposed rule stage, NMFS received approximately 500 written comments from fishermen, States, environmental groups, academia and scientists, and other interested parties. NMFS also received feedback from the HMS Advisory Panel; constituents who attended the two public hearings in October 2014 in Toms River, New Jersey, and Manteo, North Carolina; and constituents who attended the conference calls/webinars held on September 24 and November 4, 2014. Additionally, NMFS consulted with the New England, Mid-Atlantic, South Atlantic, Gulf of Mexico, and Caribbean Regional Fishery Management Councils, along with the Atlantic States and Gulf E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES States Marine Fisheries Commissions. A summary of the comments received on the proposed rule during the public comment period is provided below with NMFS’s responses. All written comments submitted during the comment period can be found at http://www.regulations.gov by searching for NOAA–NMFS–2014–0100. Implementation of the Smooth-Dogfish Specific Provisions of the Shark Conservation Act Comment 1: NMFS received comments in support of Alternative A1, which would not implement the smooth dogfish-specific measures in the Shark Conservation Act of 2010 and would require fins and tails of all smooth dogfish to remain naturally attached through offloading. Commenters felt that these exceptions to the U.S. ban on at-sea shark fin removal would jeopardize our nation’s reputation as a shark conservation champion, and hurt U.S. arguments in support of Regional Fishery Management Organizations’ adoption of fins attached requirements. Commenters also felt that the fins naturally attached method was widely recognized as the best practice for accurate data collection and enforcement of finning bans. Commenters felt that adopting a fins attached exception for smooth dogfish would undermine state bans on finning and would widen loopholes in certain state bans on the trade in shark fin products. Response: The Shark Conservation Act of 2010, which includes the smooth dogfish-specific exception, became Federal law upon Presidential signature on January 4, 2011. Thus, NMFS must implement the law in a manner that reflects Congressional intent. The Congressional provision clearly creates an exception that allows removal of smooth dogfish shark fins at sea under certain circumstances and did not leave the Agency discretion to forego implementation of the exception. Comment 2: NMFS received a comment stating that the 12 percent finto-carcass ratio included in the smooth dogfish-specific provision of the SCA was too high and should be lower. Response: The 12 percent fin-tocarcass ratio is explicitly included in the smooth dogfish-specific provision of the SCA. Thus, NMFS must implement the provision as mandated. Nevertheless, some data support that a 12 percent fin-to-carcass ratio may be a close approximation of the true ratio for smooth dogfish. In the Atlantic States Marine Fisheries Commission (ASMFC) Shark Board briefing materials prepared for a May 21, 2013 meeting, the States VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 of New Jersey and New Carolina provided analyses of smooth dogfish fin-to-carcass ratios using both landings data and direct measurements of processed sharks. Those analyses found a range of fin-to-carcass ratios from 7.5 percent to 13 percent, depending on the level of processing (e.g. whether the belly flaps were removed, whether the tail was retained). Comment 3: NMFS received a large volume of comments expressing concern that the smooth dogfish-specific provision of the Shark Conservation Act allows finning of sharks. These commenters asked NMFS not to implement this provision and many of the comments provided information about the negative ecological impacts of sharks finning. Response: The large volume of comments opposing finning of smooth dogfish appears to be based on a misunderstanding on this action. Finning, which is the removal of shark fins and disposal of the carcass at sea, has been prohibited in Atlantic U.S. shark fisheries since 1993, and will continue to be prohibited in all Atlantic shark fisheries. The exception in the Act allows for the removal of the fins at sea rather than requiring the sharks to be landed with their fins attached as the Act requires for other shark species. The fins and the carcasses still must be landed together. Sub-Alternatives—Issue 1: Catch Composition Comment 4: NMFS received several comments, including from the SAFMC, MAFMC, and the States of New Jersey, North Carolina and Maryland, opposing the proposed sub-alternative A2–1c that smooth dogfish must make up at least 75 percent of the retained catch (no other sharks can be retained). Commenters felt that the 75 percent catch composition would be difficult to enforce and burdensome for fishermen. Some felt that the 75 percent would lead to waste and discarding in cases where fishermen found that their catch percentages did not qualify them for the at-sea processing allowance. Others emphasized that the smoothhound fishery is a mixed fishery, and that fishermen needed more flexibility if the SCA exception were to have any utility. NMFS also received comments that the 75 percent catch composition was inconsistent with ASMFC requirements and that the new federal requirements might push fishermen into state waters where there are no catch composition requirements. Commenters felt that as a consequence, fishermen may avoid obtaining a federal smoothhound shark permit, leading to less data for federal PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 73131 mangers. NMFS received support from the MAFMC and the state of New Jersey for sub-alternative A2–1b that would require smooth dogfish make up at least 25 percent of the retained catch. NMFS also received some limited support for the 75 percent catch composition. Response: In the Draft EA and proposed rule, NMFS interpreted the phrase ‘‘fishing for smooth dogfish’’ to mean fishing with the object of commercially harvesting smooth dogfish, but also emphasized that the SCA had specified that the exception applies when an individual is fishing ‘‘for’’ smooth dogfish as opposed to fishing ‘‘for’’ other species and incidentally catching smooth dogfish or simply stating that it applies ‘‘when fishing.’’ We then preferred a subalternative that smoothhound sharks must make up 75 percent of the retained catch on board a vessel to constitute a trip fishing ‘‘for’’ smooth dogfish and stated that this would preclude fishermen on trips for other species but who incidentally catch smooth dogfish from removing smooth dogfish fins at sea. The catch composition threshold of 75 percent is used in other fisheries that interact with HMS (e.g., incidental swordfish catch in the squid trawl fishery) to distinguish between directed and incidental fisheries and NMFS felt this high level of retention was an appropriate way to identify those fishing ‘‘for’’ smooth dogfish. Based on public comments, however, it has become apparent that the 75 percent level used in other fisheries is not appropriate in the smooth dogfish fishery and does not accurately reflect fishing practices in that fishery. To verify the feedback from commenters, NMFS reviewed data on the mixed nature of the smoothhound shark fishery and how well catch composition reflects the fishery and discovered that, as asserted by the commenters, the smooth dogfish fishery is far more mixed than NMFS assumed in the proposed rule. As a result, implementing a 75 percent catch composition requirement would make the exception largely meaningless. Thus, while NMFS’ objective for the implementation of the smooth dogfishspecific provision of the SCA remains the same as described in the Draft EA, and NMFS still needs to give meaning to the phrase ‘‘fishing for smooth dogfish’’ as opposed to simply ‘‘fishing,’’ NMFS agrees with the majority of the commenters that a catch composition requirement of 25 percent is more appropriate. This is consistent with the smooth dogfish-specific provision in the SCA that limits the exception to those fishermen that are E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES 73132 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations fishing ‘‘for’’ smooth dogfish while acknowledging the need for enhanced flexibility in a mixed fishery. The reasons for the change include the four following factors, which were reflected in public comment on the proposed rule: • Sink gillnet gear, the predominant gear used in the directed smooth dogfish fishery, often catches other species along with the targeted species. If a fisherman retains other legal species in an amount greater than 25 percent of the total retained catch, it does not necessarily mean that effort was not being directed on smooth dogfish, it could simply mean that other species were encountered in a greater amount than anticipated. • Although a 75 percent catch composition is an appropriate indicator of target species in other HMS fisheries, such as the squid trawl fishery, it is not appropriate at this time in the smooth dogfish fishery. In the squid trawl fishery, swordfish caught in squid trawls can only be retained if at least 75 percent of the retained catch is squid, indicating that squid is the targeted fishery. In that fishery, the catch is predominantly squid but swordfish that are feeding on the squid are sometimes inadvertently caught. The smooth dogfish fishery is a more mixed fishery and the target species is often co-located with other species, resulting in less certainty of target species catch levels • When fishermen decide to remove fins from smooth dogfish while at sea, the fins are not removed at the end of the trip. Rather, the fins are removed shortly after the smooth dogfish is brought on board in order to maintain the highest quality product. This processing method negates the benefits of a high catch composition requirement. For example: If a fishermen is directing effort on smooth dogfish and removing the fins as the smooth dogfish are brought on board, that fishermen does not know what the final catch composition will be. The first part of the trip could be 100 percent smooth dogfish, but if the catch transitions to predominantly other species, the fishermen may have found that he no longer meets the high catch composition requirement. In that case, the fisherman has two options: To either discard all the smooth dogfish carcasses and fins that have been processed or discard the non-smooth dogfish catch in an amount that will meet the catch composition requirement. Either way, a high catch composition could lead to unnecessary regulatory discards. Although this last example could also pertain to the preferred 25 percent catch composition, the lower threshold VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 provides a greater amount of flexibility and reduces the instances of regulatory discards, consistent with National Standard 9. • Smooth dogfish, and the fishery that targets them, closely follow specific water temperature gradients. Fisherman intending to land primarily smooth dogfish may find their gear in suboptimal water temperatures leading to lower smooth dogfish catch despite the intention to directly target the species and resulting in a lower catch composition than expected. Comment 5: NMFS received comments that NMFS was interpreting the smooth dogfish-specific provisions in the SCA incorrectly because the provision does not specify its application to the directed or incidental smooth dogfish fishery and that limiting fishermen to a directed fishery would only serve to inflict financial hardships on fishermen. Response: The SCA does not explicitly state that it applies only to directed fisheries; however, the relevant SCA statutory text, (‘‘an individual engaged in commercial fishing for smooth dogfish (Mustelus canis)’’) included descriptive language such as ‘‘engaged in’’ and ‘‘for’’ that NMFS understood to be more limiting than if the statute had simply said ‘‘while fishing.’’ We thus interpreted ‘‘fishing for smooth dogfish’’ to limit the exception to those fishing primarily for smooth dogfish, as reflected by the 75 percent retention requirement. Had Congress intended to allow all trips to remove smooth dogfish fins at sea, this qualifying language and emphasis on fishing ‘‘for’’ smooth dogfish would not have been included. As explained in the previous response, the final rule’s lower percentage requirement for smooth dogfish catch composition (25 percent v. 75 percent) should address some of the concerns about the practicality of the proposed rule’s catch composition requirements in light of the very mixed nature of the fishery, while still ensuring that the exception is limited to those fishing ‘‘for’’ smooth dogfish. Comment 6: NMFS received comments, including from the SAFMC, MAFMC, NCDMR, and the States of New Jersey and Maryland opposing the ‘‘no other sharks on board’’ provision. The commenters stated that this provision would be burdensome for fishermen and would lead to unnecessary waste and discards of other valuable shark species since it is a mixed, variable fishery. Others noted that NMFS is interpreting the smooth dogfish-specific provisions of the SCA incorrectly because ‘‘no other sharks on board’’ is never mentioned in the statute PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 and that it is inconsistent with ASMFC requirements. Additionally, NMFS received comments stating that a large number of common thresher sharks are often caught with smooth dogfish and if these species had to be discarded, this would be wasteful and could lead to economic impacts to shark fishermen. Response: After considering public comment, NMFS has determined that it is more appropriate and consistent with the SCA to implement Sub-Alternative A2–1e, which allows other sharks to be retained when removing smooth dogfish fins at seas, provided those sharks are maintained in a condition where the fins and tail remain naturally attached to the carcass through landing. This measure is included in the new subalternative based on public comment and additional analyses, and in recognition that a prohibition on having other sharks on board would likely increase regulatory discards, contrary to National Standard 9. The smooth dogfish fishery is more mixed than previously thought, and other sharks, particularly spiny dogfish and common thresher sharks, make up a portion of the catch and contribute considerable revenue to fishermen participating in the smooth dogfish fishery. Under the new preferred sub-alternative, fishermen would not have to choose whether to land smooth dogfish with the fins removed or another species of shark. This is a change from the proposed rule, which would have prohibited retention of other sharks when removing the fins from smooth dogfish at sea. As proposed, a fisherman who wanted to remove fins of smooth dogfish at sea would have had to discard all non-smooth dogfish sharks even if they were dead and were otherwise legal to retain based on species, size, and permits. Alternatively, as proposed, a fisherman could decide to retain non-smooth dogfish sharks and discard any smooth dogfish carcasses and fins that had already been processed. In either situation, as proposed, dead discards would likely increase, given the mixed catches in the smooth dogfish fishery. Allowing other sharks onboard is consistent with the objective of Amendment 9 to narrowly focus the atsea fin removal allowance for the smooth dogfish fishery and would not undermine the enforcement of the limited smooth dogfish exception or impact the conservation of non-smooth dogfish sharks because smooth dogfish carcasses can be readily differentiated from other non-smoothhound shark carcasses by the presence of a pre-dorsal ridge. As a practical matter, smooth dogfish and other smoothhound species E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations are indistinguishable in the field. But geographically, smooth dogfish largely are the only smoothhound species found in the Atlantic, which is the only place where smooth dogfish fins can be removed, thus largely alleviating that identification concern. Under the new preferred sub-alternative, other sharks would be allowed on board while removing smooth dogfish fins at sea as long as the fins of non-smooth dogfish sharks remain naturally attached through offloading as currently required. NMFS will monitor all shark catches and discards and dead discards to ensure the conservation of all shark species and will take the additional action, as necessary, to address any conservation or management issues that may arise. mstockstill on DSK4VPTVN1PROD with RULES Sub-Alternatives—Issue 2: State Fishing Permit Comment 7: NMFS received several comments, including from the MAFMC and the States of New Jersey and Maryland, supporting the preferred SubAlternative A2–2b to require any state commercial fishing permit appropriate for the retention of smoothhound sharks when removing smooth dogfish fins at sea. Some of these comments noted the non-preferred sub-alternative, which would require a smoothhound-specific state commercial fishing permit, could require new regulations and may necessitate cost recovery of permit administration. Response: NMFS agrees that requiring a smoothhound-specific state fishing permit could be burdensome to states and fishermen. In the Draft EA and proposed rule, NMFS asked for comment on this issue, particularly from the states that would need to develop and administer a smoothhoundspecific permit. The states that commented on this issue were unanimously opposed to a smoothhound-specific permit and favored the preferred Sub-Alternative A2–2b. For these reasons, NMFS will implement Sub-Alternative A2–2b as proposed. Sub-Alternatives—Issue 3: Geographic Applicability Comment 8: NMFS received comments, including from the MAFMC and the State of Florida, in support of the preferred Sub-Alternative A2–3b to apply the exception for smooth dogfish along the Atlantic Coast and not to Florida’s coast in the Gulf of Mexico. Conversely, NMFS also received a comment stating that the exception should be applicable in the Gulf of Mexico so that the historical boundaries between the Gulf and South Atlantic VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 Councils are honored and the State of Florida can manage the fishery in a balanced way. Response: As a practical matter, smooth dogfish and other smoothhound species are indistinguishable in the field. The best available scientific information indicates that smooth dogfish are the predominant smoothhound shark species along the Atlantic coast (only a handful of Florida smoothhound have ever been recorded in the Atlantic and those have been near southern Florida). In the Gulf of Mexico, however, there are at least three different smoothhound species, with no practical way to readily distinguish among them. By limiting the exception to the Atlantic region, as specified at § 635.27(b)(1), this sub-alternative will ensure that the exception only applies where the population is almost entirely smooth dogfish, reducing identification problems and inadvertent finning violations. Furthermore, the State of Florida found the preferred subalternative limiting the exception to the Atlantic to be consistent with the Florida Coastal Management Program. Commercial Quota Adjustment for the Smoothhound Shark Fishery Comment 9: Multiple commenters, including the SAFMC, the States of Maryland, New Jersey, Georgia, and the Commonwealth of Virginia, suggested that none of the landings-based methodologies should be used to establish a smoothhound shark quota. Instead, NMFS should base the quota on the SEDAR 39 smoothhound shark stock assessment that was underway at that time, and which was proposed as an alternative, although the results had not yet been finalized at the time of proposed rule publication. NMFS also received comments opposing the preferred alternative B3, establishing a smoothhound quota equal to the maximum annual landings from 2004– 2013 plus two standard deviations because some commenters thought this quota was too high and seemed contrary to a risk averse approach. Response: NMFS agrees that it is preferable to establish scientificallybased quotas using results from the SEDAR 39 stock assessments. Since publication of the proposed rule, the SEDAR 39 stock assessments have been completed. Based on the availability of the stock assessment results and public comments, NMFS no longer prefers the alternative to establish a landings-based quota and now is basing the quotas on the results of the stock assessments. Thus, NMFS is establishing a smoothhound shark TAC of 1,430.6 mt dw and a commercial quota of 1,201.7 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 73133 mt dw in the Atlantic region, and a TAC of 509.6 mt dw and commercial quota of 336.4 mt dw in the Gulf of Mexico region, based on results of SEDAR 39. Section 2 of the Final EA provides a summary of the calculations used to determine these quotas. Comment 10: NMFS received a comment asking NMFS not to wait until the stock assessment was completed and to implement Alternative B1, the smoothhound quota of 715.5 mt dw established in Amendment 3 to the 2006 Consolidated HMS FMP. Response: NMFS recognizes the benefits of establishing a quota to limit mortality in the commercial fisheries. However, based on the timing of both this action and the SEDAR 39 stock assessments, NMFS determined that establishing scientifically-based quotas using results of the stock assessments outweigh benefits of implementing a landings-based quota. Since the stock assessments are now available, NMFS is establishing quotas based on those stock assessments. Biological Opinion Implementation Comment 11: NMFS received support for the preferred alternative C4 to establish a 24-hour soak time limit for sink gillnets and a 0.5 to 2 hour net check requirement for drift gillnet gear. The MAFMC and State of New Jersey also expressed support for the preferred alternative but asked that the definitions of sink and drift gillnets be clarified so that a sink gillnet cannot be mistaken for a net that is drifting in the water column. The State of Maryland expressed support for alternative C3 (24hour soak time for smoothhound permit holders) stating that net checks are not enforceable. NMFS also received comments suggesting that gillnet fishermen should be required to do both net checks and limit soak time to 24 hours. Other commenters asked NMFS to consider a reduced soak time because they felt that 24 hours was too long and would not reduce the risk of large whale interactions. Response: NMFS agrees that a 24-hour soak time limit for sink gillnets and a 0.5 to 2 hour net check requirement for drift gillnet gear are appropriate ways to implement the Term and Condition 4 of the 2012 Shark BiOp. NMFS also agrees that the definitions of sink and drift gillnet need to be clear so as not to confuse fishery participants and enforcement officials. As detailed in the Final EA, most smoothhound shark gillnet fishermen will be required to limit soak times to 24 hours since they primarily use sink gillnet gear. This requirement will not significantly change smoothhound shark fishing E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES 73134 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations practices. With regard to other Atlantic shark fishermen, fishermen who use sink gillnet gear will be required to limit soak times to 24 hours and those that use drift gillnets will be required to perform net checks at least every 2 hours. Currently, all Atlantic shark fishermen that use gillnet gear to fish for or who are in possession of any large coastal, small coastal, or pelagic shark, regardless of gillnet type, are required to perform net checks at least every 2 hours (see § 635.21(e)(3)(v)). During the net checks, fishermen are required to look for and remove any sea turtles, marine mammals, or smalltooth sawfish. In the 2012 Shark BiOp, the requirement to use either net checks or the 24-hour set limitation was determined to ensure that any incidentally taken ESA-listed species are detected and released in a timely manner, reducing the likelihood of mortality. As such, NMFS has determined that this alternative will likely have short and long-term minor beneficial ecological impacts on protected resources because it will implement one of the Terms and Conditions of the 2012 Shark BiOp to minimize impacts on protected resources. Because this alternative complies with the 2012 Shark BiOp, has beneficial ecological impacts to protected species, and allows all smoothhound shark gillnet fishermen to continue current fishing practices, NMFS will implement soak time limits for sink gillnets and net checks for drift gillnets, as proposed, in the final rule. Comment 12: NMFS received a comment stating that NMFS has not received authorization of the incidental take of endangered large whales that may result due to the operation of the fishery. The comment stated that without incidental take of endangered whales authorized under both the MMPA and ESA, federal management violates those laws. The commenter stated that NMFS must acquire take authorization under the MMPA section 101(a)(5)(E) for the expected whale takes associated with the smoothhound fishery and that NMFS must delay Amendment 9 until completion of a negligible impact analysis for North Atlantic right whale, humpback whale and fin whale. NMFS also received comments stating that (1) since the completion of the BiOp, critical habitat has been designated for loggerhead sea turtles, which triggers the requirement to reinitiate consultation in the shark fishery, and (2) the Draft EA fails to discuss effects of the fishery on loggerhead critical habitat. Response: As required by section 7(a)(2) of the ESA, the HMS Management Division of NMFS Office of VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 Sustainable Fisheries consulted with the NMFS Protected Resources Division (PRD) over proposed Atlantic shark fishery management measures in December 2009. That consultation was completed in 2012, and the Shark BiOp was issued in December 2012. The Biological Opinion concluded that the actions as proposed—including the operation of the smoothhound fishery— were not likely to jeopardize the continued existence of Atlantic sturgeon, smalltooth sawfish or any species of ESA-listed large whales or sea turtles. Section 9 and regulations implementing section 4(d) of the ESA prohibit the ‘‘take’’ or incidental take of listed species without an exemption. Under the terms of Section 7(b)(4) and Section 7(o)(2), otherwise prohibited take that is incidental to and not intended as part of the agency action may be permitted if it complies with reasonable and prudent measures (RPMs) and terms and conditions of an incidental take statement (ITS). Two RPMs were included in the 2012 Shark BiOp to minimize the effects of the action on sea turtles, smalltooth sawfish, and Atlantic sturgeon by the smoothhound and Atlantic shark fisheries and to monitor the level of incidental take: (1) Minimize the Potential Effects to Sea Turtles, Smalltooth Sawfish, Atlantic Sturgeon and Marine Mammals, and (2) Monitor the Frequency and Magnitude of Incidental Take. One remaining term and condition will be implemented in this final rule and will require gillnet fishermen to conduct net checks and limit gillnet soak times mitigating or reducing interactions with protected species. Since finalizing the 2012 BiOp, NMFS issued a final determination to list four separate DPSs of the scalloped hammerhead shark (Sphyrna lewini) under the ESA (79 FR 38214, July 3, 2014). The DPSs are Central and Southwest Atlantic, Indo-West Pacific, Eastern Atlantic, and Eastern Pacific. The Eastern Atlantic and Eastern Pacific DPSs are listed as endangered, and the Central and Southwest Atlantic and the Indo-West Pacific DPSs are listed as threatened. NMFS determined that each of the DPSs was significant and distinct based on genetic, behavioral, and physical factors, and in some cases, differences in the control of exploitation of the species across international boundaries. On August 27, 2014, NMFS published a final rule to list the following 20 coral species as threatened: Five in the Caribbean, including Florida and the Gulf of Mexico (Dendrogyra cylindrus, Orbicella annularis, Orbicella PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 faveolata, Orbicella franksi, and Mycetophyllia ferox); and 15 in the Indo-Pacific (Acropora globiceps, Acropora jacquelineae, Acropora lokani, Acropora pharaonis, Acropora retusa, Acropora rudis, Acropora speciosa, Acropora tenella, Anacropora spinosa, Euphyllia paradivisa, Isopora crateriformis, Montipora australiensis, Pavona diffluens, Porites napopora, and Seriatopora aculeata). Two Caribbean species currently listed as threatened (Acropora cervicornis and Acropora palmata) still warranted listing as threatened. The Central and Southwest Atlantic DPS of scalloped hammerhead shark and the seven Caribbean species of coral occur within the boundary of Atlantic HMS commercial and recreational fisheries. On October 30, 2014, based on the new listings, NMFS requested reinitiation of ESA section 7 consultation on the continued operation and use of HMS gear types (bandit gear, bottom longline, buoy gear, handline, and rod and reel) and associated fisheries management actions in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS has preliminarily determined that the ongoing operation of the fisheries is consistent with existing biological opinions and is not likely to jeopardize the continued existence of the Central and Southwest DPS of scalloped hammerhead sharks or the threatened coral species or result in an irreversible or irretrievable commitment of resources which would foreclose formulation or implementation of any reasonable and prudent alternative measures for these species. Regarding marine mammals, the final 2014 MMPA List of Fisheries classified the southeastern Atlantic shark gillnet fishery as Category II (occasional serious injuries and mortalities). The southeastern Mid-Atlantic and Gulf of Mexico shark BLL shark fishery is classified as Category III (remote likelihood or no known serious injuries or mortalities). Commercial passenger fishing vessel (charter/headboat) fisheries are subject to Section 118 and are listed as a Category III fishery. This action would not significantly increase fishing effort rates, levels, or locations or fishing mortality. The preferred alternatives would not increase effort because the smoothhound quotas are based on the most recent smoothhound shark stock assessments (SEDAR 39). In addition, final management measures are not expected to alter interactions with protected species. E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations Atlantic Shark Gillnet Vessel Monitoring System Requirements Comment 13: NMFS received support for the preferred alternative of requiring directed shark permit holders with gillnet gear on board to use VMS only in the Southeast U.S. Monitoring Area, including from the States of North Carolina, New Jersey, and Maryland, and the MAFMC. NMFS also received comments preferring the status quo stating that VMS should be required regardless of where the vessel is fishing. Response: Currently, under Federal HMS regulations, Atlantic shark gillnet fishermen are required to use VMS at certain times of the year regardless of where they are fishing. However, per 50 CFR 229.32(h)(2)(i), the implementing regulations for the Atlantic Large Whale Take Reduction Plan (ALWTRP), Atlantic shark gillnet fishermen are only required to have VMS if they are fishing in the Southeast U.S. Monitoring Area. Because NMFS has determined that VMS is not necessary for Atlantic shark gillnet fishermen in the other ALWTRP restricted areas through the implementation of the ALWTRP regulations, NMFS believes it is best to maintain consistency with these regulations. Maintaining consistency between the Atlantic HMS and ALWTRP regulations will reduce confusion, help fishermen comply with these regulations more easily, and will avoid unnecessary economic burdens on shark fishery participants. mstockstill on DSK4VPTVN1PROD with RULES Previously Adopted Smoothhound Shark Measures in Amendment 3 and the HMS Trawl Rule Comment 14: NMFS received a comment stating that smoothhound sharks should be managed by the Regional Fishery Management Councils in cooperation with ASMFC. Response: As detailed in Amendment 3 to the 2006 Consolidated Atlantic HMS FMP, smoothhound sharks are ‘‘oceanic sharks’’ as defined by the Magnuson-Stevens Act and are subject to management by the Secretary of Commerce under that Act. Please refer to Amendment 3 to the 2006 Consolidated Atlantic HMS FMP for a detailed explanation of why smoothhound sharks are appropriately subject to Federal management. Comment 15: NMFS received a comment stating that the Federal smoothhound permit could trigger an increase in directed smooth dogfish effort. A comment was also received suggesting that the fishery, once permitted, should not be open access and that a control date should be set to discourage new entrants. VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 Response: Based on the nature of the fishery, which is labor-intensive and high-volume, additional management burdens such as permit requirements are unlikely to result in an increase in effort. In fact, a slight reduction is more likely. Since effort increases are not expected, NMFS does not believe that introducing a limited access permit in this fishery is necessary at this time. Nevertheless, this action will implement scientifically-based quotas and landings will be closely monitored to ensure that total mortality does not exceed scientifically-determined limits. If, in fact, directed smooth dogfish effort increases, protections will be in place to ensure that fishing pressure does not exceed sustainable levels while NMFS considers if additional measures are necessary. Comment 16: NMFS received a comment from the State of Maryland stating that they are concerned about the measure to close the fishery when 80 percent of the smoothhound quota has been caught. They feel that this measure may limit access to some states later in the year. The State of Maryland recommends working with the other Atlantic states to close each state’s smoothhound fishery once 80 percent of the state’s allocation has been harvested. Response: In all quota-managed Atlantic shark fisheries, NMFS closes the applicable fishery when landings reach, or are expected to reach, 80 percent of the quota. This measure mitigates for possible late reporting, which could result in quota overharvests. Based on the success of this measure in the other shark fisheries, NMFS prefers to implement the 80percent accountability measure (AM) in the smoothhound shark fisheries as finalized in Amendment 3 to the 2006 Consolidated HMS FMP rather than risk exceeding the quotas in the smoothhound fisheries. Through Addendum II to the Coastal Sharks Interstate FMP, the ASMFC instituted state shares of the Federal smoothhound shark quota. Although this system was finalized in May 2013 before the Federal smoothhound shark quota was effective, Addendum II proactively divided the quota among several of the Atlantic states in an amount that would total 100 percent of the Federal quota. This agreement among the Atlantic states to limit each state’s harvest does not impact nor influence the Federal quota. Although NMFS recognizes that closing the fishery when landings reach, or are expected to reach, 80 percent of the quota could prevent some states from harvesting their full state share of the quota per the ASMFC plan, the measure PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 73135 is an important and effective way to ensure that the sustainability of the smoothhound shark fishery is not jeopardized by overharvests. Comment 17: NMFS received a comment stating that NMFS should not implement the smoothhound retention allowance from the 2011 HMS Trawl Rule because the increased retention will lead to increased fishing mortality and this mortality will not be adequately quantified and counted against the quota. There are no reporting requirements with open access permits and fisheries tend to underreport incidental catches. Response: Since January 1, 2013, all commercial landings of Atlantic HMS, regardless of gear type or permit, are required to be reported on a weekly basis. Through these weekly reports, NMFS monitors commercial landings of Atlantic HMS, which will include smoothhound sharks upon implementation of this action. Trawl gear and open access permits do not present unique reporting concerns. Allowing smoothhound sharks to be landed by fishermen who use trawl gear or possess an open access permit does not raise unique concerns about the sustainability of the fishery. General Comments Comment 18: NMFS received comments that Amendment 9 is too narrowly focused on smoothhound sharks and should instead consider all species managed under the 2006 Consolidated HMS FMP. The commenter asserts that a multispecies management approach is preferable. Furthermore, the commenter noted that NMFS’ decision to include all HMS in a single, consolidated FMP effectively categorizes all HMS fisheries as a single ‘‘fishery.’’ Thus, all National Standards (NS) under the Magnuson-Stevens Act must be considered in the context of all HMS, not just smoothhound sharks and Atlantic sharks. Specifically, the commenter suggested that NS 3 (‘‘To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination’’) requires NMFS to optimize access and management of all HMS, not just smoothhound sharks and Atlantic sharks. Additionally, the commenter felt that NS 1, which mandates achieving optimum yield from each fishery, should be applied across all HMS since all HMS should be categorized as one single fishery. Response: While a multispecies management approach is advantageous in some instances, NMFS disagrees that E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES 73136 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations Amendment 9 should broadly consider all HMS (including tunas, billfish, and swordfish) as a single fishery. In 2006, NMFS merged all Atlantic HMS management into a single, consolidated FMP. In the 2006 Consolidated Atlantic HMS FMP, NMFS noted that the interrelated nature of HMS fisheries and the need to consider management actions together necessitated merging the two existing HMS FMPs into one FMP. In addition, NMFS identified some adverse ramifications stemming from separation of the plans, including unnecessary administrative redundancy and complexity, loss of efficiency, and public confusion over the management process. It is important to note that NMFS consolidated management of all HMS under one FMP because of the interrelated nature of some of the fisheries and to streamline administration, not because all HMS constitute a single fishery. As appropriate, NMFS analyzes the impacts of management actions for each HMS fishery and optimizes management for all affected HMS fisheries. The Environmental Assessment appropriately considers any effects on the environment, including effects on other fish stocks or fisheries that may result from the actions in Amendment 9. The analyses show that the actions considered in Amendment 9 are unlikely to affect non-smoothhound shark fisheries or Atlantic shark fisheries. The management objectives are narrowly focused on smoothhound sharks, smooth dogfish, and/or Atlantic sharks caught in gillnet gear, the predominant gear type used in the directed smoothhound shark fishery. None of the fisheries considered in this action are likely to encounter other nonsmoothhound shark or Atlantic shark in large numbers. Billfish, swordfish, tunas, and pelagic sharks are unlikely to co-occur with the smoothhound sharks nor can swordfish or tunas be retained if caught in gillnet gear. The one exception is the measure to establish an effective date for the 2011 HMS Trawl Rule. Trawl gear does have the potential to interact with a variety of HMS, including smoothhound sharks, Atlantic sharks, and swordfish. The 2011 HMS Trawl rule, recognizing the potential interaction between trawl gear and some HMS, considered an allowance for the limited retention of incidentally caught swordfish and smoothhound sharks. As such, that action considered impacts and explicitly optimized access to affected HMS. With respect to consistency with NS 1 and 3, each HMS management action considers all National Standards in the context of the VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 affected HMS. For detailed information about Amendment 9’s consistency with National Standards, please see Section 10 of the Final EA. Changes From the Proposed Rule (79 FR 46217, August 7, 2014) NMFS made several changes from the proposed rule, as described below. 1. Catch Composition and ‘‘No Other Sharks’’ Requirements for Removing Smooth Dogfish Fins at Sea (§ 635.30(c)(5)(iii)). The SCA has provisions related to the removal of smooth dogfish fins while at sea that apply when an individual is fishing ‘‘for’’ smooth dogfish. Thus, the proposed rule considered subalternatives to apply the exception only to those fishing with the object of commercially harvesting smooth dogfish by focusing on catch composition. This final rule is not implementing the preferred catch composition subalternative (75 percent of retained catch must be smooth dogfish), but another sub-alternative (25 percent smooth dogfish) that had been discussed in the proposed rule and analyzed in the draft EA. NMFS received numerous public comments that the 75 percent catch composition requirement did not adequately reflect the mixed nature of the smooth dogfish fishery and would lead to excessive dead discards. Based on this public comment, NMFS reconsidered the 75 percent smooth dogfish requirement, and determined that it does not properly reflect fishing ‘‘for’’ smooth dogfish. According to public comment, fishermen that fish for smooth dogfish often encounter and retain other species of fish. NMFS verified this by evaluating data from vessel trip reports (VTR). On trips that landed smooth dogfish caught in sink gillnet gear between 2003 and 2014, smooth dogfish only made up 36 percent of the total retained catch while other species such as croaker, bluefish, monkfish, and spiny dogfish made up the remainder. See Final EA at Section 3.4.1 for further detail. If NMFS retained the 75 percent requirement, then this could result in dead discards as well as lost revenues from those species. The 25 percent requirement adopted in the final rule better reflects fishing ‘‘for’’ smooth dogfish, and is within the range of alternatives considered and analyzed in the proposed rule. Related to the catch composition change and concern about discards, this final rule also makes a change from the proposed rule by allowing retention of other shark species provided that their fins remain naturally attached to the carcass through offloading. This PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 measure is included based on public comment and additional analyses and recognizing that a prohibition on having other sharks on board would likely increase regulatory discards. Specifically, additional analyses indicate that the smooth dogfish fishery is more mixed than previously thought, and that other sharks, particularly spiny dogfish and common thresher sharks, make up a portion of the catch and revenue for fishermen also fishing for smooth dogfish. Given that fishermen process smooth dogfish as they are brought on board, including removing the fins where allowable, the proposed rule approach would have forced fishermen to choose whether to land smooth dogfish with the fins removed (and discard the other species) or land the other species of shark with the fins attached and discard the smooth dogfish with their fins removed at sea. As proposed, a fisherman who wanted to remove smooth dogfish fins at sea would not have been able to retain nonsmooth dogfish sharks even if those sharks were dead and otherwise legally retainable based on species, size, and permits. In either situation, as proposed, dead discards would likely have increased given the mixed catches in the smooth dogfish fishery. Thus, other sharks will be allowed on board when smooth dogfish fins have been removed at sea as long as the fins of the nonsmooth dogfish sharks remain naturally attached through offloading, as is currently required. Allowing other sharks on board should not raise enforcement concerns or impact the conservation of nonsmooth dogfish sharks because smooth dogfish carcasses can be readily differentiated from other shark carcasses by the presence of a pre-dorsal ridge. While other ‘‘ridgeback sharks’’ have an interdorsal ridge, smooth dogfish are the only shark species in the Atlantic that have a pre-dorsal ridge. We will work with the Office of Law Enforcement to ensure that they are aware of this identifying feature and will update outreach information for shark identification including relevant workshops as appropriate to make permitted shark fishermen and dealers aware of the distinction. NMFS will also continue to monitor all shark catches and discards and take additional action, if necessary to address non-compliance. The changes in this final rule are consistent with the conservation and management objectives of the Magnuson-Stevens Act and Amendment 9 and the SCA. These changes will not impact the conservation of smooth dogfish or other sharks because landings of these species, regardless of catch E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations composition percentage, will be capped at or under the commercial quota through AMs and/or closures. These changes thus will not have an effect on the status of these stocks, nor are other adverse environmental impacts anticipated. They will also provide for a flexible, profitable, and sustainable smooth dogfish fishery. 2. Atlantic and Gulf of Mexico Regional Commercial Smoothhound Shark Quotas (§ 635.27(b)(1)(xi)). NMFS proposed a smoothhound shark quota equal to the maximum annual landings from 2004–2013 plus two standard deviations (1,739.9 mt dw) using commercial landings data in the absence of a stock assessment and methodology outlined in Amendment 3. At that time, NMFS anticipated that the SEDAR 39 stock assessment for smoothhound sharks would be completed in 2014. Consequently, the proposed rule discussed, and the draft EA analyzed, a quota alternative that would ‘‘implement a TAC and smoothhound shark quota(s) consistent with the results of the 2014 smoothhound shark stock assessment if the results become available before publication of the final rule for this action.’’ (See Alternative B4 in the Draft EA for Amendment 9). The proposed rule also stated that ‘‘[t]he 2014 smoothhound shark stock assessment could separate one or more of the stocks into regional stocks between the Atlantic and Gulf of Mexico,’’ and that for the purposes of the environmental analyses, ‘‘NMFS assumes one overarching quota but these alternatives and analyses could apply to multiple regions as well.’’ During the public comment period on the proposed rule and draft EA, commenters expressed concern about implementing a smoothhound shark commercial quota based on historical landings, and requested that NMFS wait for SEDAR 39 to be completed. Based on these comments, in this final rule, NMFS is implementing region-specific commercial quotas based on SEDAR 39. Specifically, this final rule establishes an overall TAC of 1,940.2 mt implemented as follows: An Atlantic regional smoothhound shark TAC of 1,430.6 mt dw with a commercial quota of 1,201.7 mt dw, and a Gulf of Mexico regional smoothhound shark TAC of 509.6 mt dw with a commercial quota of 336.4 mt dw. Although the TAC identified in the final rule is inclusive of sources of mortality other than a commercial quota (which is thus necessarily less than the TAC), the overall TAC in the final rule is only 201 mt more than the 1,739.9 mt dw commercial quota from the proposed rule. Thus, establishing a TAC of this VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 level does not raise concerns about requiring additional environmental analyses or additional regulatory action, which may have been the case if the stock assessment had identified a significantly greater allowable TAC (and resultant commercial quota) than those anticipated and analyzed in the proposed rule. The proposed rule presented and analyzed an alternative that anticipated the stock assessment would determine that ‘‘the commercial smoothhound shark quota should be set at approximately equal to or greater than 1,739.9 mt dw.’’ As acknowledged in the EA, even with a higher quota, effort is likely to remain the same relative to current effort. Thus the ecological, economic and social impacts of quota establishing a quota greater than 1,739.9 mt would be within the range analyzed in the Draft EA. In the final rule, the combined regional commercial quotas (1,538.1 mt) are twelve percent less than the original proposed overall quota (1,739.9 mt) but higher than recent annual commercial landings. Both the commercial quotas and the overall TAC in this final rule are within the range of actions considered in the proposed rule and analyzed in the draft EA. With regard to the regional quota approach, in the Draft EA, NMFS acknowledged that the stock could be split between two regions based on the SEDAR 39 stock assessments and that the analyses performed for one overarching quota could apply to multiple regions. Based on information supplied during the Data Workshop for SEDAR 39, including tagging data, the stock assessment scientists decided to split smoothhound sharks into two regional stocks, with smooth dogfish in the Atlantic and smooth dogfish, Florida smoothhound, and Gulf smoothhound in the Gulf of Mexico. This regional split, however, does not affect the impact analyses detailed in the Draft EA under Alternative B4, scenario 4. As noted in Section 3.4 of the Draft EA and as confirmed in the SEDAR 39 stock assessments, the smoothhound shark fishery primarily occurs in the MidAtlantic region and is composed entirely of smooth dogfish catch. In the Gulf of Mexico region, only a very small, negligible, number of commercial landings occur and there is no commercial fishery. Thus, the Draft EA Alternative B4 quota analyses were informed entirely by data from the Atlantic region including catch location, price data, landings data, and fishery operations. If NMFS applied the single over-arching quota analyses to regional smoothhound shark quotas at the Draft stage, there would have been no PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 73137 information available for the Gulf of Mexico and, with no commercial fishery in that region, a finding of neutral impact. In the Atlantic region where the fishery is located, all impacts detailed in the Draft EA would apply because all data, including catch location, price data, landings data, and fishery operations, came from the Atlantic. Furthermore, the Atlantic smoothhound shark stock assessment would not have resulted in any new impacts because the assessment found current harvest levels and effort are sustainable with no changes required. In summary, the impact analyses detailed in the Draft EA under Alternative B4, scenario 4 are equally applicable to two regional quotas as to one over-arching quota. The changes in this final rule are consistent with the conservation and management objectives of the Magnuson-Stevens Act and Amendment 9 and based on the best scientific information available. Implementing TACs based on the stock assessment results would ensure continued sustainable harvest of smoothhound sharks in the Atlantic and Gulf of Mexico regions and increase the likelihood of maintaining healthy smoothhound shark stocks in both regions. 3. Administrative changes (§§ 635.2, 635.7(g)). NMFS is making minor clarifications to the drift and sink gillnet definitions at § 635.2 to indicate that drift gillnets typically are ‘‘floating’’ in the water column and that sink gillnets are fished on or near the ‘‘ocean’’ bottom and can have weights ‘‘and/or’’ anchors. Additionally, NMFS is changing the administrative processes by which vessels are selected for at-sea observer coverage at § 635.7(g). The changes were made, in part, based on consultation with the Northeast and Southeast Observer Programs so that smoothhound shark observer selection is consistent with both programs. The administrative changes to this section should not have any practical effect; rather, they will ensure that the selection processes currently in place may continue. 4. Administrative Additions (§ 635.19(d)). NMFS is adding language to § 635.19(d) to indicate that trawl gear is an authorized gear for the capture and retention of smoothhound sharks subject to the restrictions specified in § 635.24(a)(7). Regulatory text to authorize retention of smoothhound sharks caught in trawl gear was added to other sections of § 635, including § 635.24(a)(7), and was discussed in the proposed rule but was inadvertently omitted from this part of the regulatory text itself. No substantive changes will occur as a result. E:\FR\FM\24NOR1.SGM 24NOR1 73138 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations Commercial Fishing Season Notification Pursuant to the measures being implemented in this final rule, the 2016 base quotas for smoothhound sharks in the Atlantic and Gulf of Mexico regions would be 1,201.7 mt dw and 336.4 mt dw, respectively. The fishing season for the smoothhound shark fishery will open on January 1, 2016. mstockstill on DSK4VPTVN1PROD with RULES Classification The AA has determined that this final rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its amendments, the Magnuson-Stevens Act, and other applicable law. This final rule has been determined to be not significant for purposes of Executive Order 12866. A Final Regulatory Flexibility Analysis (FRFA) was prepared for this rule. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), and a summary of the analyses completed to support the action. The full FRFA and analysis of economic and ecological impacts are available from NMFS (see ADDRESSES). A summary of the FRFA follows. Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires a succinct statement of the need for and objectives of the rule. Chapter 1 of the Final EA and the final rule fully describe the need for and objectives of this final rule. The purpose of this final rulemaking, consistent with the Magnuson-Stevens Act, the ESA, and the MMPA, and the 2006 Consolidated HMS FMP and its amendments, is to provide for the sustainable management of smoothhound sharks and Atlantic shark species. The management objectives are to achieve the following: Implement the smooth dogfish-specific provisions of the SCA; implement smoothhound shark quotas based on the results of SEDAR 39; implement Term and Condition 4 of the 2012 Shark BiOp related to gillnet impacts on ESA-listed species; and revise Atlantic shark gillnet VMS regulations in compliance with the ALWTRP, per the MMPA. Section 604(a)(2) of the RFA requires a summary of the significant issues raised by the public comments in response to the IRFA and a summary of the assessment of the Agency of such issues, and a statement of any changes made in the rule as a result of such comments. NMFS received many comments on the proposed rule and the Draft EA during the public comment period. A summary of these comments and the Agency’s responses, including changes as a result of public comment, are included above. NMFS did not VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 receive comments specifically on the IRFA. Section 604(a)(4) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. The small business size standard for Finfish Fishing is $ 20.5 million, for Shellfish Fishing is $5.5 million, and for Other Marine Fishing is $7.5 million. See 79 FR 33647 (June 24, 2014). Under any of these standards, all Atlantic HMS permit holders subject to this rulemaking would be considered small entities. NMFS does not have exact numbers on affected commercial fishermen. The smoothhound shark commercial permit has not yet been established, so NMFS does not know how many smoothhound shark fishermen will be impacted. An annual average of 169 vessels reported retaining smooth dogfish through VTR from 2003–2014. This is NMFS’ best estimate of affected smoothhound shark fishermen. Additionally, while the retention of sharks in Federal waters requires one of two limited access commercial shark permits, these permits do not specific gear type, including gillnets. For this reason, NMFS does not know the exact number of affected shark gillnet fishermen. As of May 21, 2015, there are 208 directed shark and 253 incidental shark permit holders. Logbook records indicate that there are usually about 18 Atlantic shark directed permit holders that use gillnet gear in any year. However, the universe of directed permit holders using gillnet gear can change from year to year and could include anyone who holds an Atlantic shark directed permit. As of May 21, 2015, there are 97 Atlantic shark dealers. These dealers could be affected by these measures to varying degrees. Not all of these dealers purchase smoothhound sharks and those that do are concentrated in the Mid-Atlantic region. NMFS will know more about the number of affected dealers when smoothhound reporting requirements become effective. Similarly, not all of these dealers purchase Atlantic sharks caught with gillnet gear. The number is likely low and is concentrated in Florida and the Gulf of Mexico. Section 604(a)(5) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. The Federal commercial smoothhound shark permit requirement analyzed in Amendment 3 will become effective upon the effective date of this rule. NMFS submitted a PRA change request to The Office of Management and Budget (OMB) to add this permit to the existing HMS permit PRA package PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 (OMB control number 0648–0327). OMB subsequently approved the change request to add the Federal commercial smoothhound shark permit to the HMS permit PRA package in May 2011. In November 2015, NMFS submitted a revision to transfer the previously approved commercial smoothhound shark permit from the HMS permit PRA package (OMB Control Number 0648– 0327) to the Southeast Regional Office (SERO) permit PRA package (OMB Control Number 0648–0205). That request is still pending approval. Once OMB approves the request, NMFS will issue a notice in the Federal Register announcing the approval of the information collection requirements and the availability of applications for the commercial smoothhound shark permit. This final rule contains a collection-ofinformation requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under OMB Control number 0648–0372. Public reporting burden will be reduced under the modified VMS requirements under this final rule. The burden estimate burden will be reduced by this rule, but the changes will be requested as part of the 2016 extension, at which time the estimate of the burden change will be more accurate. The RFA requires a description of the steps the Agency has taken to minimize any significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and the reason that each one of the other significant alternatives to the rule considered by the Agency that affect small entities was rejected. These impacts are discussed below and in the FRFA for Amendment 9. Additionally, the RFA (5 U.S.C. 603 (c)(1)–(4)) lists four general categories of ‘‘significant’’ alternatives that could assist an agency in the development of significant alternatives. These categories of alternatives are: Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; use of performance rather than design standards; and, exemptions from coverage of the rule for small entities. In order to meet the objectives of this rule, consistent with Magnuson-Stevens Act and ESA, we cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES considered small entities. Thus, there are no alternatives discussed that fall under the first 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 rulemaking and provided the rationale for identifying the preferred alternative to achieve the desired objective. The alternatives considered and analyzed are described below. The FRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the final action on vessels. Alternatives To Implement the Smooth Dogfish-Specific Provisions of the Shark Conservation Act of 2010 With regard to the implementation of the SCA, NMFS considered two alternatives. Alternative A1, which would not implement the smooth dogfish-specific provisions of the SCA and would instead implement the finsattached requirement finalized in Amendment 3, and Alternative A2, which would implement the smooth dogfish-specific provisions of the SCA and has sub-alternatives that address the specific elements of the of the smooth dogfish-specific provisions. Alternative A1 would not implement the smooth dogfish-specific provisions of the SCA and would require all smooth dogfish to be landed with fins naturally attached. This alternative would change current fishing practices since smooth dogfish caught in the directed and incidental fisheries are fully processed while at sea. As a result, this Alternative A1 would likely lead to reduced landings and a lower ex-vessel price because the product would not be fully processed. This could lead to adverse socioeconomic impacts. Under Alternative A2, the preferred alternative, an allowance for the removal of smooth dogfish fins at sea would increase efficiency in the smooth dogfish fishery and provide a more highly processed product for fishermen to sell to dealers. Quantifying the financial benefits is difficult because baseline effort and increases in efficiency cannot be calculated, but the benefit would fall somewhere between the two extremes of $0 and $699,364, the ex-vessel value of the entire fishery (Section 3.6.2). Assuming that amount is spread evenly across all 169 vessels per year that retain smooth dogfish (Section VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 6.1), the benefit to individual vessels would be $4,138. However, vessels and trips retain smooth dogfish in widely varying amounts, thus, this per vessel estimate may not provide an accurate picture of individual revenues. Supporting entities, such as bait and tackle suppliers, ice suppliers, dealers, and other similar businesses, could experience increased revenue if the efficiency of fin removal at sea results in a higher quality product. However, while supporting businesses would benefit from the increased profitability of the fishery, they do not solely rely on the smooth dogfish fishery. In the longterm, it is likely that changes in the smooth dogfish fishery would not have large impacts on these businesses. Catch Composition Sub-Alternatives Under Sub-Alternative A2–1a, smooth dogfish could make up any portion of the retained catch on board provided that no other sharks are retained. This sub-alternative would authorize smooth dogfish fishermen to retain any nonshark species of fish while still availing themselves of the at-sea fin removal allowance. Smooth dogfish are often caught incidentally during other fishing operations, thus, this sub-alternative would allow fishermen to maximize the profitability of each trip and allow individual operators the flexibility to make decisions, before the trip and while on the water, as to the retained catch composition that would maximize ex-vessel revenues. Under this alternative, fishermen could remove smooth dogfish fins at sea during any type of trip including those trips that are directing effort on other non-shark species. This alternative would maintain the current practice in the fishery and vessels could continue to have ex-vessel revenues of $699,364 per year across the entire fishery (Section 3.6.2). Under Sub-Alternative A2–1b, fishermen could avail themselves of the at-sea fin removal allowance only if smooth dogfish comprise 25 percent of the retained catch on board. This subalternative would authorize smooth dogfish fishermen to retain some nonshark species of fish while still availing themselves of the at-sea fin removal allowance. This sub-alternative would allow some fishermen to maintain the profitability of each trip and allow individual operators some flexibility to make decisions, before the trip and while on the water, as to the retained catch composition that would increase ex-vessel revenues. This increase in flexibility would be to a lesser extent than Sub-Alternative A2–1a which would not have a catch composition PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 73139 requirement, but greater than the other sub-alternatives that limit the finsattached exception to higher catch composition percentages. This subalternative would decrease total exvessel revenues relative to the current level of $699,364 per year (Section 3.6.2). Under Sub-Alternative A2–1c fishermen could avail themselves of the at-sea fin removal allowance only if smooth dogfish comprise 75 percent of the retained catch on board. This subalternative would allow fishermen limited flexibility to maintain the profitability of each trip and would allow fishermen to make decisions, before the trip and while on the water, as to the retained catch composition that would increase ex-vessel revenues. While limited, the flexibility in this alternative would be greater than in subalternative A2–1d, which would require smooth dogfish catch composition of 100 percent. Because some fishermen catch smooth dogfish along with other species, this sub-alternative could decrease the number of mixed species trips where fishermen could take advantage of the at-sea fin removal allowance. This sub-alternative would likely decrease total ex-vessel revenues relative to the current level of $699,364 per year. Sub-Alternative A2–1d would require smooth dogfish to comprise 100 percent of the retained catch on board the vessel in order for fishermen to avail themselves of the at-sea fin removal allowance for smooth dogfish. This subalternative would eliminate the ability of mixed trips to take advantage of the at-sea fin removal, and would reduce flexibility in deciding which species to retain on each fishing trip. However, approximately 31 vessels (annual average 2003–2014) on directed smooth dogfish trips often only retain smooth dogfish due to the processing practices in place. Thus, these fishermen would not be impacted by a 100 percent smooth dogfish requirement and would benefit from the ability to remove the smooth dogfish fins at sea. This subalternative would likely decrease total ex-vessel revenues relative to the current level of $699,364 per year. Sub-Alternative A2–1e, the preferred sub-alternative, would, similar to SubAlternative A2–1b, allow fishermen to avail themselves of the at-sea fin removal allowance only if smooth dogfish comprise 25 percent of the retained catch on board. However, under Sub-Alternative A2–1e, other sharks could be retained as well, provided they are maintained with the fins naturally attached to the carcass. This sub-alternative would allow some E:\FR\FM\24NOR1.SGM 24NOR1 73140 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations fishermen to maintain the profitability of each trip and allow individual operators some flexibility to make decisions, before the trip and while on the water, as to the retained catch composition that would increase exvessel revenues. This increase in flexibility would be to a lesser extent than Sub-Alternative A2–1a, which would not have a catch composition requirement, but greater than the other sub-alternatives that limit the finsattached exception to higher catch composition percentages. This subalternative would decrease total exvessel revenues relative to the current level of $699,364 per year (Section 3.6.2). mstockstill on DSK4VPTVN1PROD with RULES State Fishing Permit Requirement SubAlternatives Sub-Alternative A2–2a would require federal smoothhound permitted fishermen to obtain a smooth dogfishspecific state commercial fishing license in order to be able to remove smooth dogfish fins at sea. The requirement to obtain a smooth dogfish-specific state commercial fishing license may be more difficult for fishermen who are in states that do not have smooth dogfish-specific permits in place. This sub-alternative would result in the increased burden on fishermen to obtain another permit, and depending upon the state, could result in an additional permit charge. Since most permits are valid for one year, fishermen would likely need to renew the permit each year for as long as they wish to retain smooth dogfish and remove the fins while at sea. Because not all states have smooth dogfishspecific permits, NMFS does not prefer this alternative. Sub-Alternative A2–2b, the preferred alternative, would require fishermen to hold any state commercial fishing permit that allows retention of smooth dogfish. It is likely, however, that most smooth dogfish fishermen already hold this type of state permit and would be unaffected by this requirement. This sub-alternative would likely be the most straightforward for regulatory compliance because the permit requirement would be the simpler than sub-alternative A2–2a. Thus, NMFS prefers this sub-alternative. Geographic Applicability of Exception Sub-Alternatives NMFS considered two alternatives for Geographic Application of the SCA exception. Under Sub-Alternative A2– 3a, the exception would apply along the Atlantic Coast and the Florida west coast in the Gulf of Mexico. As explained earlier, as a practical matter, smooth dogfish and other smoothhound VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 species are indistinguishable, although smoothhound are distinguishable from other ridgeback sharks by the presence of a pre-dorsal ridge. The best available scientific information indicates that smooth dogfish are likely the only smoothhound shark species along the Atlantic coast. In the Gulf of Mexico, however, there are at least three different smoothhound species, with no practical way to distinguish among them. This sub-alternative would apply the smooth dogfish exception 50 nautical miles from the baseline of all the States that fall under the SCA definition of ‘‘State.’’ This subalternative could result in other smoothhound sharks indirectly falling under the exception, because they cannot be distinguished from smooth dogfish. NMFS does not expect any impacts because there is no commercial fishery for smooth dogfish in the Gulf of Mexico at this time. However, NMFS does not prefer this sub-alternative because, if a fishery does develop, species misidentification could result in enforcement action. Under Sub-Alternative 3b, the preferred sub-alternative, the exception would only apply along the Atlantic coast and not the Florida west coast in the Gulf of Mexico. By not extending the exception into the Gulf of Mexico, this sub-alternative would ensure that the SCA’s exception to the fins-attached requirements for smooth dogfish would only apply along the Atlantic Coast where the population is almost entirely smooth dogfish, reducing identification problems and inadvertent finning violations. NMFS does not expect any impacts because, at this time, there is no commercial fishery for smooth dogfish in the Gulf of Mexico. NMFS prefers this sub-alternative because it simplifies enforcement and compliance without adverse impacts. This sub-alternative would not affect total ex-vessel revenues relative to the current level of $699,364 per year. Smoothhound Shark Commercial Quotas With regard to the smoothhound quota alternatives, NMFS considered four alternatives. Alternative B1, which would implement the smoothhound shark quota finalized in Amendment 3; Alternative B2, which would establish a rolling quota based on the most recent five years of landings data; Alternative B3, which would calculate the smoothhound quota using the same method as in Amendment 3 but would use updated smoothhound landings information; and Alternative B4, which would establish smoothhound shark quotas that reflects the results of the PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 SEDAR 39 smoothhound shark stock assessments. Alternative B1 would implement the quota finalized in Amendment 3 (715.5 mt dw), which was based on highest annual landings from (1998 to 2007) and adding two standard deviations. Current reported smoothhound shark landings are higher than the quota level in Alternative B1. As such, implementing this quota would prevent fishermen from fishing at current levels, resulting in lost revenues. In 2010 when landings peaked, total smoothhound shark landings totaled 2,688,249 lb dw (ACCSP data) resulting in ex-vessel revenues across the entire smoothhound sink gillnet fishery of $2,458,135 (2,688,249 lb of meat, 322,590 lb of fins). Implementation of the Amendment 3 quota (715.5 mt dw) would result in ex-vessel revenues of only $1,442,367 (1,577,391 lb of meat, 189,287 lb of fins), which is $1,015,768 less than current ex-vessel revenues. Both of these estimates assume $1.62/lb for fins, $0.72/lb for meat, and a 12 percent fin-to-carcass ratio (prices based on 2014 dealer data and fin-to-carcass ratio based on the SCA). Seventy-five percent of all landings in the smoothhound shark fishery come from sink gillnets and there are approximately 77 vessels that use sink gillnet gear to fish for smoothhound sharks in any given year. Assuming an average of 77 sink gillnet vessels fishing for smoothhound sharks, the quota in this alternative would result in annual ex-vessel revenues of $18,732 per vessel which is less than 2010 ex-vessel revenues of $31,923 per vessel. This is an average across all directed and incidental sink gillnet vessels and this individual annual vessel ex-vessel revenue may fluctuate based on the degree to which fishermen direct on smoothhound sharks. The quota in Alternative B1 does not accurately characterize current reported landings of smoothhound sharks. Vessels that fish for smoothhound sharks likely fished opportunistically on multiple species of coastal migratory fish and elasmobranches, and it is unlikely that any sector within the fishing industry in the Northeast (fisherman, dealer, or processor) relies wholly upon smoothhound sharks. Longer-term impacts are expected to be neutral given the small size of the fishery and the generalist nature of the sink gillnet fishery. Alternative B2 would establish a rolling smoothhound shark quota set above the maximum annual landings for the preceding five years; this quota would be recalculated annually to account for the most recent landing E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations trends within the smoothhound complex (2016 quota would be 1,729 mt dw based on 2010–2014 data). The 2016 quota under this alternative is likely to result in annual revenues of $3,485,466 (3,811,753 lb of meat, 457,410 lb of fins) assuming an ex-vessel price of $1.62 lb for fins and $0.72 lb for meat. Seventyfive percent of all landings in the smoothhound shark fishery come from sink gillnets and there are approximately 77 vessels that use sink gillnet gear to fish for smoothhound sharks. Assuming an average of 77 sink gillnet vessels fishing for smoothhound sharks, the quota in this alternative would result in individual vessel annual revenues of $45,266 which is more than 2010 ex-vessel revenues of $31,923 per vessel. This is an average across all sink gillnet vessels, regardless of catch levels, and this individual annual vessel revenue may fluctuate based on the degree to which fishermen direct on smoothhound sharks. Setting the quota above current landings levels should allow the fishery to continue, rather than be closed, allowing for NMFS to collect more information that can be used in future stock assessments. Alternative B2 is consistent with the intent of Amendment 3, which was to minimize changes to the fishery while information on catch and participants was collected. Because landings in the smoothhound shark fishery are likely underreported, it is unclear at this time whether the increase in reported landings is due to existing smoothhound fishermen reporting in anticipation of future management or increased effort (e.g., new entrants into the fishery). While a rolling quota would cover all current reporting and likely cover all underreporting of landings, the fishery could grow exponentially if reported landings continue to increase over consecutive years, possibly resulting in stock declines and in turn a potential loss of revenue to the fishing industry. The rolling quota could also lead to lower quotas in consecutive years if landings decrease over time. Thus, the changing nature of the rolling quota could lead to uncertainty in the fishery and could cause direct and indirect minor adverse socioeconomic impacts in the long term. Alternative B3 would create a smoothhound quota equal to the maximum annual landings from 2005– 2014 plus two standard deviations and would equal 1,733.9 mt dw. This alternative would establish a smoothhound quota two standard deviations above the maximum annual landings reported over the last ten years which is the method used to calculate VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 the smoothhound shark quota that was finalized in Amendment 3. This quota would result in potential annual revenues in the entire fishery of $3,495,345 (3,822,556 lb of meat, 458,707 lb of fins) assuming an exvessel price of $1.62 lb for fins and $0.72 for meat. Seventy-five percent of all landings in the smoothhound shark fishery come from sink gillnets and there are approximately 77 vessels that use sink gillnet gear to fish for smoothhound sharks. Assuming an average of 77 sink gillnet vessels fishing for smoothhound sharks, the quota proposed in this alternative would result in individual vessel annual revenues of $45,394. This is an average across all sink gillnet vessels, regardless of catch levels, and this individual annual vessel revenue may fluctuate based on the degree to which fishermen direct on smoothhound sharks. At the time of publication for the Draft EA, the SEDAR 39 smoothhound stock assessments were underway, but not yet complete. In anticipation that the final stock assessments could be finalized before this final rule, NMFS considered a range of scenarios under Alternative B4 to implement potential results and scenarios, recognizing that results beyond the scope of those analyzed could require additional analysis or regulatory action. The SEDAR 39 stock assessment is now final; thus, the scenarios considered in the Draft EA are no longer appropriate to consider. Rather, NMFS has analyzed the actual results of the stock assessments, which would establish an Atlantic smoothhound commercial quota of 1,201.7 mt dw and a Gulf of Mexico smoothhound shark quota of 336.4 mt dw. These quotas would result in annual revenues of $2,422,251.54 (2,649,006 lb of meat, 317,881 lb fins), assuming an ex-vessel price of $1.62 lb for fins and $0.72 lb for meat. Seventyfive percent of all landings in the smoothhound shark fishery come from sink gillnets and there are approximately 77 vessels that use sink gillnet gear to fish for smoothhound sharks. Assuming an average of 77 sink gillnet vessels fishing for smoothhound sharks, the quota in this alternative would result in individual vessel annual revenues of $31,458. This is an average across all sink gillnet vessels, regardless of catch levels, and this individual annual vessel revenue may fluctuate based on the degree to which fishermen direct on smoothhound sharks. The quotas under Alternative B4 are both consistent with the intent of Amendment 3, which was to minimize changes to the fishery while information PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 73141 on catch and participants was collected, while also implementing science-based quotas to ensure continued sustainable harvest of smoothhound sharks in the Atlantic and Gulf of Mexico regions. NMFS anticipates short-term, direct minor beneficial socioeconomic impacts under this alternative given the combined commercial quotas for the Atlantic and Gulf of Mexico regions under this alternative would result in increased revenues compared to the commercial quota under Alternative B1, though lower than those anticipated under Alternatives B2 or B3. These commercial quotas would allow the fishery to continue at the rate and level observed in recent years into the future without having to be shut down prematurely. Given that the fishery would expect to operate as it currently does, NMFS anticipates in the short term, indirect, minor, positive socioeconomic impacts for shark dealers and processor. Since this alternative establishes scientifically-based quotas and would result in beneficial socioeconomic impacts, NMFS prefers this alternative. Biological Opinion Implementation In order to implement TC 4 of the 2012 Shark BiOp in the smoothhound shark fishery, NMFS considered 4 alternatives. The No Action alternative, which would not implement TC 4 of the 2012 Shark BiOp; alternative C2, which would require smoothhound shark fishermen to conduct net checks at least every 2 hours; alternative C3, which would require smoothhound shark fishermen to limit their gillnet soak time to 24 hours and those smoothhound shark fishermen that also have a Atlantic shark limited access permit to check their nets at least every 2 hours; and finally, Alternative C4, which would require smoothhound and Atlantic shark fishermen using sink gillnet to soak their nets no longer than 24 hours and those fishermen using drift gillnets to check their nets at least every 2 hours. Alternative C1 would not implement the BiOp term and condition that would require all smoothhound shark permit holders to either check their gillnet gear at least every 2.0 hours or limit their soak time to no more than 24 hours. This alternative would likely result in short and long-term neutral direct socioeconomic impacts. Under Alternative C1, smoothhound shark fishermen would continue to fish as they do now and so this alternative would not have economic impacts that differ from the status quo. Similarly, this alternative would likely result in neutral short and long-term indirect E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES 73142 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations socioeconomic impacts since supporting businesses including dealers and bait, tackle, and ice suppliers would not be impacted. Alternative C2 would require smoothhound shark fishermen using gillnet gear to conduct net checks at least every 2.0 hours to check for and remove any protected species, and would likely result in short and longterm direct moderate adverse socioeconomic impacts. Some smoothhound shark gillnet fishermen fish multiple nets at one time or deploy their net(s), leave the vicinity, and return later. Alternative C2 would require these fishermen to check each gillnet at least once every 2 hours, making fishing with multiple nets or leaving nets unattended difficult. This would likely lead to a reduction in effort and landing levels, resulting in lower ex-vessel revenues. Quantifying the loss of income is difficult without information characterizing the fishery including the number of nets fished. However, limiting the amount of fishing effort in this manner is likely to reduce total landings of smoothhound sharks or, in order to keep landing levels high, extend the length of trips. Landings of incidentally caught fish species could be reduced as well, although under preferred Sub-Alternative A2–1c, smoothhound shark fishermen that wish to remove smooth dogfish fins at sea could not retain other species. This alternative would not have a large impact on supporting businesses such as dealers or bait, tackle, and ice suppliers since these businesses do not solely rely on the smoothhound shark fishery. The smoothhound shark fishery is small relative to other fisheries. Thus, Alternative C2 would likely result in short and long-term indirect neutral socioeconomic impacts. Alternative C2 would impact the approximately 77 vessels that annually catch smoothhound sharks with gillnet gear (annual average from 2003–2014, Table 3.1). Alternative C3 would establish a gillnet soak time limit of 24 hours for smoothhound shark permit holders. Under this alternative, fishermen holding both an Atlantic shark limited access permit and a smoothhound shark permit must abide by the 24 hour soak time restriction and conduct net checks at least every 2 hours. This alternative would likely result in short- and longterm direct minor adverse socioeconomic impacts to those smoothhound permitted fishermen that also have an Atlantic shark limited access permit and therefore would be required to check their nets at least every 2 hours. Currently, smoothhound VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 shark gillnet fishermen sometimes fish multiple nets or leave nets unattended for short periods of time. Rarely are these nets soaked for more than 24 hours, thus, this alternative would not impact smoothhound shark gillnet fishermen that do not have an Atlantic shark limited access permit. Adverse socioeconomic impacts resulting from this alternative would likely occur to the subset of smoothhound shark fishermen that also hold an Atlantic shark limited access permit. These smoothhound shark fishermen would be at a disadvantage to other smoothhound shark fishermen that do not have an Atlantic shark limited access permit because they would be required to check their gillnets at least every 2 hours which is a large change in the way the smoothhound shark fishery currently operates. Dropping the Atlantic shark permit to avoid the net check requirement is unlikely to be feasible because Atlantic shark permits allow limited access (NMFS is no longer issuing new permits) and cannot be easily obtained. Additionally, pelagic longline fishermen are required to have an incidental or directed shark permit when targeting swordfish or tunas, even if they are not fishing for sharks, due to the likelihood of incidental shark catch. In practical terms, this could result in smoothhound shark gillnet fishermen abiding by the 2 hour net check requirement even if they do not fish for Atlantic sharks and only hold a Atlantic shark limited access permit to fish for swordfish or tunas (note that gillnets cannot be used to target swordfish or tunas, but some vessels may switch gears between trips). For this subset of fishermen, basing gillnet requirements on permit types could introduce fishing inefficiencies when compared to other smoothhound fishermen, likely resulting in adverse socioeconomic impacts to these fishermen. It is unlikely that this alternative would have a large impact on supporting businesses such as dealers or bait, tackle, and ice suppliers since these businesses do not solely rely on the smoothhound shark fishery. The smoothhound shark fishery is small relative to other fisheries. It is difficult to determine the number of fishermen that would be adversely affected because NMFS does not yet know which vessels will obtain a smoothhound shark fishing permit. However, it is likely that this number will be approximately equal to 169 which is the average annual number of vessel that retain smoothhound sharks (Section 3.4). PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 Alternative C4, the preferred alternative, would establish a soak time limit of 24 hours for fishermen using sink gillnet gear and a 2 hour net check requirement for fishermen using drift gillnet gear in the Atlantic shark and smoothhound shark fisheries. Drift gillnets would be defined as those that are unattached to the ocean bottom with a float line at the surface and sink gillnet gear would be defined as those with a weight line that sinks to the ocean bottom, has a submerged float line, and is designed to be fished on or near the bottom. Alternative C4 would likely result in neutral short and longterm direct socioeconomic impacts. Smoothhound shark fishermen, who typically use sink gillnets, would be required to limit soak times to 24 hours and as discussed above, this requirement is unlikely to significantly alter smoothhound shark fishing practices. Drift gillnet fishermen, who are more likely to target Atlantic sharks rather than smoothhound sharks, would be required to check their nets at least every 2 hours, as is currently required. Thus, this alternative is unlikely to have any socioeconomic impacts to Atlantic shark and smoothhound shark fishermen because it would not change current fishing practices. Similarly, this alternative would likely result in neutral short and long-term indirect socioeconomic impacts because supporting businesses including dealers and bait, tackle, and ice suppliers should not be impacted. Alternative C4 would impact the approximately 77 vessels that annually catch smoothhound sharks with gillnet gear (annual average from 2003–2014, Table 3.1). Because Alternative C4 would have minimal economic impact but is still consistent with the 2012 Shark BiOp, NMFS prefers this alternative. Atlantic Shark Gillnet Vessel Monitoring System Requirements NMFS also considered two alternatives to streamline the current VMS requirements for Atlantic shark fishermen with gillnet gear on board. The No Action alternative would maintain the current requirement to have VMS on board when fishing for Atlantic sharks with gillnet regardless of where the vessel is fishing and alternative D2 would require VMS on board only for Atlantic shark fishermen using gillnet gear in an area specified by the ALWTRP requirements at 50 CFR 229.32. Alternative D1 would maintain the current requirement of requiring Atlantic shark permit holders fishing with gillnet gear to have VMS on board, regardless of where the vessel is fishing. E:\FR\FM\24NOR1.SGM 24NOR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations These VMS requirements were put in place as an enforcement tool for complying with the ALWTRP requirements set forth in 50 CFR 229.32. Atlantic shark gillnet fishermen are only required to have VMS if they are fishing in the Southeast U.S. Monitoring Area. See 50 CFR 229.32(h)(2)(i). Purchasing and installing a VMS unit costs approximately $3,500, and monthly data transmission charges cost, on average, approximately $44.00. Because these monthly costs are currently incurred whenever a shark gillnet fishermen is fishing, these costs can affect the fishermen’s annual revenues. Although the affected fishermen already have VMS installed, they continue to pay for transmission and maintenance costs, and could need to buy a new unit if theirs fails. It is possible that a NMFS VMS reimbursement program could defray part of the purchase cost, but is not certain. Thus, it is likely that this alternative could have short and longterm direct minor adverse socioeconomic impacts to fishermen due to the cost of purchasing and maintaining a VMS unit. While the retention of sharks in federal waters requires one of two limited access commercial shark permits, these permits do not specify gear type, including gillnets. For this reason, NMFS does not know the exact number of affected shark gillnet fishermen. As of October 11, 2014, there are 206 directed shark and 258 incidental shark permit holders. Logbook records indicate that there are usually about 18 Atlantic shark directed permit holders that use gillnet gear in any year. However, the universe of directed permit holders using gillnet gear can change from year to year and could include anyone who holds an Atlantic shark directed permit. Alternative D2, the preferred alternative, would change the gillnet VMS requirements and would require federal directed shark permit holders with gillnet gear on board to use VMS only in the vicinity of the Southeast U.S. Monitoring Area, pursuant to ALWTRP requirements, and would have short and long-term direct minor beneficial socioeconomic impacts. Atlantic shark gillnet fishermen fishing in the vicinity of the Southeast U.S. Monitoring Area would still incur the installation costs of the VMS, but data transmission would be limited to those times when the vessel is in this area. Furthermore, shark gillnet fishermen outside of this area that do not fish in the vicinity of the Southeast U.S. Monitoring Area would not need to install a VMS unit or, if they already have one, maintain the VMS unit or VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 replace a malfunctioning one. Thus, the socioeconomic impacts from this alternative, while still adverse, are of a lesser degree than those under Alternative D1, the No Action alternative. This alternative would likely result in neutral short and longterm indirect socioeconomic impacts because supporting businesses, including dealers and bait, tackle, and ice suppliers, would not be impacted. While the retention of sharks in federal waters requires one of two limited access commercial shark permits, these permits do not specify gear type, including gillnets. For this reason, NMFS does not know the exact number of shark gillnet fishermen that would be affected by this alternative. As of October 11, 2014, there are 206 directed shark and 258 incidental shark permit holders. Logbook records indicate that there are usually about 18 Atlantic shark directed permit holders that use gillnet gear in any year. However, the universe of directed permit holders using gillnet gear can change from year to year and could include anyone who holds an Atlantic shark directed permit. Because this alternative is more in line with the requirements of the ALWTRP, and because it would reduce socioeconomic impacts while still maintaining beneficial ecological impacts for protected whale species, NMFS prefers this alternative. This final rule contains a collectionof-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648–0372. Public reporting burden will be reduced under the modified VMS requirements under this final rule. The burden estimate burden will be reduced by this rule, but the changes will be requested as part of the 2016 extension, at which time the estimate of the burden change will be more accurate. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the HMS Management Division (see ADDRESSES) and the guide (i.e., permit holder letter) will be sent to PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 73143 all holders of permits for the Atlantic shark and smoothhound shark commercial fisheries. The guide and this final rule will be available upon request. List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties. Dated: November 12, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 635 is 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 § 635.2, add definitions for ‘‘Atlantic States,’’ ‘‘Drift gillnet,’’ ‘‘Sink gillnet,’’ and ‘‘Smoothhound shark(s)’’ in alphabetical order to read as follows: ■ § 635.2 Definitions. * * * * * Atlantic States, consistent with section 803 of Public law 103–206 (16 U.S.C. 5102), refers to Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, the District of Columbia, and the Potomac River Fisheries Commission, for purposes of applying the Shark Conservation Act exception at 50 CFR 635.30(c)(5). * * * * * Drift gillnet means a gillnet that is floating unattached to the ocean bottom and not anchored, secured, or weighted to the ocean bottom. * * * * * Sink gillnet means a gillnet that is designed to be or is fished on or near the ocean bottom in the lower third of the water column by means of a weight line or enough weights and/or anchors that the bottom of the gillnet sinks to, on, or near the ocean bottom. * * * * * Smoothhound shark(s) means one of the species, or part thereof, listed in section E of Table 1 in Appendix A to this part. * * * * * ■ 3. In § 635.4, add paragraph (e)(4) and revise paragraph (m)(2) to read as follows: E:\FR\FM\24NOR1.SGM 24NOR1 73144 § 635.4 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations Permits and fees. mstockstill on DSK4VPTVN1PROD with RULES * * * * * (e) * * * (4) Owners of vessels that fish for, take, retain, or possess the Atlantic oceanic sharks listed in section E of Table 1 of Appendix A to this part with an intention to sell them must obtain a Federal commercial smoothhound permit. In addition to other permits issued pursuant to this section or other authorities, a Federal commercial smoothhound permit may be issued to a vessel alone or to a vessel that also holds either a Federal Atlantic commercial shark directed or incidental limited access permit. * * * * * (m) * * * (2) Shark and swordfish permits. A vessel owner must obtain the applicable limited access permit(s) issued pursuant to the requirements in paragraphs (e) and (f) of this section and/or a Federal commercial smoothhound permit issued under paragraph (e) of this section; or an HMS Commercial Caribbean Small Boat permit issued under paragraph (o) of this section, if: The vessel is used to fish for or take sharks commercially from the management unit; sharks from the management unit are retained or possessed on the vessel with an intention to sell; or sharks from the management unit are sold from the vessel. A vessel owner must obtain the applicable limited access permit(s) issued pursuant to the requirements in paragraphs (e) and (f) of this section, a Swordfish General Commercial permit issued under paragraph (f) of this section, an Incidental HMS Squid Trawl permit issued under paragraph (n) of this section, an HMS Commercial Caribbean Small Boat permit issued under paragraph (o) of this section, or an HMS Charter/Headboat permit issued under paragraph (b) of this section, which authorizes a Charter/Headboat to fish commercially for swordfish on a non for-hire trip subject to the retention limits at § 635.24(b)(4) if: The vessel is used to fish for or take swordfish commercially from the management unit; swordfish from the management unit are retained or possessed on the vessel with an intention to sell; or swordfish from the management unit are sold from the vessel. The commercial retention and sale of swordfish from vessels issued an HMS Charter/ Headboat permit is permissible only when the vessel is on a non for-hire trip. Only persons holding non-expired shark and swordfish limited access permit(s) in the preceding year are eligible to renew those limited access permit(s). Transferors may not renew limited VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 access permits that have been transferred according to the procedures in paragraph (l) of this section. * * * * * ■ 4. Revise § 635.7 to read as follows: § 635.7 At-sea observer coverage. (a) Applicability. NMFS may select for at-sea observer coverage any vessel that has an Atlantic HMS, tunas, shark, or swordfish permit issued under § 635.4 or § 635.32. When selected, vessels are required to take observers on a mandatory basis. Vessels permitted in the HMS Charter/Headboat and Angling categories may be requested to take observers on a voluntary basis. (b) Selection of vessels. NMFS will notify a vessel owner, in writing, by email, by phone, or in person when his or her vessel is selected for observer coverage. Vessels will be selected to provide information on catch, bycatch and other fishery data according to the need for representative samples. (c) Notification of trips. If selected to carry an observer, it is the responsibility of the vessel owner to arrange for and facilitate observer placement. The owner or operator of a vessel that is selected under paragraph (b) of this section must notify NMFS, at an address or by phone at a number designated by NMFS, before commencing any fishing trip that may result in the incidental catch or harvest of Atlantic HMS. Notification procedures and information requirements will be specified in a selection letter sent by NMFS. (d) Assignment of observers. Once a selected vessel notifies NMFS or its designee, NMFS will assign an observer for that trip based on current information needs relative to the expected catch and bycatch likely to be associated with the indicated gear deployment, trip duration and fishing area. If an observer is not assigned for a fishing trip, NMFS, or their designated observer service provider, will issue a waiver for that trip to the owner or operator of the selected vessel, so long as the waiver is consistent with other applicable laws. If an observer is assigned for a trip, the operator of the selected vessel must arrange to embark the observer and shall not fish for or retain any Atlantic HMS unless the NMFS-assigned observer is aboard. (e) Requirements. The owner or operator of a vessel on which a NMFSapproved observer is embarked, regardless of whether required to carry the observer, must comply with safety regulations in § 600.725 and § 600.746 of this chapter and— (1) Provide accommodations and food that are equivalent to those provided to the crew. PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 (2) Allow the observer access to and use of the vessel’s communications equipment and personnel upon request for the transmission and receipt of messages related to the observer’s duties. (3) Allow the observer access to and use of the vessel’s navigation equipment and personnel upon request to determine the vessel’s position. (4) Allow the observer free and unobstructed access to the vessel’s bridge, working decks, holding bins, weight scales, holds, and any other space used to hold, process, weigh, or store fish. (5) Allow the observer to inspect and copy the vessel’s log, communications logs, and any records associated with the catch and distribution of fish for that trip. (6) Notify the observer in a timely fashion of when fishing operations are to begin and end. (f) Vessel responsibilities. An owner or operator of a vessel required to carry one or more observer(s) must provide reasonable assistance to enable observer(s) to carry out their duties, including, but not limited to: (1) Measuring decks, codends, and holding bins. (2) Providing the observer(s) with a safe work area. (3) Collecting bycatch when requested by the observer(s). (4) Collecting and carrying baskets of fish when requested by the observer(s). (5) Allowing the observer(s) to collect biological data and samples. (6) Providing adequate space for storage of biological samples. ■ 5. In § 635.19, revise paragraph (d) to read as follows: § 635.19 Authorized gears. * * * * * (d) Sharks. No person may possess a shark in the EEZ taken from its management unit without a permit issued under § 635.4. No person issued a Federal Atlantic commercial shark permit under § 635.4 may possess a shark taken by any gear other than rod and reel, handline, bandit gear, longline, or gillnet, except that smoothhound sharks may be retained incidentally while fishing with trawl gear subject to the restrictions specified in § 635.24(a)(7). No person issued an HMS Commercial Caribbean Small Boat permit may possess a shark taken from the U.S. Caribbean, as defined at § 622.2 of this chapter, by any gear other than with rod and reel, handline or bandit gear. No person issued an HMS Angling permit or an HMS Charter/Headboat permit under § 635.4 may possess a shark if the shark was taken from its E:\FR\FM\24NOR1.SGM 24NOR1 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations management unit by any gear other than rod and reel or handline, except that persons on a vessel issued both an HMS Charter/Headboat permit and a Federal Atlantic commercial shark permit may possess sharks taken with rod and reel, handline, bandit gear, longline, or gillnet if the vessel is not engaged in a for-hire fishing trip. * * * * * 6. In § 635.20, add paragraph (e)(5) to read as follows: ■ § 635.20 Size limits. * * * * * (e) * * * (5) There is no size limit for smoothhound sharks taken under the recreational retention limits specified at § 635.22(c)(6). * * * * * 7. In § 635.21, revise the section heading, and paragraphs (g)(2) and (3) to read as follows: ■ § 635.21 Gear operation and deployment restrictions. * * * * * (g) * * * (2) While fishing with a drift gillnet, a vessel issued or required to be issued a Federal Atlantic commercial shark limited access permit and/or a Federal commercial smoothhound permit must conduct net checks at least every 2 hours to look for and remove any sea turtles, marine mammals, Atlantic sturgeon, or smalltooth sawfish, and the drift gillnet must remain attached to at least one vessel at one end, except during net checks. Smalltooth sawfish must not be removed from the water while being removed from the net. (3) While fishing with a sink gillnet, vessels issued or required to be issued a Federal Atlantic commercial shark limited access permit and/or a Federal commercial smoothhound permit must limit the soak time of the sink gillnet gear to no more than 24 hours, measured from the time the sink gillnet first enters the water to the time it is completely removed from the water. Smalltooth sawfish must not be removed from the water while being removed from the net. * * * * * § 635.24 Commercial retention limits for sharks, swordfish, and BAYS tunas. * * * * * (a) * * * (7) A person who owns or operates a vessel that has been issued a Federal commercial smoothhound permit may retain, possess, and land smoothhound sharks if the smoothhound fishery is open in accordance with §§ 635.27 and 635.28. Persons aboard a vessel in a trawl fishery that has been issued a Federal commercial smoothhound permit and are in compliance with all other applicable regulations, may retain, possess, land, or sell incidentally-caught smoothhound sharks, but only up to an amount that does not exceed 25 percent, by weight, of the total catch on board and/or offloaded from the vessel. A vessel is in a trawl fishery when it has no commercial fishing gear other than trawls on board and when smoothhound sharks constitute no more than 25 percent by weight of the total catch on board or offloaded from the vessel. * * * * * ■ 10. In § 635.27, add paragraphs (b)(1)(i)(E), (b)(1)(ii)(F), and (b)(4)(iv) to read as follows: § 635.27 Quotas. 8. In § 635.22, add paragraph (c)(6) to read as follows: * * * * (b) * * * (1) * * * (i) * * * (E) Atlantic smoothhound sharks. The base annual commercial quota for Atlantic smoothhound sharks is 1,201.7 mt dw. (ii) * * * (F) Gulf of Mexico smoothhound sharks. The base annual commercial quota for Gulf of Mexico smoothhound sharks is 336.4 mt dw. * * * * * (4) * * * (iv) The base annual quota for persons who collect smoothhound sharks under a display permit or EFP is 6 mt ww (4.3 mt dw). * * * * * ■ 11. In § 635.30, revise paragraphs (c)(1) through (3), and add paragraph (c)(5) to read as follows: § 635.22 § 635.30 ■ mstockstill on DSK4VPTVN1PROD with RULES only to the size limits described in § 635.20(e)(5). * * * * * ■ 9. In § 635.24, add paragraph (a)(7) to read as follows: Recreational retention limits. * * * * * (c) * * * (6) The smoothhound sharks listed in Section E of Table 1 of Appendix A to this part may be retained and are subject VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 * Possession at sea and landing. * * * * * (c) Shark. (1) In addition to the regulations issued at part 600, subpart N, of this chapter, a person who owns or operates a vessel issued a Federal PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 73145 Atlantic commercial shark permit under § 635.4 must maintain all the shark fins including the tail naturally attached to the shark carcass until the shark has been offloaded from the vessel, except for under the conditions specified in paragraph (c)(5) of this section. While sharks are on board and when sharks are being offloaded, persons issued a Federal Atlantic commercial shark permit under § 635.4 are subject to the regulations at part 600, subpart N, of this chapter. (2) A person who owns or operates a vessel that has a valid Federal Atlantic commercial shark permit may remove the head and viscera of the shark while on board the vessel. At any time when on the vessel, sharks must not have the backbone removed and must not be halved, quartered, filleted, or otherwise reduced. All fins, including the tail, must remain naturally attached to the shark through offloading, except under the conditions specified in paragraph (c)(5) of this section. While on the vessel, fins may be sliced so that the fin can be folded along the carcass for storage purposes as long as the fin remains naturally attached to the carcass via at least a small portion of uncut skin. The fins and tail may only be removed from the carcass once the shark has been landed and offloaded, except under the conditions specified in paragraph (c)(5) of this section. (3) A person who owns or operates a vessel that has been issued a Federal Atlantic commercial shark permit and who lands sharks in an Atlantic coastal port, including ports in the Gulf of Mexico and Caribbean Sea, must have all fins and carcasses weighed and recorded on the weighout slips specified in § 635.5(a)(2) and in accordance with part 600, subpart N, of this chapter. Persons may not possess any shark fins not naturally attached to a shark carcass on board a fishing vessel at any time, except under the conditions specified in paragraph (c)(5) of this section. Once landed and offloaded, sharks that have been halved, quartered, filleted, cut up, or reduced in any manner may not be brought back on board a vessel that has been or should have been issued a Federal Atlantic commercial shark permit. * * * * * (5) A person who owns or operates a vessel that has been issued a Federal commercial smoothhound permit may remove the fins and tail of a smooth dogfish shark prior to offloading if the conditions in paragraphs (c)(5)(i) through (iv) of this section have been met. If the conditions in paragraphs (c)(5)(i) through (iv) of this section have E:\FR\FM\24NOR1.SGM 24NOR1 73146 Federal Register / Vol. 80, No. 226 / Tuesday, November 24, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES not been met, all fins, including the tail, must remain naturally attached to the smooth dogfish through offloading from the vessel: (i) The smooth dogfish was caught within waters of the United States located shoreward of a line drawn in such a manner that each point on it is 50 nautical miles from the baseline of an Atlantic State from which the territorial sea is measured, from Maine south through Florida to the Atlantic and Gulf of Mexico shark regional boundary defined in § 635.27(b)(1). (ii) The vessel has been issued both a Federal commercial smoothhound permit and a valid State commercial fishing permit that allows for fishing for smooth dogfish. (iii) Smooth dogfish make up at least 25 percent of the catch on board at the time of landing. (iv) Total weight of the smooth dogfish fins landed or found on board a vessel cannot exceed 12 percent of the total dressed weight of smooth dogfish VerDate Sep<11>2014 23:14 Nov 23, 2015 Jkt 238001 carcasses on board or landed from the fishing vessel. * * * * * ■ 12. In § 635.69, revise paragraph (a)(3) to read as follows: § 635.69 Vessel monitoring systems. (a) * * * (3) Pursuant to Atlantic large whale take reduction plan requirements at 50 CFR 229.32(h), whenever a vessel issued a directed shark LAP has a gillnet(s) on board. * * * * * ■ 13. In § 635.71, revise paragraphs (d)(6) and (7), and add paragraph (d)(18) to read as follows: § 635.71 Prohibitions. * * * * * (d) * * * (6) Fail to maintain a shark in its proper form, as specified in § 635.30(c). Fail to maintain naturally attached shark fins through offloading as specified in § 635.30(c), except for under the conditions specified in § 635.30(c)(5). PO 00000 Frm 00060 Fmt 4700 Sfmt 9990 (7) Sell or purchase smooth dogfish fins that are disproportionate to the weight of smooth dogfish carcasses, as specified in § 635.30(c)(5). * * * * * (18) Retain or possess on board a vessel in the trawl fishery smoothhound sharks in an amount that exceeds 25 percent, by weight, of the total fish on board or offloaded from the vessel, as specified at § 635.24(a)(7). * * * * * ■ 14. In Appendix A to Part 635, add Section E to Table 1 to read as follows: Appendix A to Part 635—Species Tables Table 1 of Appendix A to Part 635— Oceanic Sharks * * * * * E. Smoothhound Sharks Smooth dogfish, Mustelus canis Florida smoothhound, Mustelus norrisi Gulf smoothhound, Mustelus sinusmexicanus Mustelus species [FR Doc. 2015–29516 Filed 11–23–15; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\24NOR1.SGM 24NOR1

