Atlantic Highly Migratory Species (HMS); Porbeagle Shark Management Measures, 57803-57806 [2016-20157]
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Federal Register / Vol. 81, No. 164 / Wednesday, August 24, 2016 / Rules and Regulations
G. Protest Activities
The Coast Guard respects the First
Amendment Rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
BILLING CODE 9110–04–P
DEPARTMENT OF COMMERCE
[Docket No. 160328287–6745–02]
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
2. Add § 165.T01–0735 to read as
follows:
■
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RIN 0648–BF94
Atlantic Highly Migratory Species
(HMS); Porbeagle Shark Management
Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
§ 165.T01–0735 Safety Zone; DOD Training
Exercise, Nahant Bay, Marblehead, MA.
(a) Location. The following area is a
safety zone: All navigable waters within
2,500-yards of 42° 27.000′ N., 070°
50.000′ W. while the DOD Training
Exercise is underway.
(b) Regulations. While this security
zone is being enforced, the following
regulations, along with those contained
in § 165.33, apply:
(1) Under the general safety zone
regulations in subpart B of this part, you
may not enter the safety zone described
in paragraph (a) of this section unless
authorized by the COTP or a COTP
designated representative.
(2) To seek permission to enter,
contact the COTP or the COTP’s
representative by VHF–FM channel 16
or by phone at (617) 223–5757 (Sector
Boston Command Center). Those in the
safety zone must comply with all lawful
orders or directions given to them by the
COTP or a COTP designated
representative.
(c) Enforcement period. This section
will be enforced from 7:00 p.m. until
10:00 p.m. on August 24, 2016.
(d) Definitions. As used in this
section, designated representative
means is any Coast Guard
commissioned, warrant, or petty officer
or any federal, state, or local law
enforcement officer who has been
designated by the COTP to act on the
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National Oceanic and Atmospheric
Administration
50 CFR Part 635
1. The authority citation for part 165
continues to read as follows:
■
17:56 Aug 23, 2016
Dated: August 19, 2016.
C. C. Gelzer,
Captain, U.S. Coast Guard, Captain of the
Port Boston.
[FR Doc. 2016–20389 Filed 8–22–16; 4:15 pm]
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
VerDate Sep<11>2014
COTP’s behalf. The COTP’s
representative may be on a Coast vessel,
a Coast Guard Auxiliary vessel, state or
local law enforcement, or a location on
shore.
(e) Penalties. Those who violate this
section are subject to the penalties set
forth in 33 U.S.C. 1232 and 50 U.S.C.
192.
This final rule implements
the International Commission for the
Conservation of Atlantic Tunas (ICCAT)
Recommendation 15–06 regarding
porbeagle sharks (Lamna nasus) caught
in association with ICCAT fisheries.
Recommendation 15–06 requires,
among other things, fishing vessels to
promptly release unharmed, to the
extent practicable, porbeagle sharks
caught in association with ICCAT
fisheries when brought alive alongside
for taking on board the vessel. This
action affects fishermen fishing in the
commercial highly migratory species
(HMS) pelagic longline fishery and the
HMS recreational fisheries for tunas,
swordfish, and billfish in the Atlantic
Ocean, including the Caribbean Sea and
Gulf of Mexico. This action implements
an ICCAT recommendation, consistent
with the Atlantic Tunas Convention Act
(ATCA), and will further domestic
management objectives under the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act).
DATES: Effective on September 23, 2016.
FOR FURTHER INFORMATION CONTACT:
Larry Redd, Carrie Soltanoff, or Karyl
Brewster-Geisz by phone at 301–427–
8503.
SUMMARY:
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57803
SUPPLEMENTARY INFORMATION:
Background
Atlantic HMS are managed under the
2006 Consolidated HMS Fishery
Management Plan (FMP). Implementing
regulations at 50 CFR part 635 are
issued under the authority of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), 16 U.S.C. 1801
et seq., and Atlantic Tunas Convention
Act (ATCA), 16 U.S.C. 927 et seq. ATCA
requires the Secretary of Commerce
(Secretary) to promulgate regulations as
may be necessary and appropriate to
implement ICCAT recommendations.
At its 24th Annual Meeting in 2015,
ICCAT adopted Recommendation 15–06
on ‘‘Porbeagle [Sharks] Caught in
Association with ICCAT Fisheries.’’