Agencies

[Federal Register Volume 80, Number 226 (Tuesday, November 24, 2015)]
[Rules and Regulations]
[Pages 73128-73146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29516]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110819516-5913-02]
RIN 0648-BB02


Atlantic Highly Migratory Species; Smoothhound Shark and Atlantic 
Shark Management Measures

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

ACTION: Final rule; fishery notification.

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SUMMARY: This final rule implements Amendment 9 to the 2006 
Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management 
Plan (FMP) (Amendment 9) to bring smoothhound sharks under Federal 
management and establishes an effective date for previously-adopted 
shark management measures finalized in Amendment 3 to the 2006 
Consolidated Atlantic HMS FMP (Amendment 3) and the 2011 Final Rule to 
Modify the Retention of Incidentally-Caught Highly Migratory Species in 
Atlantic Trawl Fisheries (August 10, 2011) (2011 HMS Trawl Rule). 
Specifically, this final rule establishes Atlantic and Gulf of Mexico 
regional smoothhound shark annual commercial quotas based on recent 
stock assessments; implements the shark gillnet requirements of the 
2012 Shark and Smoothhound Biological Opinion (BiOp); and modifies 
current regulations related to the use of vessel monitoring systems 
(VMS) by Atlantic shark fishermen using gillnet gear. The term 
``smoothhound sharks'' collectively refers to smooth dogfish (Mustelus 
canis), Florida smoothhound (M. norrisi), Gulf smoothhound (M. 
sinusmexicanus), small eye smoothhound (M. higmani), and any other 
Mustelus spp. that might be found in U.S. waters of the Atlantic, Gulf 
of Mexico, and Caribbean, collectively. This rule also implements the 
smooth dogfish specific provisions in the Shark Conservation Act of 
2010 (SCA). The SCA requires that all sharks landed from Federal waters 
in the United States be landed with their fins naturally attached to 
the carcass, but includes a limited exception for smooth dogfish. For 
the Federal Atlantic shark fisheries, current HMS regulations require 
federally-permitted shark fishermen to land all sharks with fins 
naturally attached to the carcass. The SCA's fins-attached requirement 
is being addressed nationwide through a separate ongoing rulemaking. 
This final rule only addresses the provision contained in the SCA that 
allows at-sea fin removal of Atlantic smooth dogfish.
    Additionally, NMFS will hold an operator-assisted, public 
conference call and webinar on December 15, 2015, to discuss the 
methodology used to calculate the Atlantic and Gulf of Mexico 
smoothhound shark quotas (see ADDRESSES).

DATES: Effective March 15, 2016. An operator-assisted, public 
conference call and webinar will be held on December 15, 2015, from 
2:00 p.m. to 4:00 p.m., EST.

ADDRESSES: The conference call-in phone number is 1-800-857-9816; 
participant pass code is 9776014. Participants are strongly encouraged 
to log/dial in 15 minutes prior to the meeting. NMFS will show a brief 
presentation via webinar followed by public questions. To join the 
webinar go to: https://noaa-meets.webex.com/noaa-meets/j.php?MTID=m812c15f48b46787ea7475fc010c7099e, enter your name and email 
address, and click the ``JOIN'' button. If requested, the meeting 
number is 991 661 137 and the meeting password is NOAA. Participants 
who have not used WebEx before will be prompted to download and run a 
plug-

[[Page 73129]]

in program that will enable them to view the webinar.
    Copies of Amendment 9, including the Final Environmental Assessment 
(EA) and other relevant documents, are available from the HMS 
Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/. 
Copies of the 2015 smoothhound shark stock assessment results are 
available on the Southeast Data Assessment and Review (SEDAR) Web site 
at http://sedarweb.org/sedar-39.

FOR FURTHER INFORMATION CONTACT: Steve Durkee by phone: 202-670-6637 or 
Karyl Brewster-Geisz by phone: 301-427-8503 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION: Atlantic sharks are managed under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), and the authority to promulgate regulations 
under the Magnuson-Stevens Act has been delegated from the Secretary to 
the Assistant Administrator (AA) for Fisheries, NOAA. On October 2, 
2006, NMFS published in the Federal Register (71 FR 58058) final 
regulations, effective November 1, 2006, which detailed management 
measures for Atlantic HMS fisheries, including for the smoothhound 
shark and Atlantic shark fisheries. The implementing regulations for 
the 2006 Consolidated HMS FMP and its amendments are at 50 CFR part 
635. This final rule implements the conservation and management 
measures from Amendment 9 in the Atlantic shark and smoothhound shark 
fisheries and the measures in Amendment 3 and 2011 HMS Trawl Rule in 
the Atlantic smoothhound shark fishery.

Background

    A brief summary of the background of this final action is provided 
below. A more detailed history of the development of these regulations 
and the alternatives considered are described in the Final 
Environmental Assessment (EA) for Amendment 9, which can be found 
online on the HMS Web site (see ADDRESSES).
    NMFS published a proposed rule on August 7, 2014 (79 FR 46217), 
outlining the alternatives analyzed in the Draft EA, identifying 
preferred alternatives, and soliciting public comments on the measures, 
which would impact the smoothhound shark and Atlantic shark fisheries. 
Specifically, the proposed rule included the following measures: For 
smooth dogfish only, modifying prohibitions on at-sea fin removal to be 
consistent with the SCA; implementing Term and Condition 4 of the 2012 
Shark BiOp; based on updated catch data, adjusting the smoothhound 
shark quota finalized in Amendment 3; and modifying the VMS 
requirements for shark gillnet vessels. The full description of the 
management and conservation measures considered is included in both the 
Final EA for Amendment 9 and the proposed rule and is not repeated 
here.
    The comment period for the Draft EA and proposed rule for Amendment 
9 ended on November 14, 2014. The comments received, and responses to 
those comments, are summarized below under the heading labeled Response 
to Comments.
    Management measures in Amendment 9 will impact both the smoothhound 
shark and Atlantic shark fisheries. This rule finalizes most of the 
management measures, but modifies others, that were contained in the 
Draft EA and proposed rule for Amendment 9. This section provides a 
summary of the final management measures being implemented by Amendment 
9 and notes changes from the proposed rule to this final rule. Measures 
that are different from the proposed rule, or measures that were 
proposed but not implemented, are described in detail under the heading 
titled Changes from the Proposed Rule.
    This final rule implements the smooth dogfish-specific measures in 
the SCA to establish an allowance for the removal of smooth dogfish 
fins while at sea. To implement the measures, the proposed rule 
considered three categories of requirements--catch composition, state 
permitting, and geographic applicability of the exceptions--and a range 
of alternatives within each category (``sub-alternatives''). Only 
fishermen that meet the requirements under all three of these 
categories and that are, as specified in the Act, fishing within 50 
nautical miles of shore and possess fins in an amount that does not 
exceed 12 percent of the carcass weight, would be authorized to remove 
smooth dogfish fins at sea.
    For catch composition, NMFS preferred in the proposed rule a sub-
alternative that would have required that smooth dogfish make up at 
least 75 percent of the retained catch on board and that no other 
sharks could be retained. For state permitting, the proposed rule 
included a sub-alternative that would have required an individual to 
hold a state commercial fishing permit that allows smooth dogfish 
retention, in addition to a Federal smoothhound permit. With regard to 
geographic applicability, the proposed rule included a sub-alternative 
that would have applied the SCA exception for smooth dogfish along the 
entire Atlantic coast but not to Florida's coast in the Gulf of Mexico. 
During the public comment period, NMFS received support for the two 
proposed sub-alternatives related to state fishing permits and 
geographic applicability of the SCA provisions. However, NMFS received 
many comments opposing the catch composition requirement of 75 percent 
and the ``no other sharks on board'' provision. Commenters expressed 
concern that these requirements do not meet the intent of the statutory 
exception because they do not reflect the mixed nature of catch in the 
smooth dogfish fishery and would render the exception largely 
meaningless. They also stated that the catch composition requirement 
would lead to excessive dead discards and would be burdensome.
    As detailed under the Changes from the Proposed Rule heading, NMFS 
is implementing the two sub-alternatives related to state fishing 
permits and geographic applicability of the exception as originally 
proposed. NMFS is changing the catch composition requirement and will 
require smooth dogfish to make up at least 25 percent of the total 
retained catch in order to remove the fins of smooth dogfish while at 
sea. Additionally, fishermen may retain other sharks on board provided 
that the fins of other shark species remain naturally attached to the 
carcass through offloading. Only fishermen adhering to the measures in 
the three sub-alternatives, as well as fishing within 50 nautical miles 
of shore and possessing fins in an amount that does not exceed 12 
percent of the carcass weight, will be authorized to remove smooth 
dogfish fins at sea.
    This final rule also establishes separate Atlantic and Gulf of 
Mexico regional smoothhound shark total allowable catches (TACs) and 
commercial quotas based on the results of the 2015 Southeast Data 
Assessment and Review (SEDAR) 39 stock assessments for smoothhound 
sharks. The assessments were finalized and peer reviewed in March 2015. 
On June 29, 2015, NMFS issued a stock status determination notice (80 
FR 36974) that stated that ``[d]ata from tagging and genetic research 
in SEDAR 39 support the existence of two distinct Atlantic and Gulf of 
Mexico stocks of smooth dogfish separated by peninsular Florida. 
Therefore, smooth dogfish was treated as two separate stocks, one in 
the Atlantic region and one in the Gulf of Mexico region.'' 80 FR 36974 
(June 29, 2015). Each stock had a status of not overfished with no 
overfishing occurring. Based on public comments requesting that 
commercial quotas be based on stock assessments and not