Recommendation 15–06 requires,
among other things, fishing vessels
‘‘. . . to promptly release unharmed, to
the extent practicable, porbeagle sharks
caught in association with ICCAT
fisheries when brought alive alongside
for taking on board the vessel.’’
Recommendation 15–06 notes that,
according to the ICCAT Standing
Committee for Research and Statistics
(SCRS), biomass of northwest Atlantic
and northeast Atlantic porbeagle sharks
is depleted to well below the biomass at
maximum sustainable yield, but recent
fishing mortality is below the fishing
mortality at maximum sustainable yield
(i.e., the stocks are overfished but
overfishing is not occurring).
Recommendation 15–06 further notes
that the 2008 and 2012 Ecological Risk
Assessments concluded that the
porbeagle shark was among the most
vulnerable of shark species, which, even
at low fishing mortality levels, makes it
more susceptible to overfishing. Thus,
Recommendation 15–06 was adopted by
ICCAT to reduce fishing mortality of
porbeagle sharks caught in association
with ICCAT fisheries in order to reduce
porbeagle shark fishing even further,
and thus assist in rebuilding stocks
which are currently overfished. On June
15, 2016 (81 FR 39017), NMFS
published a proposed rule to consider
changes to the regulations at 50 CFR
part 635 consistent with
Recommendation 15–06. The proposed
rule contains details that are not
repeated here. The comment period on
the proposed rule ended on July 15,
2016.
Domestically, porbeagle sharks are
managed pursuant to a rebuilding plan
established in Amendment 2 to the 2006
Consolidated HMS FMP (73 FR 35788,
June 24, 2008 as corrected at 73 FR
40658, July 15, 2008). Under current
regulations, commercial and
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recreational HMS fishermen that operate
in ICCAT fisheries are authorized to
retain any porbeagle shark, regardless of
whether the shark is dead or alive at
haulback. In this final rule, NMFS
requires, to the extent practicable, all
live porbeagle sharks to be released by
commercial and recreational HMS
fishermen operating in ICCAT fisheries,
as determined by the permits they hold
or, in the case of recreational fisheries,
whether they have also retained tunalike species on a given trip.
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Response to Comments
During the proposed rule stage, NMFS
received 28 written comments. The
comments received on the proposed
rule during the public comment period
can be found at https://
www.regulations.gov/ by searching for
NOAA–NMFS–2016–0066. A summary
of the relevant comments on the
proposed rule are shown below with
NMFS’ response.
Comment 1: NMFS received
comments both in support of, and
opposed to, implementing the ICCAT
recommendation. Commenters who
supported this action stated that the
proposed rule was necessary to be
consistent with the recommendation
adopted by ICCAT. Commenters
opposing the proposed rule stated that
the porbeagle population in waters off
the northeast United States was
abundant.
Response: NMFS agrees that this
action is consistent with the ICCAT
recommendation. Regarding the status
of porbeagle sharks, as described in the
proposed rule, according to the most
recent stock assessment in 2009, which
was a joint stock assessment between
ICCAT and the International Council for
the Exploration of the Sea (ICES), the
Northwest Atlantic porbeagle shark
stock is depleted well below the
biomass at maximum sustainable yield,
and recent fishing mortality is below the
fishing mortality at maximum
sustainable yield. Based on these
results, porbeagle sharks are considered
to be overfished with no overfishing
occurring both domestically and
internationally. As cited in
Recommendation 15–06, porbeagle
sharks are among the most vulnerable
shark species, which means that even at
low fishing mortality levels, the species
is more susceptible to overfishing than
other less vulnerable shark species.
ICCAT has provisionally scheduled the
next porbeagle shark stock assessment
for 2019. More information regarding
the 2009 stock assessment can be found
at https://www.iccat.int/Documents/
SCRS/DetRep/DET-POR.pdf.
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Comment 2: Some commenters noted
the need for complete prohibition of
porbeagle sharks caught in association
with non-ICCAT fisheries given the
overfished status of the stock.
Response: This comment is outside
the scope of this rulemaking because the
purpose of this rulemaking only
pertains to implementing ICCAT
Recommendation 15–06, consistent
with ATCA. ICCAT Recommendation
15–06 pertains to the live release of
porbeagle sharks caught in association
with ICCAT fisheries and does not
address possession of the species in
non-ICCAT fisheries. Domestically,
porbeagle sharks are managed pursuant
to a rebuilding plan established in 2008
in Amendment 2 to the 2006
Consolidated HMS FMP, consistent
with the requirements of the MagnusonStevens Act.
Comment 3: NMFS received
comments stating that NMFS should
issue its 12-month finding regarding
listing porbeagle sharks under the
Endangered Species Act (ESA).
Response: This comment is outside
the scope of this rulemaking because the
purpose of this rulemaking is to
implement ICCAT Recommendation 15–
06. The 12-month finding regarding
listing porbeagle sharks under the ESA
very recently published on August 1,
2016 (81 FR 50463). Any further
information regarding the 12-month
finding and any subsequent related
agency action can be found at
www.federalregister.gov/.
Comment 4: NMFS received a
comment stating that current low
interactions between recreational
fishermen and porbeagle sharks, in
combination with high release rates of
the species, does not warrant additional
regulations for the recreational fishery.
Response: Under the authority of
ATCA and the Magnuson-Stevens Act,
NMFS is obligated to promulgate such
regulations as may be necessary and
appropriate to carry out ICCAT
recommendations. Additionally, as
stated above, porbeagle sharks are
overfished without overfishing
occurring. ICCAT Recommendation 15–
06 was designed in part to aid in
rebuilding this vulnerable shark species.
NMFS acknowledges that recreational
fishermen interact with few porbeagle
sharks and that most fishermen who
catch porbeagle sharks release the
majority of those sharks alive.
Furthermore, the measures in this
rulemaking only apply to recreational
fishermen that catch porbeagle sharks
while also retaining swordfish, billfish,
or tuna. This rulemaking does not apply
to recreational fishermen that catch
porbeagle sharks and do not retain
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swordfish, billfish, or tuna. As such,
this regulation, which requires the live
release of porbeagle sharks caught in
association with ICCAT fisheries,
should have few overall impacts on the
recreational fishery.
Comment 5: NMFS received public
comments regarding handling and
release practices of porbeagle sharks.
The commenters highlighted that the
proposed changes could result in
anglers switching to fishing practices
that would ensure porbeagle sharks are
dead at haulback in order to allow for
retention of any porbeagle shark caught.
Other commenters were concerned that
the data indicating high release rates of
porbeagle sharks in commercial and
recreational fisheries were inaccurate
because the data were self-reported and
did not consider post-release mortality
rates of porbeagle sharks.
Response: As described in the
proposed rule, HMS logbook and
pelagic observer program data indicate
that approximately 97 percent of
porbeagle sharks were released (alive
and dead) from 2010–2015.
Additionally, recreational data indicate
approximately 90 percent of porbeagle
sharks were released from 2010–2015.
These data, which are a mix of selfreported and observer data are the best
scientific data available and indicate
that most porbeagle sharks have not
been retained. While the data do not
indicate how many sharks released alive
would subsequently die as a result of
being caught, the ICCAT
Recommendation will increase the
numbers of porbeagle sharks released
alive and thereby likely increase the
survival of those sharks and aid in
rebuilding.
Regarding handling and release
practices, U.S. fishermen who interact
with porbeagle sharks have historically
followed safe handling and release
practices. This regulation requires U.S.
fishermen to release live porbeagle
sharks in a manner that is largely
consistent with the safe handling and
release practices that most fishermen
employ. NMFS believes and expects
that fishermen will continue to follow
these safe handling and release practices
after implementation of the ICCAT
Recommendation 15–06. NMFS will
continue to monitor potential violations
of Atlantic HMS regulations to ensure
that both commercial and recreational
fishermen maintain proper catch and
release practices.
Comment 6: Several commenters
expressed concern that implementing
ICCAT Recommendation 15–06 would
result in a complete closure of the
recreational porbeagle shark fishery.
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Response: This final rule will not
result in the closure of the recreational
porbeagle shark fishery. As described in
the proposed rule, implementation of
ICCAT Recommendation 15–06 would
impact HMS recreational fishermen who
retain porbeagle sharks while also
retaining swordfish, billfish, or tuna.
Under these circumstances, recreational
fishermen would have to either discard
live porbeagle sharks or the swordfish,
billfish, or tuna. If a porbeagle shark
were caught that was dead at the time
of haulback, a recreational HMS
fisherman with swordfish, billfish, or
tuna onboard could retain the porbeagle,
consistent with all other regulations
such as the retention and size limits.