[[Page 73130]]

landings, NMFS is implementing regional smoothhound shark TACs and 
commercial quotas based on SEDAR 39, instead of the proposed, single 
overall quota based on landings data. Specifically, while we proposed 
an overall commercial quota of 1,739.9 mt dw covering both the Atlantic 
and Gulf of Mexico regions (using commercial landings data in the 
absence of a stock assessment), this final rule establishes separate 
regional TACs and commercial quotas within those TACs as follows: An 
Atlantic regional smoothhound shark TAC of 1,430.6 mt dw with a 
commercial quota of 1,201.7 mt dw, and a Gulf of Mexico regional 
smoothhound shark TAC of 509.6 mt dw with a commercial quota of 336.4 
mt dw. Implementing these science-based TACs and commercial quotas will 
ensure continued sustainable harvest of smoothhound sharks in the 
Atlantic and Gulf of Mexico regions and increase the likelihood of 
maintaining healthy smoothhound shark stocks in both regions. 
Additional details are provided below under the heading Changes from 
the Proposed Rule.
    Term and Condition (TC) 4 of the 2012 Shark BiOp addressed soak 
time and net check requirements for gillnet gear. In order to comply 
with TC 4, this final rule modifies the soak time and net check 
requirements based on the type of gillnet gear used in the Atlantic 
shark and smoothhound shark fisheries. NMFS has determined that current 
regulations meet the specifications for other TCs in the 2012 BiOp. 
This final rule will establish a soak time limit of 24 hours for sink 
gillnet gear and a 0.5 to 2 hour net check requirement for drift 
gillnet gear in the Atlantic shark and smoothhound shark fisheries. 
This requirement would not significantly change smoothhound shark 
fishing practices, since most smoothhound shark gillnet fishermen 
primarily use sink gillnet gear and those fishermen already use a soak 
time of 24 hours or less.
    This final rule also modifies current regulations related to the 
use of VMS by federal directed shark permit holders using gillnet gear. 
Before this rule, federal directed shark permit holders with gillnet 
gear on board were required to use VMS regardless of vessel location in 
order to simplify compliance and outreach for fishermen operating 
across multiple regions. This requirement was implemented as part of 
the 2003 Amendment 1 to the 1999 FMP for Atlantic Tunas, Swordfish, and 
Sharks to ensure shark gillnet vessels were complying with the Atlantic 
Large Whale Take Reduction Plan (ALWTRP) time/area closures and 
observer requirements (50 CFR 229.32). However, since implementation, 
it has become apparent that while some fishermen do fish in multiple 
regions, many do not fish in or even near the Southeast U.S. Monitoring 
Area. As such, this final rule will require federal directed shark 
permit holders with gillnet gear on board to use VMS only in the 
vicinity of the Southeast U.S. Monitoring Area, pursuant to ALWTRP 
requirements. Requirements to minimize large whale interactions would 
not change; rather, only the geographic area of the VMS requirement 
would change, consistent with the ALWTRP.
    This final rule also establishes an effective date for previously-
adopted smoothhound shark management measures in Amendment 3 and the 
2011 HMS Trawl Rule. The final rule implementing conservation and 
management measures in Amendment 3 published on June 1, 2010 (75 FR 
30484) but delayed the effective date of the smoothhound shark 
management measures until approximately 2012 pending approval for the 
data collection measures under the Paperwork Reduction Act (PRA) by the 
Office of Management and Budget (OMB), to provide time for 
implementation of a permit requirement, to provide time for NMFS to 
complete a Biological Opinion under Section 7 of the Endangered Species 
Act (ESA), and to provide time for affected fishermen to change 
business practices, particularly as it related to keeping shark fins 
attached to the carcass through offloading. OMB approved the PRA data 
collection in May of 2011 and NMFS met informally with smoothhound 
shark fishermen along the east coast in the fall of 2010. In November 
2011, NMFS published a rule (76 FR 70064, November 10, 2011) that 
indefinitely delayed the effective date for all smoothhound shark 
management measures in both Amendment 3 and in another rule, the 2011 
Final Rule to Modify the Retention of Incidentally-Caught Highly 
Migratory Species in Atlantic Trawl Fisheries (76 FR 49368, August 10, 
2011 (2011 HMS Trawl Rule)), to provide time for NMFS to consider the 
smooth dogfish-specific provisions in the SCA and for NMFS to finalize 
a Biological Opinion on the federal actions in Amendment 3, among other 
things. Previously-adopted management measures from Amendment 3 that 
will become effective on January 1, 2016, include: A research set-aside 
quota; an accountability measure (AM), which closes the fishery when 
smoothhound shark landings reach, or are expected to reach, 80 percent 
of the quota; a requirement for a dealer permit to purchase smoothhound 
sharks; a requirement for dealers to report smoothhound shark 
purchases; a smoothhound permit requirement for commercial and 
recreational fishing and retention; a requirement for vessels fishing 
for smoothhound sharks to carry an observer, if selected; a requirement 
for vessels fishing for smoothhound sharks to comply with applicable 
Take Reduction Plans pursuant to the Marine Mammal Protection Act 
(MMPA); and a requirement for commercial vessels to sell catch only to 
Federally-permitted shark dealers. Management measures affecting 
smoothhound sharks in the HMS Trawl Rule will allow retention of 
smoothhound sharks caught incidentally with trawl gear, provided that 
the total smoothhound shark catch on board or offloaded does not exceed 
25 percent of the total catch by weight.
    Finally, this rule makes administrative changes to the observer 
regulations. Currently, the Atlantic shark fishery observer program is 
administered by the Southeast Fisheries Science Center (SEFSC). 
However, a portion of the commercial smoothhound shark fishery occurs 
in the Northeast region in an area typically covered by observer 
programs administered out of the Northeast Fisheries Science Center 
(NEFSC). Since the fishery spans the geographic area of both the NEFSC 
and SEFSC, smoothhound shark observer regulations need to accommodate 
the administrative processes of both programs. The two regional science 
center observer program processes are slightly different. The SEFSC 
process is currently outlined in the 50 CFR part 635 regulations but 
the NEFSC process is not. Thus, this final rule implements changes to 
the observer regulations in 50 CFR part 635 to incorporate the relevant 
portions of the NEFSC observer regulations found at 50 CFR part 648.

Response to Comments

    During the proposed rule stage, NMFS received approximately 500 
written comments from fishermen, States, environmental groups, academia 
and scientists, and other interested parties. NMFS also received 
feedback from the HMS Advisory Panel; constituents who attended the two 
public hearings in October 2014 in Toms River, New Jersey, and Manteo, 
North Carolina; and constituents who attended the conference calls/
webinars held on September 24 and November 4, 2014. Additionally, NMFS 
consulted with the New England, Mid-Atlantic, South Atlantic, Gulf of 
Mexico, and Caribbean Regional Fishery Management Councils, along with 
the Atlantic States and Gulf

[[Page 73131]]

States Marine Fisheries Commissions. A summary of the comments received 
on the proposed rule during the public comment period is provided below 
with NMFS's responses. All written comments submitted during the 
comment period can be found at http://www.regulations.gov by searching 
for NOAA-NMFS-2014-0100.

Implementation of the Smooth-Dogfish Specific Provisions of the Shark 
Conservation Act

    Comment 1: NMFS received comments in support of Alternative A1, 
which would not implement the smooth dogfish-specific measures in the 
Shark Conservation Act of 2010 and would require fins and tails of all 
smooth dogfish to remain naturally attached through offloading. 
Commenters felt that these exceptions to the U.S. ban on at-sea shark 
fin removal would jeopardize our nation's reputation as a shark 
conservation champion, and hurt U.S. arguments in support of Regional 
Fishery Management Organizations' adoption of fins attached 
requirements. Commenters also felt that the fins naturally attached 
method was widely recognized as the best practice for accurate data 
collection and enforcement of finning bans. Commenters felt that 
adopting a fins attached exception for smooth dogfish would undermine 
state bans on finning and would widen loopholes in certain state bans 
on the trade in shark fin products.
    Response: The Shark Conservation Act of 2010, which includes the 
smooth dogfish-specific exception, became Federal law upon Presidential 
signature on January 4, 2011. Thus, NMFS must implement the law in a 
manner that reflects Congressional intent. The Congressional provision 
clearly creates an exception that allows removal of smooth dogfish 
shark fins at sea under certain circumstances and did not leave the 
Agency discretion to forego implementation of the exception.
    Comment 2: NMFS received a comment stating that the 12 percent fin-
to-carcass ratio included in the smooth dogfish-specific provision of 
the SCA was too high and should be lower.
    Response: The 12 percent fin-to-carcass ratio is explicitly 
included in the smooth dogfish-specific provision of the SCA. Thus, 
NMFS must implement the provision as mandated. Nevertheless, some data 
support that a 12 percent fin-to-carcass ratio may be a close 
approximation of the true ratio for smooth dogfish. In the Atlantic 
States Marine Fisheries Commission (ASMFC) Shark Board briefing 
materials prepared for a May 21, 2013 meeting, the States of New Jersey 
and New Carolina provided analyses of smooth dogfish fin-to-carcass 
ratios using both landings data and direct measurements of processed 
sharks. Those analyses found a range of fin-to-carcass ratios from 7.5 
percent to 13 percent, depending on the level of processing (e.g. 
whether the belly flaps were removed, whether the tail was retained).
    Comment 3: NMFS received a large volume of comments expressing 
concern that the smooth dogfish-specific provision of the Shark 
Conservation Act allows finning of sharks. These commenters asked NMFS 
not to implement this provision and many of the comments provided 
information about the negative ecological impacts of sharks finning.
    Response: The large volume of comments opposing finning of smooth 
dogfish appears to be based on a misunderstanding on this action. 
Finning, which is the removal of shark fins and disposal of the carcass 
at sea, has been prohibited in Atlantic U.S. shark fisheries since 
1993, and will continue to be prohibited in all Atlantic shark 
fisheries. The exception in the Act allows for the removal of the fins 
at sea rather than requiring the sharks to be landed with their fins 
attached as the Act requires for other shark species. The fins and the 
carcasses still must be landed together.

Sub-Alternatives--Issue 1: Catch Composition

    Comment 4: NMFS received several comments, including from the 
SAFMC, MAFMC, and the States of New Jersey, North Carolina and 
Maryland, opposing the proposed sub-alternative A2-1c that smooth 
dogfish must make up at least 75 percent of the retained catch (no 
other sharks can be retained). Commenters felt that the 75 percent 
catch composition would be difficult to enforce and burdensome for 
fishermen. Some felt that the 75 percent would lead to waste and 
discarding in cases where fishermen found that their catch percentages 
did not qualify them for the at-sea processing allowance. Others 
emphasized that the smoothhound fishery is a mixed fishery, and that 
fishermen needed more flexibility if the SCA exception were to have any 
utility. NMFS also received comments that the 75 percent catch 
composition was inconsistent with ASMFC requirements and that the new 
federal requirements might push fishermen into state waters where there 
are no catch composition requirements. Commenters felt that as a 
consequence, fishermen may avoid obtaining a federal smoothhound shark 
permit, leading to less data for federal mangers. NMFS received support 
from the MAFMC and the state of New Jersey for sub-alternative A2-1b 
that would require smooth dogfish make up at least 25 percent of the 
retained catch. NMFS also received some limited support for the 75 
percent catch composition.
    Response: In the Draft EA and proposed rule, NMFS interpreted the 
phrase ``fishing for smooth dogfish'' to mean fishing with the object 
of commercially harvesting smooth dogfish, but also emphasized that the 
SCA had specified that the exception applies when an individual is 
fishing ``for'' smooth dogfish as opposed to fishing ``for'' other 
species and incidentally catching smooth dogfish or simply stating that 
it applies ``when fishing.'' We then preferred a sub-alternative that 
smoothhound sharks must make up 75 percent of the retained catch on 
board a vessel to constitute a trip fishing ``for'' smooth dogfish and 
stated that this would preclude fishermen on trips for other species 
but who incidentally catch smooth dogfish from removing smooth dogfish 
fins at sea. The catch composition threshold of 75 percent is used in 
other fisheries that interact with HMS (e.g., incidental swordfish 
catch in the squid trawl fishery) to distinguish between directed and 
incidental fisheries and NMFS felt this high level of retention was an 
appropriate way to identify those fishing ``for'' smooth dogfish.
    Based on public comments, however, it has become apparent that the 
75 percent level used in other fisheries is not appropriate in the 
smooth dogfish fishery and does not accurately reflect fishing 
practices in that fishery. To verify the feedback from commenters, NMFS 
reviewed data on the mixed nature of the smoothhound shark fishery and 
how well catch composition reflects the fishery and discovered that, as 
asserted by the commenters, the smooth dogfish fishery is far more 
mixed than NMFS assumed in the proposed rule. As a result, implementing 
a 75 percent catch composition requirement would make the exception 
largely meaningless. Thus, while NMFS' objective for the implementation 
of the smooth dogfish-specific provision of the SCA remains the same as 
described in the Draft EA, and NMFS still needs to give meaning to the 
phrase ``fishing for smooth dogfish'' as opposed to simply ``fishing,'' 
NMFS agrees with the majority of the commenters that a catch 
composition requirement of 25 percent is more appropriate. This is 
consistent with the smooth dogfish-specific provision in the SCA that 
limits the exception to those fishermen that are

[[Page 73132]]

fishing ``for'' smooth dogfish while acknowledging the need for 
enhanced flexibility in a mixed fishery. The reasons for the change 
include the four following factors, which were reflected in public 
comment on the proposed rule:
     Sink gillnet gear, the predominant gear used in the 
directed smooth dogfish fishery, often catches other species along with 
the targeted species. If a fisherman retains other legal species in an 
amount greater than 25 percent of the total retained catch, it does not 
necessarily mean that effort was not being directed on smooth dogfish, 
it could simply mean that other species were encountered in a greater 
amount than anticipated.
     Although a 75 percent catch composition is an appropriate 
indicator of target species in other HMS fisheries, such as the squid 
trawl fishery, it is not appropriate at this time in the smooth dogfish 
fishery. In the squid trawl fishery, swordfish caught in squid trawls 
can only be retained if at least 75 percent of the retained catch is 
squid, indicating that squid is the targeted fishery. In that fishery, 
the catch is predominantly squid but swordfish that are feeding on the 
squid are sometimes inadvertently caught. The smooth dogfish fishery is 
a more mixed fishery and the target species is often co-located with 
other species, resulting in less certainty of target species catch 
levels
     When fishermen decide to remove fins from smooth dogfish 
while at sea, the fins are not removed at the end of the trip. Rather, 
the fins are removed shortly after the smooth dogfish is brought on 
board in order to maintain the highest quality product. This processing 
method negates the benefits of a high catch composition requirement. 
For example: If a fishermen is directing effort on smooth dogfish and 
removing the fins as the smooth dogfish are brought on board, that 
fishermen does not know what the final catch composition will be. The 
first part of the trip could be 100 percent smooth dogfish, but if the 
catch transitions to predominantly other species, the fishermen may 
have found that he no longer meets the high catch composition 
requirement. In that case, the fisherman has two options: To either 
discard all the smooth dogfish carcasses and fins that have been 
processed or discard the non-smooth dogfish catch in an amount that 
will meet the catch composition requirement. Either way, a high catch 
composition could lead to unnecessary regulatory discards. Although 
this last example could also pertain to the preferred 25 percent catch 
composition, the lower threshold provides a greater amount of 
flexibility and reduces the instances of regulatory discards, 
consistent with National Standard 9.
     Smooth dogfish, and the fishery that targets them, closely 
follow specific water temperature gradients. Fisherman intending to 
land primarily smooth dogfish may find their gear in sub-optimal water 
temperatures leading to lower smooth dogfish catch despite the 
intention to directly target the species and resulting in a lower catch 
composition than expected.
    Comment 5: NMFS received comments that NMFS was interpreting the 
smooth dogfish-specific provisions in the SCA incorrectly because the 
provision does not specify its application to the directed or 
incidental smooth dogfish fishery and that limiting fishermen to a 
directed fishery would only serve to inflict financial hardships on 
fishermen.
    Response: The SCA does not explicitly state that it applies only to 
directed fisheries; however, the relevant SCA statutory text, (``an 
individual engaged in commercial fishing for smooth dogfish (Mustelus 
canis)'') included descriptive language such as ``engaged in'' and 
``for'' that NMFS understood to be more limiting than if the statute 
had simply said ``while fishing.'' We thus interpreted ``fishing for 
smooth dogfish'' to limit the exception to those fishing primarily for 
smooth dogfish, as reflected by the 75 percent retention requirement. 
Had Congress intended to allow all trips to remove smooth dogfish fins 
at sea, this qualifying language and emphasis on fishing ``for'' smooth 
dogfish would not have been included. As explained in the previous 
response, the final rule's lower percentage requirement for smooth 
dogfish catch composition (25 percent v. 75 percent) should address 
some of the concerns about the practicality of the proposed rule's 
catch composition requirements in light of the very mixed nature of the 
fishery, while still ensuring that the exception is limited to those 
fishing ``for'' smooth dogfish.
    Comment 6: NMFS received comments, including from the SAFMC, MAFMC, 
NCDMR, and the States of New Jersey and Maryland opposing the ``no 
other sharks on board'' provision. The commenters stated that this 
provision would be burdensome for fishermen and would lead to 
unnecessary waste and discards of other valuable shark species since it 
is a mixed, variable fishery. Others noted that NMFS is interpreting 
the smooth dogfish-specific provisions of the SCA incorrectly because 
``no other sharks on board'' is never mentioned in the statute and that 
it is inconsistent with ASMFC requirements. Additionally, NMFS received 
comments stating that a large number of common thresher sharks are 
often caught with smooth dogfish and if these species had to be 
discarded, this would be wasteful and could lead to economic impacts to 
shark fishermen.
    Response: After considering public comment, NMFS has determined 
that it is more appropriate and consistent with the SCA to implement 
Sub-Alternative A2-1e, which allows other sharks to be retained when 
removing smooth dogfish fins at seas, provided those sharks are 
maintained in a condition where the fins and tail remain naturally 
attached to the carcass through landing. This measure is included in 
the new sub-alternative based on public comment and additional 
analyses, and in recognition that a prohibition on having other sharks 
on board would likely increase regulatory discards, contrary to 
National Standard 9. The smooth dogfish fishery is more mixed than 
previously thought, and other sharks, particularly spiny dogfish and 
common thresher sharks, make up a portion of the catch and contribute 
considerable revenue to fishermen participating in the smooth dogfish 
fishery. Under the new preferred sub-alternative, fishermen would not 
have to choose whether to land smooth dogfish with the fins removed or 
another species of shark. This is a change from the proposed rule, 
which would have prohibited retention of other sharks when removing the 
fins from smooth dogfish at sea. As proposed, a fisherman who wanted to 
remove fins of smooth dogfish at sea would have had to discard all non-
smooth dogfish sharks even if they were dead and were otherwise legal 
to retain based on species, size, and permits. Alternatively, as 
proposed, a fisherman could decide to retain non-smooth dogfish sharks 
and discard any smooth dogfish carcasses and fins that had already been 
processed. In either situation, as proposed, dead discards would likely 
increase, given the mixed catches in the smooth dogfish fishery.
    Allowing other sharks onboard is consistent with the objective of 
Amendment 9 to narrowly focus the at-sea fin removal allowance for the 
smooth dogfish fishery and would not undermine the enforcement of the 
limited smooth dogfish exception or impact the conservation of non-
smooth dogfish sharks because smooth dogfish carcasses can be readily 
differentiated from other non-smoothhound shark carcasses by the 
presence of a pre-dorsal ridge. As a practical matter, smooth dogfish 
and other smoothhound species

[[Page 73133]]

are indistinguishable in the field. But geographically, smooth dogfish 
largely are the only smoothhound species found in the Atlantic, which 
is the only place where smooth dogfish fins can be removed, thus 
largely alleviating that identification concern. Under the new 
preferred sub-alternative, other sharks would be allowed on board while 
removing smooth dogfish fins at sea as long as the fins of non-smooth 
dogfish sharks remain naturally attached through offloading as 
currently required. NMFS will monitor all shark catches and discards 
and dead discards to ensure the conservation of all shark species and 
will take the additional action, as necessary, to address any 
conservation or management issues that may arise.

Sub-Alternatives--Issue 2: State Fishing Permit

    Comment 7: NMFS received several comments, including from the MAFMC 
and the States of New Jersey and Maryland, supporting the preferred 
Sub-Alternative A2-2b to require any state commercial fishing permit 
appropriate for the retention of smoothhound sharks when removing 
smooth dogfish fins at sea. Some of these comments noted the non-
preferred sub-alternative, which would require a smoothhound-specific 
state commercial fishing permit, could require new regulations and may 
necessitate cost recovery of permit administration.
    Response: NMFS agrees that requiring a smoothhound-specific state 
fishing permit could be burdensome to states and fishermen. In the 
Draft EA and proposed rule, NMFS asked for comment on this issue, 
particularly from the states that would need to develop and administer 
a smoothhound-specific permit. The states that commented on this issue 
were unanimously opposed to a smoothhound-specific permit and favored 
the preferred Sub-Alternative A2-2b. For these reasons, NMFS will 
implement Sub-Alternative A2-2b as proposed.

Sub-Alternatives--Issue 3: Geographic Applicability

    Comment 8: NMFS received comments, including from the MAFMC and the 
State of Florida, in support of the preferred Sub-Alternative A2-3b to 
apply the exception for smooth dogfish along the Atlantic Coast and not 
to Florida's coast in the Gulf of Mexico. Conversely, NMFS also 
received a comment stating that the exception should be applicable in 
the Gulf of Mexico so that the historical boundaries between the Gulf 
and South Atlantic Councils are honored and the State of Florida can 
manage the fishery in a balanced way.
    Response: As a practical matter, smooth dogfish and other 
smoothhound species are indistinguishable in the field. The best 
available scientific information indicates that smooth dogfish are the 
predominant smoothhound shark species along the Atlantic coast (only a 
handful of Florida smoothhound have ever been recorded in the Atlantic 
and those have been near southern Florida). In the Gulf of Mexico, 
however, there are at least three different smoothhound species, with 
no practical way to readily distinguish among them. By limiting the 
exception to the Atlantic region, as specified at Sec.  635.27(b)(1), 
this sub-alternative will ensure that the exception only applies where 
the population is almost entirely smooth dogfish, reducing 
identification problems and inadvertent finning violations. 
Furthermore, the State of Florida found the preferred sub-alternative 
limiting the exception to the Atlantic to be consistent with the 
Florida Coastal Management Program.

Commercial Quota Adjustment for the Smoothhound Shark Fishery

    Comment 9: Multiple commenters, including the SAFMC, the States of 
Maryland, New Jersey, Georgia, and the Commonwealth of Virginia, 
suggested that none of the landings-based methodologies should be used 
to establish a smoothhound shark quota. Instead, NMFS should base the 
quota on the SEDAR 39 smoothhound shark stock assessment that was 
underway at that time, and which was proposed as an alternative, 
although the results had not yet been finalized at the time of proposed 
rule publication. NMFS also received comments opposing the preferred 
alternative B3, establishing a smoothhound quota equal to the maximum 
annual landings from 2004-2013 plus two standard deviations because 
some commenters thought this quota was too high and seemed contrary to 
a risk averse approach.
    Response: NMFS agrees that it is preferable to establish 
scientifically-based quotas using results from the SEDAR 39 stock 
assessments. Since publication of the proposed rule, the SEDAR 39 stock 
assessments have been completed. Based on the availability of the stock 
assessment results and public comments, NMFS no longer prefers the 
alternative to establish a landings-based quota and now is basing the 
quotas on the results of the stock assessments. Thus, NMFS is 
establishing a smoothhound shark TAC of 1,430.6 mt dw and a commercial 
quota of 1,201.7 mt dw in the Atlantic region, and a TAC of 509.6 mt dw 
and commercial quota of 336.4 mt dw in the Gulf of Mexico region, based 
on results of SEDAR 39. Section 2 of the Final EA provides a summary of 
the calculations used to determine these quotas.
    Comment 10: NMFS received a comment asking NMFS not to wait until 
the stock assessment was completed and to implement Alternative B1, the 
smoothhound quota of 715.5 mt dw established in Amendment 3 to the 2006 
Consolidated HMS FMP.
    Response: NMFS recognizes the benefits of establishing a quota to 
limit mortality in the commercial fisheries. However, based on the 
timing of both this action and the SEDAR 39 stock assessments, NMFS 
determined that establishing scientifically-based quotas using results 
of the stock assessments outweigh benefits of implementing a landings-
based quota. Since the stock assessments are now available, NMFS is 
establishing quotas based on those stock assessments.

Biological Opinion Implementation

    Comment 11: NMFS received support for the preferred alternative C4 
to establish a 24-hour soak time limit for sink gillnets and a 0.5 to 2 
hour net check requirement for drift gillnet gear. The MAFMC and State 
of New Jersey also expressed support for the preferred alternative but 
asked that the definitions of sink and drift gillnets be clarified so 
that a sink gillnet cannot be mistaken for a net that is drifting in 
the water column. The State of Maryland expressed support for 
alternative C3 (24-hour soak time for smoothhound permit holders) 
stating that net checks are not enforceable. NMFS also received 
comments suggesting that gillnet fishermen should be required to do 
both net checks and limit soak time to 24 hours. Other commenters asked 
NMFS to consider a reduced soak time because they felt that 24 hours 
was too long and would not reduce the risk of large whale interactions.
    Response: NMFS agrees that a 24-hour soak time limit for sink 
gillnets and a 0.5 to 2 hour net check requirement for drift gillnet 
gear are appropriate ways to implement the Term and Condition 4 of the 
2012 Shark BiOp. NMFS also agrees that the definitions of sink and 
drift gillnet need to be clear so as not to confuse fishery 
participants and enforcement officials. As detailed in the Final EA, 
most smoothhound shark gillnet fishermen will be required to limit soak 
times to 24 hours since they primarily use sink gillnet gear. This 
requirement will not significantly change smoothhound shark fishing

[[Page 73134]]

practices. With regard to other Atlantic shark fishermen, fishermen who 
use sink gillnet gear will be required to limit soak times to 24 hours 
and those that use drift gillnets will be required to perform net 
checks at least every 2 hours. Currently, all Atlantic shark fishermen 
that use gillnet gear to fish for or who are in possession of any large 
coastal, small coastal, or pelagic shark, regardless of gillnet type, 
are required to perform net checks at least every 2 hours (see Sec.  
635.21(e)(3)(v)). During the net checks, fishermen are required to look 
for and remove any sea turtles, marine mammals, or smalltooth sawfish. 
In the 2012 Shark BiOp, the requirement to use either net checks or the 
24-hour set limitation was determined to ensure that any incidentally 
taken ESA-listed species are detected and released in a timely manner, 
reducing the likelihood of mortality. As such, NMFS has determined that 
this alternative will likely have short and long-term minor beneficial 
ecological impacts on protected resources because it will implement one 
of the Terms and Conditions of the 2012 Shark BiOp to minimize impacts 
on protected resources. Because this alternative complies with the 2012 
Shark BiOp, has beneficial ecological impacts to protected species, and 
allows all smoothhound shark gillnet fishermen to continue current 
fishing practices, NMFS will implement soak time limits for sink 
gillnets and net checks for drift gillnets, as proposed, in the final 
rule.
    Comment 12: NMFS received a comment stating that NMFS has not 
received authorization of the incidental take of endangered large 
whales that may result due to the operation of the fishery. The comment 
stated that without incidental take of endangered whales authorized 
under both the MMPA and ESA, federal management violates those laws. 
The commenter stated that NMFS must acquire take authorization under 
the MMPA section 101(a)(5)(E) for the expected whale takes associated 
with the smoothhound fishery and that NMFS must delay Amendment 9 until 
completion of a negligible impact analysis for North Atlantic right 
whale, humpback whale and fin whale. NMFS also received comments 
stating that (1) since the completion of the BiOp, critical habitat has 
been designated for loggerhead sea turtles, which triggers the 
requirement to reinitiate consultation in the shark fishery, and (2) 
the Draft EA fails to discuss effects of the fishery on loggerhead 
critical habitat.
    Response: As required by section 7(a)(2) of the ESA, the HMS 
Management Division of NMFS Office of Sustainable Fisheries consulted 
with the NMFS Protected Resources Division (PRD) over proposed Atlantic 
shark fishery management measures in December 2009. That consultation 
was completed in 2012, and the Shark BiOp was issued in December 2012. 
The Biological Opinion concluded that the actions as proposed--
including the operation of the smoothhound fishery--were not likely to 
jeopardize the continued existence of Atlantic sturgeon, smalltooth 
sawfish or any species of ESA-listed large whales or sea turtles.
    Section 9 and regulations implementing section 4(d) of the ESA 
prohibit the ``take'' or incidental take of listed species without an 
exemption. Under the terms of Section 7(b)(4) and Section 7(o)(2), 
otherwise prohibited take that is incidental to and not intended as 
part of the agency action may be permitted if it complies with 
reasonable and prudent measures (RPMs) and terms and conditions of an 
incidental take statement (ITS). Two RPMs were included in the 2012 
Shark BiOp to minimize the effects of the action on sea turtles, 
smalltooth sawfish, and Atlantic sturgeon by the smoothhound and 
Atlantic shark fisheries and to monitor the level of incidental take: 
(1) Minimize the Potential Effects to Sea Turtles, Smalltooth Sawfish, 
Atlantic Sturgeon and Marine Mammals, and (2) Monitor the Frequency and 
Magnitude of Incidental Take. One remaining term and condition will be 
implemented in this final rule and will require gillnet fishermen to 
conduct net checks and limit gillnet soak times mitigating or reducing 
interactions with protected species.
    Since finalizing the 2012 BiOp, NMFS issued a final determination 
to list four separate DPSs of the scalloped hammerhead shark (Sphyrna 
lewini) under the ESA (79 FR 38214, July 3, 2014). The DPSs are Central 
and Southwest Atlantic, Indo-West Pacific, Eastern Atlantic, and 
Eastern Pacific. The Eastern Atlantic and Eastern Pacific DPSs are 
listed as endangered, and the Central and Southwest Atlantic and the 
Indo-West Pacific DPSs are listed as threatened. NMFS determined that 
each of the DPSs was significant and distinct based on genetic, 
behavioral, and physical factors, and in some cases, differences in the 
control of exploitation of the species across international boundaries. 
On August 27, 2014, NMFS published a final rule to list the following 
20 coral species as threatened: Five in the Caribbean, including 
Florida and the Gulf of Mexico (Dendrogyra cylindrus, Orbicella 
annularis, Orbicella faveolata, Orbicella franksi, and Mycetophyllia 
ferox); and 15 in the Indo-Pacific (Acropora globiceps, Acropora 
jacquelineae, Acropora lokani, Acropora pharaonis, Acropora retusa, 
Acropora rudis, Acropora speciosa, Acropora tenella, Anacropora 
spinosa, Euphyllia paradivisa, Isopora crateriformis, Montipora 
australiensis, Pavona diffluens, Porites napopora, and Seriatopora 
aculeata). Two Caribbean species currently listed as threatened 
(Acropora cervicornis and Acropora palmata) still warranted listing as 
threatened. The Central and Southwest Atlantic DPS of scalloped 
hammerhead shark and the seven Caribbean species of coral occur within 
the boundary of Atlantic HMS commercial and recreational fisheries.
    On October 30, 2014, based on the new listings, NMFS requested re-
initiation of ESA section 7 consultation on the continued operation and 
use of HMS gear types (bandit gear, bottom longline, buoy gear, 
handline, and rod and reel) and associated fisheries management actions 
in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS has 
preliminarily determined that the ongoing operation of the fisheries is 
consistent with existing biological opinions and is not likely to 
jeopardize the continued existence of the Central and Southwest DPS of 
scalloped hammerhead sharks or the threatened coral species or result 
in an irreversible or irretrievable commitment of resources which would 
foreclose formulation or implementation of any reasonable and prudent 
alternative measures for these species.
    Regarding marine mammals, the final 2014 MMPA List of Fisheries 
classified the southeastern Atlantic shark gillnet fishery as Category 
II (occasional serious injuries and mortalities). The southeastern Mid-
Atlantic and Gulf of Mexico shark BLL shark fishery is classified as 
Category III (remote likelihood or no known serious injuries or 
mortalities). Commercial passenger fishing vessel (charter/headboat) 
fisheries are subject to Section 118 and are listed as a Category III 
fishery. This action would not significantly increase fishing effort 
rates, levels, or locations or fishing mortality. The preferred 
alternatives would not increase effort because the smoothhound quotas 
are based on the most recent smoothhound shark stock assessments (SEDAR 
39). In addition, final management measures are not expected to alter 
interactions with protected species.

[[Page 73135]]

Atlantic Shark Gillnet Vessel Monitoring System Requirements

    Comment 13: NMFS received support for the preferred alternative of 
requiring directed shark permit holders with gillnet gear on board to 
use VMS only in the Southeast U.S. Monitoring Area, including from the 
States of North Carolina, New Jersey, and Maryland, and the MAFMC. NMFS 
also received comments preferring the status quo stating that VMS 
should be required regardless of where the vessel is fishing.
    Response: Currently, under Federal HMS regulations, Atlantic shark 
gillnet fishermen are required to use VMS at certain times of the year 
regardless of where they are fishing. However, per 50 CFR 
229.32(h)(2)(i), the implementing regulations for the Atlantic Large 
Whale Take Reduction Plan (ALWTRP), Atlantic shark gillnet fishermen 
are only required to have VMS if they are fishing in the Southeast U.S. 
Monitoring Area. Because NMFS has determined that VMS is not necessary 
for Atlantic shark gillnet fishermen in the other ALWTRP restricted 
areas through the implementation of the ALWTRP regulations, NMFS 
believes it is best to maintain consistency with these regulations. 
Maintaining consistency between the Atlantic HMS and ALWTRP regulations 
will reduce confusion, help fishermen comply with these regulations 
more easily, and will avoid unnecessary economic burdens on shark 
fishery participants.

Previously Adopted Smoothhound Shark Measures in Amendment 3 and the 
HMS Trawl Rule

    Comment 14: NMFS received a comment stating that smoothhound sharks 
should be managed by the Regional Fishery Management Councils in 
cooperation with ASMFC.
    Response: As detailed in Amendment 3 to the 2006 Consolidated 
Atlantic HMS FMP, smoothhound sharks are ``oceanic sharks'' as defined 
by the Magnuson-Stevens Act and are subject to management by the 
Secretary of Commerce under that Act. Please refer to Amendment 3 to 
the 2006 Consolidated Atlantic HMS FMP for a detailed explanation of 
why smoothhound sharks are appropriately subject to Federal management.
    Comment 15: NMFS received a comment stating that the Federal 
smoothhound permit could trigger an increase in directed smooth dogfish 
effort. A comment was also received suggesting that the fishery, once 
permitted, should not be open access and that a control date should be 
set to discourage new entrants.
    Response: Based on the nature of the fishery, which is labor-
intensive and high-volume, additional management burdens such as permit 
requirements are unlikely to result in an increase in effort. In fact, 
a slight reduction is more likely. Since effort increases are not 
expected, NMFS does not believe that introducing a limited access 
permit in this fishery is necessary at this time. Nevertheless, this 
action will implement scientifically-based quotas and landings will be 
closely monitored to ensure that total mortality does not exceed 
scientifically-determined limits. If, in fact, directed smooth dogfish 
effort increases, protections will be in place to ensure that fishing 
pressure does not exceed sustainable levels while NMFS considers if 
additional measures are necessary.
    Comment 16: NMFS received a comment from the State of Maryland 
stating that they are concerned about the measure to close the fishery 
when 80 percent of the smoothhound quota has been caught. They feel 
that this measure may limit access to some states later in the year. 
The State of Maryland recommends working with the other Atlantic states 
to close each state's smoothhound fishery once 80 percent of the 
state's allocation has been harvested.
    Response: In all quota-managed Atlantic shark fisheries, NMFS 
closes the applicable fishery when landings reach, or are expected to 
reach, 80 percent of the quota. This measure mitigates for possible 
late reporting, which could result in quota overharvests. Based on the 
success of this measure in the other shark fisheries, NMFS prefers to 
implement the 80-percent accountability measure (AM) in the smoothhound 
shark fisheries as finalized in Amendment 3 to the 2006 Consolidated 
HMS FMP rather than risk exceeding the quotas in the smoothhound 
fisheries.
    Through Addendum II to the Coastal Sharks Interstate FMP, the ASMFC 
instituted state shares of the Federal smoothhound shark quota. 
Although this system was finalized in May 2013 before the Federal 
smoothhound shark quota was effective, Addendum II proactively divided 
the quota among several of the Atlantic states in an amount that would 
total 100 percent of the Federal quota. This agreement among the 
Atlantic states to limit each state's harvest does not impact nor 
influence the Federal quota. Although NMFS recognizes that closing the 
fishery when landings reach, or are expected to reach, 80 percent of 
the quota could prevent some states from harvesting their full state 
share of the quota per the ASMFC plan, the measure is an important and 
effective way to ensure that the sustainability of the smoothhound 
shark fishery is not jeopardized by overharvests.
    Comment 17: NMFS received a comment stating that NMFS should not 
implement the smoothhound retention allowance from the 2011 HMS Trawl 
Rule because the increased retention will lead to increased fishing 
mortality and this mortality will not be adequately quantified and 
counted against the quota. There are no reporting requirements with 
open access permits and fisheries tend to underreport incidental 
catches.
    Response: Since January 1, 2013, all commercial landings of 
Atlantic HMS, regardless of gear type or permit, are required to be 
reported on a weekly basis. Through these weekly reports, NMFS monitors 
commercial landings of Atlantic HMS, which will include smoothhound 
sharks upon implementation of this action. Trawl gear and open access 
permits do not present unique reporting concerns. Allowing smoothhound 
sharks to be landed by fishermen who use trawl gear or possess an open 
access permit does not raise unique concerns about the sustainability 
of the fishery.

General Comments

    Comment 18: NMFS received comments that Amendment 9 is too narrowly 
focused on smoothhound sharks and should instead consider all species 
managed under the 2006 Consolidated HMS FMP. The commenter asserts that 
a multispecies management approach is preferable. Furthermore, the 
commenter noted that NMFS' decision to include all HMS in a single, 
consolidated FMP effectively categorizes all HMS fisheries as a single 
``fishery.'' Thus, all National Standards (NS) under the Magnuson-
Stevens Act must be considered in the context of all HMS, not just 
smoothhound sharks and Atlantic sharks. Specifically, the commenter 
suggested that NS 3 (``To the extent practicable, an individual stock 
of fish shall be managed as a unit throughout its range, and 
interrelated stocks of fish shall be managed as a unit or in close 
coordination'') requires NMFS to optimize access and management of all 
HMS, not just smoothhound sharks and Atlantic sharks. Additionally, the 
commenter felt that NS 1, which mandates achieving optimum yield from 
each fishery, should be applied across all HMS since all HMS should be 
categorized as one single fishery.
    Response: While a multispecies management approach is advantageous 
in some instances, NMFS disagrees that

[[Page 73136]]

Amendment 9 should broadly consider all HMS (including tunas, billfish, 
and swordfish) as a single fishery. In 2006, NMFS merged all Atlantic 
HMS management into a single, consolidated FMP. In the 2006 
Consolidated Atlantic HMS FMP, NMFS noted that the interrelated nature 
of HMS fisheries and the need to consider management actions together 
necessitated merging the two existing HMS FMPs into one FMP. In 
addition, NMFS identified some adverse ramifications stemming from 
separation of the plans, including unnecessary administrative 
redundancy and complexity, loss of efficiency, and public confusion 
over the management process. It is important to note that NMFS 
consolidated management of all HMS under one FMP because of the 
interrelated nature of some of the fisheries and to streamline 
administration, not because all HMS constitute a single fishery. As 
appropriate, NMFS analyzes the impacts of management actions for each 
HMS fishery and optimizes management for all affected HMS fisheries. 
The Environmental Assessment appropriately considers any effects on the 
environment, including effects on other fish stocks or fisheries that 
may result from the actions in Amendment 9. The analyses show that the 
actions considered in Amendment 9 are unlikely to affect non-
smoothhound shark fisheries or Atlantic shark fisheries. The management 
objectives are narrowly focused on smoothhound sharks, smooth dogfish, 
and/or Atlantic sharks caught in gillnet gear, the predominant gear 
type used in the directed smoothhound shark fishery. None of the 
fisheries considered in this action are likely to encounter other non-
smoothhound shark or Atlantic shark in large numbers. Billfish, 
swordfish, tunas, and pelagic sharks are unlikely to co-occur with the 
smoothhound sharks nor can swordfish or tunas be retained if caught in 
gillnet gear. The one exception is the measure to establish an 
effective date for the 2011 HMS Trawl Rule. Trawl gear does have the 
potential to interact with a variety of HMS, including smoothhound 
sharks, Atlantic sharks, and swordfish. The 2011 HMS Trawl rule, 
recognizing the potential interaction between trawl gear and some HMS, 
considered an allowance for the limited retention of incidentally 
caught swordfish and smoothhound sharks. As such, that action 
considered impacts and explicitly optimized access to affected HMS. 
With respect to consistency with NS 1 and 3, each HMS management action 
considers all National Standards in the context of the affected HMS. 
For detailed information about Amendment 9's consistency with National 
Standards, please see Section 10 of the Final EA.

Changes From the Proposed Rule (79 FR 46217, August 7, 2014)

    NMFS made several changes from the proposed rule, as described 
below.
    1. Catch Composition and ``No Other Sharks'' Requirements for 
Removing Smooth Dogfish Fins at Sea (Sec.  635.30(c)(5)(iii)). The SCA 
has provisions related to the removal of smooth dogfish fins while at 
sea that apply when an individual is fishing ``for'' smooth dogfish. 
Thus, the proposed rule considered sub-alternatives to apply the 
exception only to those fishing with the object of commercially 
harvesting smooth dogfish by focusing on catch composition. This final 
rule is not implementing the preferred catch composition sub-
alternative (75 percent of retained catch must be smooth dogfish), but 
another sub-alternative (25 percent smooth dogfish) that had been 
discussed in the proposed rule and analyzed in the draft EA.
    NMFS received numerous public comments that the 75 percent catch 
composition requirement did not adequately reflect the mixed nature of 
the smooth dogfish fishery and would lead to excessive dead discards. 
Based on this public comment, NMFS reconsidered the 75 percent smooth 
dogfish requirement, and determined that it does not properly reflect 
fishing ``for'' smooth dogfish. According to public comment, fishermen 
that fish for smooth dogfish often encounter and retain other species 
of fish. NMFS verified this by evaluating data from vessel trip reports 
(VTR). On trips that landed smooth dogfish caught in sink gillnet gear 
between 2003 and 2014, smooth dogfish only made up 36 percent of the 
total retained catch while other species such as croaker, bluefish, 
monkfish, and spiny dogfish made up the remainder. See Final EA at 
Section 3.4.1 for further detail. If NMFS retained the 75 percent 
requirement, then this could result in dead discards as well as lost 
revenues from those species. The 25 percent requirement adopted in the 
final rule better reflects fishing ``for'' smooth dogfish, and is 
within the range of alternatives considered and analyzed in the 
proposed rule.
    Related to the catch composition change and concern about discards, 
this final rule also makes a change from the proposed rule by allowing 
retention of other shark species provided that their fins remain 
naturally attached to the carcass through offloading. This measure is 
included based on public comment and additional analyses and 
recognizing that a prohibition on having other sharks on board would 
likely increase regulatory discards. Specifically, additional analyses 
indicate that the smooth dogfish fishery is more mixed than previously 
thought, and that other sharks, particularly spiny dogfish and common 
thresher sharks, make up a portion of the catch and revenue for 
fishermen also fishing for smooth dogfish. Given that fishermen process 
smooth dogfish as they are brought on board, including removing the 
fins where allowable, the proposed rule approach would have forced 
fishermen to choose whether to land smooth dogfish with the fins 
removed (and discard the other species) or land the other species of 
shark with the fins attached and discard the smooth dogfish with their 
fins removed at sea. As proposed, a fisherman who wanted to remove 
smooth dogfish fins at sea would not have been able to retain non-
smooth dogfish sharks even if those sharks were dead and otherwise 
legally retainable based on species, size, and permits. In either 
situation, as proposed, dead discards would likely have increased given 
the mixed catches in the smooth dogfish fishery. Thus, other sharks 
will be allowed on board when smooth dogfish fins have been removed at 
sea as long as the fins of the non-smooth dogfish sharks remain 
naturally attached through offloading, as is currently required.
    Allowing other sharks on board should not raise enforcement 
concerns or impact the conservation of non-smooth dogfish sharks 
because smooth dogfish carcasses can be readily differentiated from 
other shark carcasses by the presence of a pre-dorsal ridge. While 
other ``ridgeback sharks'' have an interdorsal ridge, smooth dogfish 
are the only shark species in the Atlantic that have a pre-dorsal 
ridge. We will work with the Office of Law Enforcement to ensure that 
they are aware of this identifying feature and will update outreach 
information for shark identification including relevant workshops as 
appropriate to make permitted shark fishermen and dealers aware of the 
distinction. NMFS will also continue to monitor all shark catches and 
discards and take additional action, if necessary to address non-
compliance.
    The changes in this final rule are consistent with the conservation 
and management objectives of the Magnuson-Stevens Act and Amendment 9 
and the SCA. These changes will not impact the conservation of smooth 
dogfish or other sharks because landings of these species, regardless 
of catch

[[Page 73137]]

composition percentage, will be capped at or under the commercial quota 
through AMs and/or closures. These changes thus will not have an effect 
on the status of these stocks, nor are other adverse environmental 
impacts anticipated. They will also provide for a flexible, profitable, 
and sustainable smooth dogfish fishery.
    2. Atlantic and Gulf of Mexico Regional Commercial Smoothhound 
Shark Quotas (Sec.  635.27(b)(1)(xi)). NMFS proposed a smoothhound 
shark quota equal to the maximum annual landings from 2004-2013 plus 
two standard deviations (1,739.9 mt dw) using commercial landings data 
in the absence of a stock assessment and methodology outlined in 
Amendment 3. At that time, NMFS anticipated that the SEDAR 39 stock 
assessment for smoothhound sharks would be completed in 2014. 
Consequently, the proposed rule discussed, and the draft EA analyzed, a 
quota alternative that would ``implement a TAC and smoothhound shark 
quota(s) consistent with the results of the 2014 smoothhound shark 
stock assessment if the results become available before publication of 
the final rule for this action.'' (See Alternative B4 in the Draft EA 
for Amendment 9). The proposed rule also stated that ``[t]he 2014 
smoothhound shark stock assessment could separate one or more of the 
stocks into regional stocks between the Atlantic and Gulf of Mexico,'' 
and that for the purposes of the environmental analyses, ``NMFS assumes 
one overarching quota but these alternatives and analyses could apply 
to multiple regions as well.''
    During the public comment period on the proposed rule and draft EA, 
commenters expressed concern about implementing a smoothhound shark 
commercial quota based on historical landings, and requested that NMFS 
wait for SEDAR 39 to be completed. Based on these comments, in this 
final rule, NMFS is implementing region-specific commercial quotas 
based on SEDAR 39. Specifically, this final rule establishes an overall 
TAC of 1,940.2 mt implemented as follows: An Atlantic regional 
smoothhound shark TAC of 1,430.6 mt dw with a commercial quota of 
1,201.7 mt dw, and a Gulf of Mexico regional smoothhound shark TAC of 
509.6 mt dw with a commercial quota of 336.4 mt dw. Although the TAC 
identified in the final rule is inclusive of sources of mortality other 
than a commercial quota (which is thus necessarily less than the TAC), 
the overall TAC in the final rule is only 201 mt more than the 1,739.9 
mt dw commercial quota from the proposed rule. Thus, establishing a TAC 
of this level does not raise concerns about requiring additional 
environmental analyses or additional regulatory action, which may have 
been the case if the stock assessment had identified a significantly 
greater allowable TAC (and resultant commercial quota) than those 
anticipated and analyzed in the proposed rule. The proposed rule 
presented and analyzed an alternative that anticipated the stock 
assessment would determine that ``the commercial smoothhound shark 
quota should be set at approximately equal to or greater than 1,739.9 
mt dw.'' As acknowledged in the EA, even with a higher quota, effort is 
likely to remain the same relative to current effort. Thus the 
ecological, economic and social impacts of quota establishing a quota 
greater than 1,739.9 mt would be within the range analyzed in the Draft 
EA. In the final rule, the combined regional commercial quotas (1,538.1 
mt) are twelve percent less than the original proposed overall quota 
(1,739.9 mt) but higher than recent annual commercial landings. Both 
the commercial quotas and the overall TAC in this final rule are within 
the range of actions considered in the proposed rule and analyzed in 
the draft EA.
    With regard to the regional quota approach, in the Draft EA, NMFS 
acknowledged that the stock could be split between two regions based on 
the SEDAR 39 stock assessments and that the analyses performed for one 
over-arching quota could apply to multiple regions. Based on 
information supplied during the Data Workshop for SEDAR 39, including 
tagging data, the stock assessment scientists decided to split 
smoothhound sharks into two regional stocks, with smooth dogfish in the 
Atlantic and smooth dogfish, Florida smoothhound, and Gulf smoothhound 
in the Gulf of Mexico. This regional split, however, does not affect 
the impact analyses detailed in the Draft EA under Alternative B4, 
scenario 4. As noted in Section 3.4 of the Draft EA and as confirmed in 
the SEDAR 39 stock assessments, the smoothhound shark fishery primarily 
occurs in the Mid-Atlantic region and is composed entirely of smooth 
dogfish catch. In the Gulf of Mexico region, only a very small, 
negligible, number of commercial landings occur and there is no 
commercial fishery. Thus, the Draft EA Alternative B4 quota analyses 
were informed entirely by data from the Atlantic region including catch 
location, price data, landings data, and fishery operations. If NMFS 
applied the single over-arching quota analyses to regional smoothhound 
shark quotas at the Draft stage, there would have been no information 
available for the Gulf of Mexico and, with no commercial fishery in 
that region, a finding of neutral impact. In the Atlantic region where 
the fishery is located, all impacts detailed in the Draft EA would 
apply because all data, including catch location, price data, landings 
data, and fishery operations, came from the Atlantic. Furthermore, the 
Atlantic smoothhound shark stock assessment would not have resulted in 
any new impacts because the assessment found current harvest levels and 
effort are sustainable with no changes required. In summary, the impact 
analyses detailed in the Draft EA under Alternative B4, scenario 4 are 
equally applicable to two regional quotas as to one over-arching quota. 
The changes in this final rule are consistent with the conservation and 
management objectives of the Magnuson-Stevens Act and Amendment 9 and 
based on the best scientific information available. Implementing TACs 
based on the stock assessment results would ensure continued 
sustainable harvest of smoothhound sharks in the Atlantic and Gulf of 
Mexico regions and increase the likelihood of maintaining healthy 
smoothhound shark stocks in both regions.
    3. Administrative changes (Sec. Sec.  635.2, 635.7(g)). NMFS is 
making minor clarifications to the drift and sink gillnet definitions 
at Sec.  635.2 to indicate that drift gillnets typically are 
``floating'' in the water column and that sink gillnets are fished on 
or near the ``ocean'' bottom and can have weights ``and/or'' anchors. 
Additionally, NMFS is changing the administrative processes by which 
vessels are selected for at-sea observer coverage at Sec.  635.7(g). 
The changes were made, in part, based on consultation with the 
Northeast and Southeast Observer Programs so that smoothhound shark 
observer selection is consistent with both programs. The administrative 
changes to this section should not have any practical effect; rather, 
they will ensure that the selection processes currently in place may 
continue.
    4. Administrative Additions (Sec.  635.19(d)). NMFS is adding 
language to Sec.  635.19(d) to indicate that trawl gear is an 
authorized gear for the capture and retention of smoothhound sharks 
subject to the restrictions specified in Sec.  635.24(a)(7). Regulatory 
text to authorize retention of smoothhound sharks caught in trawl gear 
was added to other sections of Sec.  635, including Sec.  635.24(a)(7), 
and was discussed in the proposed rule but was inadvertently omitted 
from this part of the regulatory text itself. No substantive changes 
will occur as a result.

[[Page 73138]]

Commercial Fishing Season Notification

    Pursuant to the measures being implemented in this final rule, the 
2016 base quotas for smoothhound sharks in the Atlantic and Gulf of 
Mexico regions would be 1,201.7 mt dw and 336.4 mt dw, respectively. 
The fishing season for the smoothhound shark fishery will open on 
January 1, 2016.

Classification

    The AA has determined that this final rule is consistent with the 
2006 Consolidated Atlantic HMS FMP and its amendments, the Magnuson-
Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the Initial Regulatory Flexibility 
Analysis (IRFA), and a summary of the analyses completed to support the 
action. The full FRFA and analysis of economic and ecological impacts 
are available from NMFS (see ADDRESSES). A summary of the FRFA follows.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
a succinct statement of the need for and objectives of the rule. 
Chapter 1 of the Final EA and the final rule fully describe the need 
for and objectives of this final rule. The purpose of this final 
rulemaking, consistent with the Magnuson-Stevens Act, the ESA, and the 
MMPA, and the 2006 Consolidated HMS FMP and its amendments, is to 
provide for the sustainable management of smoothhound sharks and 
Atlantic shark species. The management objectives are to achieve the 
following: Implement the smooth dogfish-specific provisions of the SCA; 
implement smoothhound shark quotas based on the results of SEDAR 39; 
implement Term and Condition 4 of the 2012 Shark BiOp related to 
gillnet impacts on ESA-listed species; and revise Atlantic shark 
gillnet VMS regulations in compliance with the ALWTRP, per the MMPA.
    Section 604(a)(2) of the RFA requires a summary of the significant 
issues raised by the public comments in response to the IRFA and a 
summary of the assessment of the Agency of such issues, and a statement 
of any changes made in the rule as a result of such comments. NMFS 
received many comments on the proposed rule and the Draft EA during the 
public comment period. A summary of these comments and the Agency's 
responses, including changes as a result of public comment, are 
included above. NMFS did not receive comments specifically on the IRFA.
    Section 604(a)(4) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
The small business size standard for Finfish Fishing is $ 20.5 million, 
for Shellfish Fishing is $5.5 million, and for Other Marine Fishing is 
$7.5 million. See 79 FR 33647 (June 24, 2014). Under any of these 
standards, all Atlantic HMS permit holders subject to this rulemaking 
would be considered small entities.
    NMFS does not have exact numbers on affected commercial fishermen. 
The smoothhound shark commercial permit has not yet been established, 
so NMFS does not know how many smoothhound shark fishermen will be 
impacted. An annual average of 169 vessels reported retaining smooth 
dogfish through VTR from 2003-2014. This is NMFS' best estimate of 
affected smoothhound shark fishermen.
    Additionally, while the retention of sharks in Federal waters 
requires one of two limited access commercial shark permits, these 
permits do not specific gear type, including gillnets. For this reason, 
NMFS does not know the exact number of affected shark gillnet 
fishermen. As of May 21, 2015, there are 208 directed shark and 253 
incidental shark permit holders. Logbook records indicate that there 
are usually about 18 Atlantic shark directed permit holders that use 
gillnet gear in any year. However, the universe of directed permit 
holders using gillnet gear can change from year to year and could 
include anyone who holds an Atlantic shark directed permit.
    As of May 21, 2015, there are 97 Atlantic shark dealers. These 
dealers could be affected by these measures to varying degrees. Not all 
of these dealers purchase smoothhound sharks and those that do are 
concentrated in the Mid-Atlantic region. NMFS will know more about the 
number of affected dealers when smoothhound reporting requirements 
become effective. Similarly, not all of these dealers purchase Atlantic 
sharks caught with gillnet gear. The number is likely low and is 
concentrated in Florida and the Gulf of Mexico.
    Section 604(a)(5) of the RFA requires Agencies to describe any new 
reporting, record-keeping and other compliance requirements. The 
Federal commercial smoothhound shark permit requirement analyzed in 
Amendment 3 will become effective upon the effective date of this rule. 
NMFS submitted a PRA change request to The Office of Management and 
Budget (OMB) to add this permit to the existing HMS permit PRA package 
(OMB control number 0648-0327). OMB subsequently approved the change 
request to add the Federal commercial smoothhound shark permit to the 
HMS permit PRA package in May 2011. In November 2015, NMFS submitted a 
revision to transfer the previously approved commercial smoothhound 
shark permit from the HMS permit PRA package (OMB Control Number 0648-
0327) to the Southeast Regional Office (SERO) permit PRA package (OMB 
Control Number 0648-0205). That request is still pending approval. Once 
OMB approves the request, NMFS will issue a notice in the Federal 
Register announcing the approval of the information collection 
requirements and the availability of applications for the commercial 
smoothhound shark permit. This final rule contains a collection-of-
information requirement subject to the Paperwork Reduction Act (PRA) 
and which has been approved by OMB under OMB Control number 0648-0372. 
Public reporting burden will be reduced under the modified VMS 
requirements under this final rule. The burden estimate burden will be 
reduced by this rule, but the changes will be requested as part of the 
2016 extension, at which time the estimate of the burden change will be 
more accurate.
    The RFA requires a description of the steps the Agency has taken to 
minimize any significant economic impact on small entities consistent 
with the stated objectives of applicable statutes, including a 
statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and the reason that each one of 
the other significant alternatives to the rule considered by the Agency 
that affect small entities was rejected. These impacts are discussed 
below and in the FRFA for Amendment 9. Additionally, the RFA (5 U.S.C. 
603 (c)(1)-(4)) lists four general categories of ``significant'' 
alternatives that could assist an agency in the development of 
significant alternatives. These categories of alternatives are: 
Establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; clarification, consolidation, or simplification of compliance 
and reporting requirements under the rule for such small entities; use 
of performance rather than design standards; and, exemptions from 
coverage of the rule for small entities.
    In order to meet the objectives of this rule, consistent with 
Magnuson-Stevens Act and ESA, we cannot exempt small entities or change 
the reporting requirements only for small entities because all the 
entities affected are

[[Page 73139]]

considered small entities. Thus, there are no alternatives discussed 
that fall under the first 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 rulemaking and 
provided the rationale for identifying the preferred alternative to 
achieve the desired objective.
    The alternatives considered and analyzed are described below. The 
FRFA assumes that each vessel will have similar catch and gross 
revenues to show the relative impact of the final action on vessels.

Alternatives To Implement the Smooth Dogfish-Specific Provisions of the 
Shark Conservation Act of 2010

    With regard to the implementation of the SCA, NMFS considered two 
alternatives. Alternative A1, which would not implement the smooth 
dogfish-specific provisions of the SCA and would instead implement the 
fins-attached requirement finalized in Amendment 3, and Alternative A2, 
which would implement the smooth dogfish-specific provisions of the SCA 
and has sub-alternatives that address the specific elements of the of 
the smooth dogfish-specific provisions.
    Alternative A1 would not implement the smooth dogfish-specific 
provisions of the SCA and would require all smooth dogfish to be landed 
with fins naturally attached. This alternative would change current 
fishing practices since smooth dogfish caught in the directed and 
incidental fisheries are fully processed while at sea. As a result, 
this Alternative A1 would likely lead to reduced landings and a lower 
ex-vessel price because the product would not be fully processed. This 
could lead to adverse socioeconomic impacts.
    Under Alternative A2, the preferred alternative, an allowance for 
the removal of smooth dogfish fins at sea would increase efficiency in 
the smooth dogfish fishery and provide a more highly processed product 
for fishermen to sell to dealers. Quantifying the financial benefits is 
difficult because baseline effort and increases in efficiency cannot be 
calculated, but the benefit would fall somewhere between the two 
extremes of $0 and $699,364, the ex-vessel value of the entire fishery 
(Section 3.6.2). Assuming that amount is spread evenly across all 169 
vessels per year that retain smooth dogfish (Section 6.1), the benefit 
to individual vessels would be $4,138. However, vessels and trips 
retain smooth dogfish in widely varying amounts, thus, this per vessel 
estimate may not provide an accurate picture of individual revenues.
    Supporting entities, such as bait and tackle suppliers, ice 
suppliers, dealers, and other similar businesses, could experience 
increased revenue if the efficiency of fin removal at sea results in a 
higher quality product. However, while supporting businesses would 
benefit from the increased profitability of the fishery, they do not 
solely rely on the smooth dogfish fishery. In the long-term, it is 
likely that changes in the smooth dogfish fishery would not have large 
impacts on these businesses.

Catch Composition Sub-Alternatives

    Under Sub-Alternative A2-1a, smooth dogfish could make up any 
portion of the retained catch on board provided that no other sharks 
are retained. This sub-alternative would authorize smooth dogfish 
fishermen to retain any non-shark species of fish while still availing 
themselves of the at-sea fin removal allowance. Smooth dogfish are 
often caught incidentally during other fishing operations, thus, this 
sub-alternative would allow fishermen to maximize the profitability of 
each trip and allow individual operators the flexibility to make 
decisions, before the trip and while on the water, as to the retained 
catch composition that would maximize ex-vessel revenues. Under this 
alternative, fishermen could remove smooth dogfish fins at sea during 
any type of trip including those trips that are directing effort on 
other non-shark species. This alternative would maintain the current 
practice in the fishery and vessels could continue to have ex-vessel 
revenues of $699,364 per year across the entire fishery (Section 
3.6.2).
    Under Sub-Alternative A2-1b, fishermen could avail themselves of 
the at-sea fin removal allowance only if smooth dogfish comprise 25 
percent of the retained catch on board. This sub-alternative would 
authorize smooth dogfish fishermen to retain some non-shark species of 
fish while still availing themselves of the at-sea fin removal 
allowance. This sub-alternative would allow some fishermen to maintain 
the profitability of each trip and allow individual operators some 
flexibility to make decisions, before the trip and while on the water, 
as to the retained catch composition that would increase ex-vessel 
revenues. This increase in flexibility would be to a lesser extent than 
Sub-Alternative A2-1a which would not have a catch composition 
requirement, but greater than the other sub-alternatives that limit the 
fins-attached exception to higher catch composition percentages. This 
sub-alternative would decrease total ex-vessel revenues relative to the 
current level of $699,364 per year (Section 3.6.2).
    Under Sub-Alternative A2-1c fishermen could avail themselves of the 
at-sea fin removal allowance only if smooth dogfish comprise 75 percent 
of the retained catch on board. This sub-alternative would allow 
fishermen limited flexibility to maintain the profitability of each 
trip and would allow fishermen to make decisions, before the trip and 
while on the water, as to the retained catch composition that would 
increase ex-vessel revenues. While limited, the flexibility in this 
alternative would be greater than in sub-alternative A2-1d, which would 
require smooth dogfish catch composition of 100 percent. Because some 
fishermen catch smooth dogfish along with other species, this sub-
alternative could decrease the number of mixed species trips where 
fishermen could take advantage of the at-sea fin removal allowance. 
This sub-alternative would likely decrease total ex-vessel revenues 
relative to the current level of $699,364 per year.
    Sub-Alternative A2-1d would require smooth dogfish to comprise 100 
percent of the retained catch on board the vessel in order for 
fishermen to avail themselves of the at-sea fin removal allowance for 
smooth dogfish. This sub-alternative would eliminate the ability of 
mixed trips to take advantage of the at-sea fin removal, and would 
reduce flexibility in deciding which species to retain on each fishing 
trip. However, approximately 31 vessels (annual average 2003-2014) on 
directed smooth dogfish trips often only retain smooth dogfish due to 
the processing practices in place. Thus, these fishermen would not be 
impacted by a 100 percent smooth dogfish requirement and would benefit 
from the ability to remove the smooth dogfish fins at sea. This sub-
alternative would likely decrease total ex-vessel revenues relative to 
the current level of $699,364 per year.
    Sub-Alternative A2-1e, the preferred sub-alternative, would, 
similar to Sub-Alternative A2-1b, allow fishermen to avail themselves 
of the at-sea fin removal allowance only if smooth dogfish comprise 25 
percent of the retained catch on board. However, under Sub-Alternative 
A2-1e, other sharks could be retained as well, provided they are 
maintained with the fins naturally attached to the carcass. This sub-
alternative would allow some

[[Page 73140]]

fishermen to maintain the profitability of each trip and allow 
individual operators some flexibility to make decisions, before the 
trip and while on the water, as to the retained catch composition that 
would increase ex-vessel revenues. This increase in flexibility would 
be to a lesser extent than Sub-Alternative A2-1a, which would not have 
a catch composition requirement, but greater than the other sub-
alternatives that limit the fins-attached exception to higher catch 
composition percentages. This sub-alternative would decrease total ex-
vessel revenues relative to the current level of $699,364 per year 
(Section 3.6.2).

State Fishing Permit Requirement Sub-Alternatives

    Sub-Alternative A2-2a would require federal smoothhound permitted 
fishermen to obtain a smooth dogfish-specific state commercial fishing 
license in order to be able to remove smooth dogfish fins at sea. The 
requirement to obtain a smooth dogfish-specific state commercial 
fishing license may be more difficult for fishermen who are in states 
that do not have smooth dogfish-specific permits in place. This sub-
alternative would result in the increased burden on fishermen to obtain 
another permit, and depending upon the state, could result in an 
additional permit charge. Since most permits are valid for one year, 
fishermen would likely need to renew the permit each year for as long 
as they wish to retain smooth dogfish and remove the fins while at sea. 
Because not all states have smooth dogfish-specific permits, NMFS does 
not prefer this alternative.
    Sub-Alternative A2-2b, the preferred alternative, would require 
fishermen to hold any state commercial fishing permit that allows 
retention of smooth dogfish. It is likely, however, that most smooth 
dogfish fishermen already hold this type of state permit and would be 
unaffected by this requirement. This sub-alternative would likely be 
the most straightforward for regulatory compliance because the permit 
requirement would be the simpler than sub-alternative A2-2a. Thus, NMFS 
prefers this sub-alternative.

Geographic Applicability of Exception Sub-Alternatives

    NMFS considered two alternatives for Geographic Application of the 
SCA exception. Under Sub-Alternative A2-3a, the exception would apply 
along the Atlantic Coast and the Florida west coast in the Gulf of 
Mexico. As explained earlier, as a practical matter, smooth dogfish and 
other smoothhound species are indistinguishable, although smoothhound 
are distinguishable from other ridgeback sharks by the presence of a 
pre-dorsal ridge. The best available scientific information indicates 
that smooth dogfish are likely the only smoothhound shark species along 
the Atlantic coast. In the Gulf of Mexico, however, there are at least 
three different smoothhound species, with no practical way to 
distinguish among them. This sub-alternative would apply the smooth 
dogfish exception 50 nautical miles from the baseline of all the States 
that fall under the SCA definition of ``State.'' This sub-alternative 
could result in other smoothhound sharks indirectly falling under the 
exception, because they cannot be distinguished from smooth dogfish. 
NMFS does not expect any impacts because there is no commercial fishery 
for smooth dogfish in the Gulf of Mexico at this time. However, NMFS 
does not prefer this sub-alternative because, if a fishery does 
develop, species misidentification could result in enforcement action.
    Under Sub-Alternative 3b, the preferred sub-alternative, the 
exception would only apply along the Atlantic coast and not the Florida 
west coast in the Gulf of Mexico. By not extending the exception into 
the Gulf of Mexico, this sub-alternative would ensure that the SCA's 
exception to the fins-attached requirements for smooth dogfish would 
only apply along the Atlantic Coast where the population is almost 
entirely smooth dogfish, reducing identification problems and 
inadvertent finning violations. NMFS does not expect any impacts 
because, at this time, there is no commercial fishery for smooth 
dogfish in the Gulf of Mexico. NMFS prefers this sub-alternative 
because it simplifies enforcement and compliance without adverse 
impacts. This sub-alternative would not affect total ex-vessel revenues 
relative to the current level of $699,364 per year.

Smoothhound Shark Commercial Quotas

    With regard to the smoothhound quota alternatives, NMFS considered 
four alternatives. Alternative B1, which would implement the 
smoothhound shark quota finalized in Amendment 3; Alternative B2, which 
would establish a rolling quota based on the most recent five years of 
landings data; Alternative B3, which would calculate the smoothhound 
quota using the same method as in Amendment 3 but would use updated 
smoothhound landings information; and Alternative B4, which would 
establish smoothhound shark quotas that reflects the results of the 
SEDAR 39 smoothhound shark stock assessments.
    Alternative B1 would implement the quota finalized in Amendment 3 
(715.5 mt dw), which was based on highest annual landings from (1998 to 
2007) and adding two standard deviations. Current reported smoothhound 
shark landings are higher than the quota level in Alternative B1. As 
such, implementing this quota would prevent fishermen from fishing at 
current levels, resulting in lost revenues. In 2010 when landings 
peaked, total smoothhound shark landings totaled 2,688,249 lb dw (ACCSP 
data) resulting in ex-vessel revenues across the entire smoothhound 
sink gillnet fishery of $2,458,135 (2,688,249 lb of meat, 322,590 lb of 
fins). Implementation of the Amendment 3 quota (715.5 mt dw) would 
result in ex-vessel revenues of only $1,442,367 (1,577,391 lb of meat, 
189,287 lb of fins), which is $1,015,768 less than current ex-vessel 
revenues. Both of these estimates assume $1.62/lb for fins, $0.72/lb 
for meat, and a 12 percent fin-to-carcass ratio (prices based on 2014 
dealer data and fin-to-carcass ratio based on the SCA). Seventy-five 
percent of all landings in the smoothhound shark fishery come from sink 
gillnets and there are approximately 77 vessels that use sink gillnet 
gear to fish for smoothhound sharks in any given year. Assuming an 
average of 77 sink gillnet vessels fishing for smoothhound sharks, the 
quota in this alternative would result in annual ex-vessel revenues of 
$18,732 per vessel which is less than 2010 ex-vessel revenues of 
$31,923 per vessel. This is an average across all directed and 
incidental sink gillnet vessels and this individual annual vessel ex-
vessel revenue may fluctuate based on the degree to which fishermen 
direct on smoothhound sharks.
    The quota in Alternative B1 does not accurately characterize 
current reported landings of smoothhound sharks. Vessels that fish for 
smoothhound sharks likely fished opportunistically on multiple species 
of coastal migratory fish and elasmobranches, and it is unlikely that 
any sector within the fishing industry in the Northeast (fisherman, 
dealer, or processor) relies wholly upon smoothhound sharks. Longer-
term impacts are expected to be neutral given the small size of the 
fishery and the generalist nature of the sink gillnet fishery.
    Alternative B2 would establish a rolling smoothhound shark quota 
set above the maximum annual landings for the preceding five years; 
this quota would be recalculated annually to account for the most 
recent landing

[[Page 73141]]

trends within the smoothhound complex (2016 quota would be 1,729 mt dw 
based on 2010-2014 data). The 2016 quota under this alternative is 
likely to result in annual revenues of $3,485,466 (3,811,753 lb of 
meat, 457,410 lb of fins) assuming an ex-vessel price of $1.62 lb for 
fins and $0.72 lb for meat. Seventy-five percent of all landings in the 
smoothhound shark fishery come from sink gillnets and there are 
approximately 77 vessels that use sink gillnet gear to fish for 
smoothhound sharks. Assuming an average of 77 sink gillnet vessels 
fishing for smoothhound sharks, the quota in this alternative would 
result in individual vessel annual revenues of $45,266 which is more 
than 2010 ex-vessel revenues of $31,923 per vessel. This is an average 
across all sink gillnet vessels, regardless of catch levels, and this 
individual annual vessel revenue may fluctuate based on the degree to 
which fishermen direct on smoothhound sharks.
    Setting the quota above current landings levels should allow the 
fishery to continue, rather than be closed, allowing for NMFS to 
collect more information that can be used in future stock assessments. 
Alternative B2 is consistent with the intent of Amendment 3, which was 
to minimize changes to the fishery while information on catch and 
participants was collected. Because landings in the smoothhound shark 
fishery are likely underreported, it is unclear at this time whether 
the increase in reported landings is due to existing smoothhound 
fishermen reporting in anticipation of future management or increased 
effort (e.g., new entrants into the fishery). While a rolling quota 
would cover all current reporting and likely cover all underreporting 
of landings, the fishery could grow exponentially if reported landings 
continue to increase over consecutive years, possibly resulting in 
stock declines and in turn a potential loss of revenue to the fishing 
industry. The rolling quota could also lead to lower quotas in 
consecutive years if landings decrease over time. Thus, the changing 
nature of the rolling quota could lead to uncertainty in the fishery 
and could cause direct and indirect minor adverse socioeconomic impacts 
in the long term.
    Alternative B3 would create a smoothhound quota equal to the 
maximum annual landings from 2005-2014 plus two standard deviations and 
would equal 1,733.9 mt dw. This alternative would establish a 
smoothhound quota two standard deviations above the maximum annual 
landings reported over the last ten years which is the method used to 
calculate the smoothhound shark quota that was finalized in Amendment 
3. This quota would result in potential annual revenues in the entire 
fishery of $3,495,345 (3,822,556 lb of meat, 458,707 lb of fins) 
assuming an ex-vessel price of $1.62 lb for fins and $0.72 for meat. 
Seventy-five percent of all landings in the smoothhound shark fishery 
come from sink gillnets and there are approximately 77 vessels that use 
sink gillnet gear to fish for smoothhound sharks. Assuming an average 
of 77 sink gillnet vessels fishing for smoothhound sharks, the quota 
proposed in this alternative would result in individual vessel annual 
revenues of $45,394. This is an average across all sink gillnet 
vessels, regardless of catch levels, and this individual annual vessel 
revenue may fluctuate based on the degree to which fishermen direct on 
smoothhound sharks.
    At the time of publication for the Draft EA, the SEDAR 39 
smoothhound stock assessments were underway, but not yet complete. In 
anticipation that the final stock assessments could be finalized before 
this final rule, NMFS considered a range of scenarios under Alternative 
B4 to implement potential results and scenarios, recognizing that 
results beyond the scope of those analyzed could require additional 
analysis or regulatory action. The SEDAR 39 stock assessment is now 
final; thus, the scenarios considered in the Draft EA are no longer 
appropriate to consider. Rather, NMFS has analyzed the actual results 
of the stock assessments, which would establish an Atlantic smoothhound 
commercial quota of 1,201.7 mt dw and a Gulf of Mexico smoothhound 
shark quota of 336.4 mt dw. These quotas would result in annual 
revenues of $2,422,251.54 (2,649,006 lb of meat, 317,881 lb fins), 
assuming an ex-vessel price of $1.62 lb for fins and $0.72 lb for meat. 
Seventy-five percent of all landings in the smoothhound shark fishery 
come from sink gillnets and there are approximately 77 vessels that use 
sink gillnet gear to fish for smoothhound sharks. Assuming an average 
of 77 sink gillnet vessels fishing for smoothhound sharks, the quota in 
this alternative would result in individual vessel annual revenues of 
$31,458. This is an average across all sink gillnet vessels, regardless 
of catch levels, and this individual annual vessel revenue may 
fluctuate based on the degree to which fishermen direct on smoothhound 
sharks. The quotas under Alternative B4 are both consistent with the 
intent of Amendment 3, which was to minimize changes to the fishery 
while information on catch and participants was collected, while also 
implementing science-based quotas to ensure continued sustainable 
harvest of smoothhound sharks in the Atlantic and Gulf of Mexico 
regions. NMFS anticipates short-term, direct minor beneficial 
socioeconomic impacts under this alternative given the combined 
commercial quotas for the Atlantic and Gulf of Mexico regions under 
this alternative would result in increased revenues compared to the 
commercial quota under Alternative B1, though lower than those 
anticipated under Alternatives B2 or B3. These commercial quotas would 
allow the fishery to continue at the rate and level observed in recent 
years into the future without having to be shut down prematurely. Given 
that the fishery would expect to operate as it currently does, NMFS 
anticipates in the short term, indirect, minor, positive socioeconomic 
impacts for shark dealers and processor. Since this alternative 
establishes scientifically-based quotas and would result in beneficial 
socioeconomic impacts, NMFS prefers this alternative.

Biological Opinion Implementation

    In order to implement TC 4 of the 2012 Shark BiOp in the 
smoothhound shark fishery, NMFS considered 4 alternatives. The No 
Action alternative, which would not implement TC 4 of the 2012 Shark 
BiOp; alternative C2, which would require smoothhound shark fishermen 
to conduct net checks at least every 2 hours; alternative C3, which 
would require smoothhound shark fishermen to limit their gillnet soak 
time to 24 hours and those smoothhound shark fishermen that also have a 
Atlantic shark limited access permit to check their nets at least every 
2 hours; and finally, Alternative C4, which would require smoothhound 
and Atlantic shark fishermen using sink gillnet to soak their nets no 
longer than 24 hours and those fishermen using drift gillnets to check 
their nets at least every 2 hours.
    Alternative C1 would not implement the BiOp term and condition that 
would require all smoothhound shark permit holders to either check 
their gillnet gear at least every 2.0 hours or limit their soak time to 
no more than 24 hours. This alternative would likely result in short 
and long-term neutral direct socioeconomic impacts. Under Alternative 
C1, smoothhound shark fishermen would continue to fish as they do now 
and so this alternative would not have economic impacts that differ 
from the status quo. Similarly, this alternative would likely result in 
neutral short and long-term indirect

[[Page 73142]]

socioeconomic impacts since supporting businesses including dealers and 
bait, tackle, and ice suppliers would not be impacted.
    Alternative C2 would require smoothhound shark fishermen using 
gillnet gear to conduct net checks at least every 2.0 hours to check 
for and remove any protected species, and would likely result in short 
and long-term direct moderate adverse socioeconomic impacts. Some 
smoothhound shark gillnet fishermen fish multiple nets at one time or 
deploy their net(s), leave the vicinity, and return later. Alternative 
C2 would require these fishermen to check each gillnet at least once 
every 2 hours, making fishing with multiple nets or leaving nets 
unattended difficult. This would likely lead to a reduction in effort 
and landing levels, resulting in lower ex-vessel revenues. Quantifying 
the loss of income is difficult without information characterizing the 
fishery including the number of nets fished. However, limiting the 
amount of fishing effort in this manner is likely to reduce total 
landings of smoothhound sharks or, in order to keep landing levels 
high, extend the length of trips. Landings of incidentally caught fish 
species could be reduced as well, although under preferred Sub-
Alternative A2-1c, smoothhound shark fishermen that wish to remove 
smooth dogfish fins at sea could not retain other species. This 
alternative would not have a large impact on supporting businesses such 
as dealers or bait, tackle, and ice suppliers since these businesses do 
not solely rely on the smoothhound shark fishery. The smoothhound shark 
fishery is small relative to other fisheries. Thus, Alternative C2 
would likely result in short and long-term indirect neutral 
socioeconomic impacts. Alternative C2 would impact the approximately 77 
vessels that annually catch smoothhound sharks with gillnet gear 
(annual average from 2003-2014, Table 3.1).
    Alternative C3 would establish a gillnet soak time limit of 24 
hours for smoothhound shark permit holders. Under this alternative, 
fishermen holding both an Atlantic shark limited access permit and a 
smoothhound shark permit must abide by the 24 hour soak time 
restriction and conduct net checks at least every 2 hours. This 
alternative would likely result in short- and long-term direct minor 
adverse socioeconomic impacts to those smoothhound permitted fishermen 
that also have an Atlantic shark limited access permit and therefore 
would be required to check their nets at least every 2 hours. 
Currently, smoothhound shark gillnet fishermen sometimes fish multiple 
nets or leave nets unattended for short periods of time. Rarely are 
these nets soaked for more than 24 hours, thus, this alternative would 
not impact smoothhound shark gillnet fishermen that do not have an 
Atlantic shark limited access permit. Adverse socioeconomic impacts 
resulting from this alternative would likely occur to the subset of 
smoothhound shark fishermen that also hold an Atlantic shark limited 
access permit. These smoothhound shark fishermen would be at a 
disadvantage to other smoothhound shark fishermen that do not have an 
Atlantic shark limited access permit because they would be required to 
check their gillnets at least every 2 hours which is a large change in 
the way the smoothhound shark fishery currently operates. Dropping the 
Atlantic shark permit to avoid the net check requirement is unlikely to 
be feasible because Atlantic shark permits allow limited access (NMFS 
is no longer issuing new permits) and cannot be easily obtained. 
Additionally, pelagic longline fishermen are required to have an 
incidental or directed shark permit when targeting swordfish or tunas, 
even if they are not fishing for sharks, due to the likelihood of 
incidental shark catch. In practical terms, this could result in 
smoothhound shark gillnet fishermen abiding by the 2 hour net check 
requirement even if they do not fish for Atlantic sharks and only hold 
a Atlantic shark limited access permit to fish for swordfish or tunas 
(note that gillnets cannot be used to target swordfish or tunas, but 
some vessels may switch gears between trips). For this subset of 
fishermen, basing gillnet requirements on permit types could introduce 
fishing inefficiencies when compared to other smoothhound fishermen, 
likely resulting in adverse socioeconomic impacts to these fishermen. 
It is unlikely that this alternative would have a large impact on 
supporting businesses such as dealers or bait, tackle, and ice 
suppliers since these businesses do not solely rely on the smoothhound 
shark fishery. The smoothhound shark fishery is small relative to other 
fisheries. It is difficult to determine the number of fishermen that 
would be adversely affected because NMFS does not yet know which 
vessels will obtain a smoothhound shark fishing permit. However, it is 
likely that this number will be approximately equal to 169 which is the 
average annual number of vessel that retain smoothhound sharks (Section 
3.4).
    Alternative C4, the preferred alternative, would establish a soak 
time limit of 24 hours for fishermen using sink gillnet gear and a 2 
hour net check requirement for fishermen using drift gillnet gear in 
the Atlantic shark and smoothhound shark fisheries. Drift gillnets 
would be defined as those that are unattached to the ocean bottom with 
a float line at the surface and sink gillnet gear would be defined as 
those with a weight line that sinks to the ocean bottom, has a 
submerged float line, and is designed to be fished on or near the 
bottom. Alternative C4 would likely result in neutral short and long-
term direct socioeconomic impacts. Smoothhound shark fishermen, who 
typically use sink gillnets, would be required to limit soak times to 
24 hours and as discussed above, this requirement is unlikely to 
significantly alter smoothhound shark fishing practices. Drift gillnet 
fishermen, who are more likely to target Atlantic sharks rather than 
smoothhound sharks, would be required to check their nets at least 
every 2 hours, as is currently required. Thus, this alternative is 
unlikely to have any socioeconomic impacts to Atlantic shark and 
smoothhound shark fishermen because it would not change current fishing 
practices. Similarly, this alternative would likely result in neutral 
short and long-term indirect socioeconomic impacts because supporting 
businesses including dealers and bait, tackle, and ice suppliers should 
not be impacted. Alternative C4 would impact the approximately 77 
vessels that annually catch smoothhound sharks with gillnet gear 
(annual average from 2003-2014, Table 3.1). Because Alternative C4 
would have minimal economic impact but is still consistent with the 
2012 Shark BiOp, NMFS prefers this alternative.

Atlantic Shark Gillnet Vessel Monitoring System Requirements

    NMFS also considered two alternatives to streamline the current VMS 
requirements for Atlantic shark fishermen with gillnet gear on board. 
The No Action alternative would maintain the current requirement to 
have VMS on board when fishing for Atlantic sharks with gillnet 
regardless of where the vessel is fishing and alternative D2 would 
require VMS on board only for Atlantic shark fishermen using gillnet 
gear in an area specified by the ALWTRP requirements at 50 CFR 229.32.
    Alternative D1 would maintain the current requirement of requiring 
Atlantic shark permit holders fishing with gillnet gear to have VMS on 
board, regardless of where the vessel is fishing.

[[Page 73143]]

These VMS requirements were put in place as an enforcement tool for 
complying with the ALWTRP requirements set forth in 50 CFR 229.32. 
Atlantic shark gillnet fishermen are only required to have VMS if they 
are fishing in the Southeast U.S. Monitoring Area. See 50 CFR 
229.32(h)(2)(i). Purchasing and installing a VMS unit costs 
approximately $3,500, and monthly data transmission charges cost, on 
average, approximately $44.00. Because these monthly costs are 
currently incurred whenever a shark gillnet fishermen is fishing, these 
costs can affect the fishermen's annual revenues. Although the affected 
fishermen already have VMS installed, they continue to pay for 
transmission and maintenance costs, and could need to buy a new unit if 
theirs fails. It is possible that a NMFS VMS reimbursement program 
could defray part of the purchase cost, but is not certain. Thus, it is 
likely that this alternative could have short and long-term direct 
minor adverse socioeconomic impacts to fishermen due to the cost of 
purchasing and maintaining a VMS unit. While the retention of sharks in 
federal waters requires one of two limited access commercial shark 
permits, these permits do not specify gear type, including gillnets. 
For this reason, NMFS does not know the exact number of affected shark 
gillnet fishermen. As of October 11, 2014, there are 206 directed shark 
and 258 incidental shark permit holders. Logbook records indicate that 
there are usually about 18 Atlantic shark directed permit holders that 
use gillnet gear in any year. However, the universe of directed permit 
holders using gillnet gear can change from year to year and could 
include anyone who holds an Atlantic shark directed permit.
    Alternative D2, the preferred alternative, would change the gillnet 
VMS requirements and would require federal directed shark permit 
holders with gillnet gear on board to use VMS only in the vicinity of 
the Southeast U.S. Monitoring Area, pursuant to ALWTRP requirements, 
and would have short and long-term direct minor beneficial 
socioeconomic impacts. Atlantic shark gillnet fishermen fishing in the 
vicinity of the Southeast U.S. Monitoring Area would still incur the 
installation costs of the VMS, but data transmission would be limited 
to those times when the vessel is in this area. Furthermore, shark 
gillnet fishermen outside of this area that do not fish in the vicinity 
of the Southeast U.S. Monitoring Area would not need to install a VMS 
unit or, if they already have one, maintain the VMS unit or replace a 
malfunctioning one. Thus, the socioeconomic impacts from this 
alternative, while still adverse, are of a lesser degree than those 
under Alternative D1, the No Action alternative. This alternative would 
likely result in neutral short and long-term indirect socioeconomic 
impacts because supporting businesses, including dealers and bait, 
tackle, and ice suppliers, would not be impacted. While the retention 
of sharks in federal waters requires one of two limited access 
commercial shark permits, these permits do not specify gear type, 
including gillnets. For this reason, NMFS does not know the exact 
number of shark gillnet fishermen that would be affected by this 
alternative. As of October 11, 2014, there are 206 directed shark and 
258 incidental shark permit holders. Logbook records indicate that 
there are usually about 18 Atlantic shark directed permit holders that 
use gillnet gear in any year. However, the universe of directed permit 
holders using gillnet gear can change from year to year and could 
include anyone who holds an Atlantic shark directed permit. Because 
this alternative is more in line with the requirements of the ALWTRP, 
and because it would reduce socioeconomic impacts while still 
maintaining beneficial ecological impacts for protected whale species, 
NMFS prefers this alternative.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0372. Public reporting burden 
will be reduced under the modified VMS requirements under this final 
rule. The burden estimate burden will be reduced by this rule, but the 
changes will be requested as part of the 2016 extension, at which time 
the estimate of the burden change will be more accurate.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the HMS Management Division (see 
ADDRESSES) and the guide (i.e., permit holder letter) will be sent to 
all holders of permits for the Atlantic shark and smoothhound shark 
commercial fisheries. The guide and this final rule will be available 
upon request.

List of Subjects in 50 CFR Part 635

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

    Dated: November 12, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:

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


0
2. In Sec.  635.2, add definitions for ``Atlantic States,'' ``Drift 
gillnet,'' ``Sink gillnet,'' and ``Smoothhound shark(s)'' in 
alphabetical order to read as follows:


Sec.  635.2  Definitions.

* * * * *
    Atlantic States, consistent with section 803 of Public law 103-206 
(16 U.S.C. 5102), refers to Maine, New Hampshire, Massachusetts, Rhode 
Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, 
the District of Columbia, and the Potomac River Fisheries Commission, 
for purposes of applying the Shark Conservation Act exception at 50 CFR 
635.30(c)(5).
* * * * *
    Drift gillnet means a gillnet that is floating unattached to the 
ocean bottom and not anchored, secured, or weighted to the ocean 
bottom.
* * * * *
    Sink gillnet means a gillnet that is designed to be or is fished on 
or near the ocean bottom in the lower third of the water column by 
means of a weight line or enough weights and/or anchors that the bottom 
of the gillnet sinks to, on, or near the ocean bottom.
* * * * *
    Smoothhound shark(s) means one of the species, or part thereof, 
listed in section E of Table 1 in Appendix A to this part.
* * * * *

0
3. In Sec.  635.4, add paragraph (e)(4) and revise paragraph (m)(2) to 
read as follows:

[[Page 73144]]

Sec.  635.4  Permits and fees.

* * * * *
    (e) * * *
    (4) Owners of vessels that fish for, take, retain, or possess the 
Atlantic oceanic sharks listed in section E of Table 1 of Appendix A to 
this part with an intention to sell them must obtain a Federal 
commercial smoothhound permit. In addition to other permits issued 
pursuant to this section or other authorities, a Federal commercial 
smoothhound permit may be issued to a vessel alone or to a vessel that 
also holds either a Federal Atlantic commercial shark directed or 
incidental limited access permit.
* * * * *
    (m) * * *
    (2) Shark and swordfish permits. A vessel owner must obtain the 
applicable limited access permit(s) issued pursuant to the requirements 
in paragraphs (e) and (f) of this section and/or a Federal commercial 
smoothhound permit issued under paragraph (e) of this section; or an 
HMS Commercial Caribbean Small Boat permit issued under paragraph (o) 
of this section, if: The vessel is used to fish for or take sharks 
commercially from the management unit; sharks from the management unit 
are retained or possessed on the vessel with an intention to sell; or 
sharks from the management unit are sold from the vessel. A vessel 
owner must obtain the applicable limited access permit(s) issued 
pursuant to the requirements in paragraphs (e) and (f) of this section, 
a Swordfish General Commercial permit issued under paragraph (f) of 
this section, an Incidental HMS Squid Trawl permit issued under 
paragraph (n) of this section, an HMS Commercial Caribbean Small Boat 
permit issued under paragraph (o) of this section, or an HMS Charter/
Headboat permit issued under paragraph (b) of this section, which 
authorizes a Charter/Headboat to fish commercially for swordfish on a 
non for-hire trip subject to the retention limits at Sec.  635.24(b)(4) 
if: The vessel is used to fish for or take swordfish commercially from 
the management unit; swordfish from the management unit are retained or 
possessed on the vessel with an intention to sell; or swordfish from 
the management unit are sold from the vessel. The commercial retention 
and sale of swordfish from vessels issued an HMS Charter/Headboat 
permit is permissible only when the vessel is on a non for-hire trip. 
Only persons holding non-expired shark and swordfish limited access 
permit(s) in the preceding year are eligible to renew those limited 
access permit(s). Transferors may not renew limited access permits that 
have been transferred according to the procedures in paragraph (l) of 
this section.
* * * * *

0
4. Revise Sec.  635.7 to read as follows:


Sec.  635.7  At-sea observer coverage.

    (a) Applicability. NMFS may select for at-sea observer coverage any 
vessel that has an Atlantic HMS, tunas, shark, or swordfish permit 
issued under Sec.  635.4 or Sec.  635.32. When selected, vessels are 
required to take observers on a mandatory basis. Vessels permitted in 
the HMS Charter/Headboat and Angling categories may be requested to 
take observers on a voluntary basis.
    (b) Selection of vessels. NMFS will notify a vessel owner, in 
writing, by email, by phone, or in person when his or her vessel is 
selected for observer coverage. Vessels will be selected to provide 
information on catch, bycatch and other fishery data according to the 
need for representative samples.
    (c) Notification of trips. If selected to carry an observer, it is 
the responsibility of the vessel owner to arrange for and facilitate 
observer placement. The owner or operator of a vessel that is selected 
under paragraph (b) of this section must notify NMFS, at an address or 
by phone at a number designated by NMFS, before commencing any fishing 
trip that may result in the incidental catch or harvest of Atlantic 
HMS. Notification procedures and information requirements will be 
specified in a selection letter sent by NMFS.
    (d) Assignment of observers. Once a selected vessel notifies NMFS 
or its designee, NMFS will assign an observer for that trip based on 
current information needs relative to the expected catch and bycatch 
likely to be associated with the indicated gear deployment, trip 
duration and fishing area. If an observer is not assigned for a fishing 
trip, NMFS, or their designated observer service provider, will issue a 
waiver for that trip to the owner or operator of the selected vessel, 
so long as the waiver is consistent with other applicable laws. If an 
observer is assigned for a trip, the operator of the selected vessel 
must arrange to embark the observer and shall not fish for or retain 
any Atlantic HMS unless the NMFS-assigned observer is aboard.
    (e) Requirements. The owner or operator of a vessel on which a 
NMFS-approved observer is embarked, regardless of whether required to 
carry the observer, must comply with safety regulations in Sec.  
600.725 and Sec.  600.746 of this chapter and--
    (1) Provide accommodations and food that are equivalent to those 
provided to the crew.
    (2) Allow the observer access to and use of the vessel's 
communications equipment and personnel upon request for the 
transmission and receipt of messages related to the observer's duties.
    (3) Allow the observer access to and use of the vessel's navigation 
equipment and personnel upon request to determine the vessel's 
position.
    (4) Allow the observer free and unobstructed access to the vessel's 
bridge, working decks, holding bins, weight scales, holds, and any 
other space used to hold, process, weigh, or store fish.
    (5) Allow the observer to inspect and copy the vessel's log, 
communications logs, and any records associated with the catch and 
distribution of fish for that trip.
    (6) Notify the observer in a timely fashion of when fishing 
operations are to begin and end.
    (f) Vessel responsibilities. An owner or operator of a vessel 
required to carry one or more observer(s) must provide reasonable 
assistance to enable observer(s) to carry out their duties, including, 
but not limited to:
    (1) Measuring decks, codends, and holding bins.
    (2) Providing the observer(s) with a safe work area.
    (3) Collecting bycatch when requested by the observer(s).
    (4) Collecting and carrying baskets of fish when requested by the 
observer(s).
    (5) Allowing the observer(s) to collect biological data and 
samples.
    (6) Providing adequate space for storage of biological samples.

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


Sec.  635.19  Authorized gears.

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

[[Page 73145]]

management unit by any gear other than rod and reel or handline, except 
that persons on a vessel issued both an HMS Charter/Headboat permit and 
a Federal Atlantic commercial shark permit may possess sharks taken 
with rod and reel, handline, bandit gear, longline, or gillnet if the 
vessel is not engaged in a for-hire fishing trip.
* * * * *

0
6. In Sec.  635.20, add paragraph (e)(5) to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (e) * * *
    (5) There is no size limit for smoothhound sharks taken under the 
recreational retention limits specified at Sec.  635.22(c)(6).
* * * * *

0
7. In Sec.  635.21, revise the section heading, and paragraphs (g)(2) 
and (3) to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (g) * * *
    (2) While fishing with a drift gillnet, a vessel issued or required 
to be issued a Federal Atlantic commercial shark limited access permit 
and/or a Federal commercial smoothhound permit must conduct net checks 
at least every 2 hours to look for and remove any sea turtles, marine 
mammals, Atlantic sturgeon, or smalltooth sawfish, and the drift 
gillnet must remain attached to at least one vessel at one end, except 
during net checks. Smalltooth sawfish must not be removed from the 
water while being removed from the net.
    (3) While fishing with a sink gillnet, vessels issued or required 
to be issued a Federal Atlantic commercial shark limited access permit 
and/or a Federal commercial smoothhound permit must limit the soak time 
of the sink gillnet gear to no more than 24 hours, measured from the 
time the sink gillnet first enters the water to the time it is 
completely removed from the water. Smalltooth sawfish must not be 
removed from the water while being removed from the net.
* * * * *

0
8. In Sec.  635.22, add paragraph (c)(6) to read as follows:


Sec.  635.22  Recreational retention limits.

* * * * *
    (c) * * *
    (6) The smoothhound sharks listed in Section E of Table 1 of 
Appendix A to this part may be retained and are subject only to the 
size limits described in Sec.  635.20(e)(5).
* * * * *

0
9. In Sec.  635.24, add paragraph (a)(7) to read as follows:


Sec.  635.24  Commercial retention limits for sharks, swordfish, and 
BAYS tunas.

* * * * *
    (a) * * *
    (7) A person who owns or operates a vessel that has been issued a 
Federal commercial smoothhound permit may retain, possess, and land 
smoothhound sharks if the smoothhound fishery is open in accordance 
with Sec. Sec.  635.27 and 635.28. Persons aboard a vessel in a trawl 
fishery that has been issued a Federal commercial smoothhound permit 
and are in compliance with all other applicable regulations, may 
retain, possess, land, or sell incidentally-caught smoothhound sharks, 
but only up to an amount that does not exceed 25 percent, by weight, of 
the total catch on board and/or offloaded from the vessel. A vessel is 
in a trawl fishery when it has no commercial fishing gear other than 
trawls on board and when smoothhound sharks constitute no more than 25 
percent by weight of the total catch on board or offloaded from the 
vessel.
* * * * *

0
10. In Sec.  635.27, add paragraphs (b)(1)(i)(E), (b)(1)(ii)(F), and 
(b)(4)(iv) to read as follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (E) Atlantic smoothhound sharks. The base annual commercial quota 
for Atlantic smoothhound sharks is 1,201.7 mt dw.
    (ii) * * *
    (F) Gulf of Mexico smoothhound sharks. The base annual commercial 
quota for Gulf of Mexico smoothhound sharks is 336.4 mt dw.
* * * * *
    (4) * * *
    (iv) The base annual quota for persons who collect smoothhound 
sharks under a display permit or EFP is 6 mt ww (4.3 mt dw).
* * * * *

0
11. In Sec.  635.30, revise paragraphs (c)(1) through (3), and add 
paragraph (c)(5) to read as follows:


Sec.  635.30  Possession at sea and landing.

* * * * *
    (c) Shark. (1) In addition to the regulations issued at part 600, 
subpart N, of this chapter, a person who owns or operates a vessel 
issued a Federal Atlantic commercial shark permit under Sec.  635.4 
must maintain all the shark fins including the tail naturally attached 
to the shark carcass until the shark has been offloaded from the 
vessel, except for under the conditions specified in paragraph (c)(5) 
of this section. While sharks are on board and when sharks are being 
offloaded, persons issued a Federal Atlantic commercial shark permit 
under Sec.  635.4 are subject to the regulations at part 600, subpart 
N, of this chapter.
    (2) A person who owns or operates a vessel that has a valid Federal 
Atlantic commercial shark permit may remove the head and viscera of the 
shark while on board the vessel. At any time when on the vessel, sharks 
must not have the backbone removed and must not be halved, quartered, 
filleted, or otherwise reduced. All fins, including the tail, must 
remain naturally attached to the shark through offloading, except under 
the conditions specified in paragraph (c)(5) of this section. While on 
the vessel, fins may be sliced so that the fin can be folded along the 
carcass for storage purposes as long as the fin remains naturally 
attached to the carcass via at least a small portion of uncut skin. The 
fins and tail may only be removed from the carcass once the shark has 
been landed and offloaded, except under the conditions specified in 
paragraph (c)(5) of this section.
    (3) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark permit and who lands sharks in an 
Atlantic coastal port, including ports in the Gulf of Mexico and 
Caribbean Sea, must have all fins and carcasses weighed and recorded on 
the weighout slips specified in Sec.  635.5(a)(2) and in accordance 
with part 600, subpart N, of this chapter. Persons may not possess any 
shark fins not naturally attached to a shark carcass on board a fishing 
vessel at any time, except under the conditions specified in paragraph 
(c)(5) of this section. Once landed and offloaded, sharks that have 
been halved, quartered, filleted, cut up, or reduced in any manner may 
not be brought back on board a vessel that has been or should have been 
issued a Federal Atlantic commercial shark permit.
* * * * *
    (5) A person who owns or operates a vessel that has been issued a 
Federal commercial smoothhound permit may remove the fins and tail of a 
smooth dogfish shark prior to offloading if the conditions in 
paragraphs (c)(5)(i) through (iv) of this section have been met. If the 
conditions in paragraphs (c)(5)(i) through (iv) of this section have

[[Page 73146]]

not been met, all fins, including the tail, must remain naturally 
attached to the smooth dogfish through offloading from the vessel:
    (i) The smooth dogfish was caught within waters of the United 
States located shoreward of a line drawn in such a manner that each 
point on it is 50 nautical miles from the baseline of an Atlantic State 
from which the territorial sea is measured, from Maine south through 
Florida to the Atlantic and Gulf of Mexico shark regional boundary 
defined in Sec.  635.27(b)(1).
    (ii) The vessel has been issued both a Federal commercial 
smoothhound permit and a valid State commercial fishing permit that 
allows for fishing for smooth dogfish.
    (iii) Smooth dogfish make up at least 25 percent of the catch on 
board at the time of landing.
    (iv) Total weight of the smooth dogfish fins landed or found on 
board a vessel cannot exceed 12 percent of the total dressed weight of 
smooth dogfish carcasses on board or landed from the fishing vessel.
* * * * *

0
12. In Sec.  635.69, revise paragraph (a)(3) to read as follows:


Sec.  635.69  Vessel monitoring systems.

    (a) * * *
    (3) Pursuant to Atlantic large whale take reduction plan 
requirements at 50 CFR 229.32(h), whenever a vessel issued a directed 
shark LAP has a gillnet(s) on board.
* * * * *

0
13. In Sec.  635.71, revise paragraphs (d)(6) and (7), and add 
paragraph (d)(18) to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (6) Fail to maintain a shark in its proper form, as specified in 
Sec.  635.30(c). Fail to maintain naturally attached shark fins through 
offloading as specified in Sec.  635.30(c), except for under the 
conditions specified in Sec.  635.30(c)(5).
    (7) Sell or purchase smooth dogfish fins that are disproportionate 
to the weight of smooth dogfish carcasses, as specified in Sec.  
635.30(c)(5).
* * * * *
    (18) Retain or possess on board a vessel in the trawl fishery 
smoothhound sharks in an amount that exceeds 25 percent, by weight, of 
the total fish on board or offloaded from the vessel, as specified at 
Sec.  635.24(a)(7).
* * * * *

0
14. In Appendix A to Part 635, add Section E to Table 1 to read as 
follows:

Appendix A to Part 635--Species Tables

    Table 1 of Appendix A to Part 635--Oceanic Sharks
* * * * *

E. Smoothhound Sharks

Smooth dogfish, Mustelus canis
Florida smoothhound, Mustelus norrisi
Gulf smoothhound, Mustelus sinusmexicanus Mustelus species

[FR Doc. 2015-29516 Filed 11-23-15; 8:45 am]
 BILLING CODE 3510-22-P