Similarly, if a recreational HMS
fisherman did not have swordfish,
billfish, or tuna onboard, and was not
intending to retain any swordfish,
billfish, or tunas, that fisherman could
retain any porbeagle shark that met the
retention and size limits, regardless of
the disposition of the shark.
Changes From the Proposed Rule
NMFS made one change to the
proposed regulations. At § 635.22 (a)(3),
NMFS has added text specifying that the
permit holders subject to the applicable
requirements of this rulemaking include
fishermen who hold a Swordfish
General Commercial permit when they
are participating in an HMS registered
tournament. The proposed rule clearly
stated that recreational fishing for
porbeagle sharks would be affected
when swordfish, tuna, or billfish are
retained or possessed on board, or
offloaded from, the vessel on a trip. We
inadvertently did not list the Swordfish
General Commercial permit, even
though participation in an HMS
registered recreational tournament with
such a permit is clearly recreational
fishing, and such permit holders had
notice of the proposed rule’s effect on
recreational fishing both through the
Federal Register Notice and through
NMFS outreach, including NMFS’ HMSspecific email listserv and NMFS’
general email listserv.
It is generally understood that the
Swordfish General Commercial permit
is similar to the HMS General Category
commercial permit in that the permit is
considered recreational when the vessel
owner or operator is using that vessel in
an HMS registered tournament and
landings of HMS are allowed, consistent
with the regulations. While the
regulatory language in the proposed rule
did not specifically include this
category of permit when listing the
permit titles, the rule did repeatedly
refer to recreational fisheries, and
permit holders could reasonably have
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anticipated that the prohibition would
apply to them given the rule’s overall
context and content and thus had
sufficient notice. The underlying NEPA
analysis associated with this rulemaking
is not affected by this correction. These
fishermen are considered recreational
when fishing during a registered HMS
tournament, and all such fishing in
tournaments was within the scope of
what was analyzed; any harvest of
porbeagle sharks by these fishermen was
analyzed at the proposed rule stage as
recreational data. The Regulatory
Flexibility Act (RFA) certification is
similarly unaffected by this correction.
It was based on the recreational
information about porbeagle sharks
received through the Large Pelagics
Survey, which does not distinguish
among permit types. Therefore, any
recreational harvest of porbeagle sharks
by Swordfish General Category permit
holders was considered at the proposed
rule stage. Furthermore, recreationallycaught porbeagle sharks cannot be sold,
limiting the effects analyzed under the
RFA.
Classification
The NMFS Assistant Administrator
has determined that the final rule is
consistent with the 2006 Consolidated
HMS FMP and its amendments, the
Magnuson-Stevens Act, ATCA, and
other applicable law.
This final action has been determined
to be not significant for the purposes of
Executive Order 12866.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
this certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
On December 29, 2015, NMFS issued
a final rule establishing a small business
size standard of $11 million in annual
gross receipts for all businesses
primarily engaged in the commercial
fishing industry (NAICS 11411) for
Regulatory Flexibility Act (RFA)
compliance purposes only (80 FR
81194, December 29, 2015). The $11
million standard became effective on
July 1, 2016, and is to be used in place
of the U.S. Small Business
Administration’s (SBA) current
standards of $20.5 million, $5.5 million,
and $7.5 million for the finfish (NAICS
114111), shellfish (NAICS 114112), and
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57805
other marine fishing (NAICS 114119)
sectors of the U.S. commercial fishing
industry in all NMFS rules subject to
the RFA after July 1, 2016. Id. at 81194.
Pursuant to the Regulatory Flexibility
Act, and prior to July 1, 2016, a
certification was developed for this
regulatory action using SBA’s former
size standards. NMFS has reviewed the
analyses prepared for this regulatory
action in light of the new size standard.
All of the entities directly regulated by
this regulatory action are commercial
finfish fishing businesses. The new
standard could result in fewer
commercial finfish businesses being
considered small. However, NMFS has
determined that the new size standard
does not affect its decision to certify this
regulatory action. NMFS considers all
HMS longline permit holders to be
small entities because these vessels have
reported annual gross receipts of less
than $11 million for commercial fishing.
The average annual gross revenue per
active pelagic longline vessel was
estimated to be $187,000 based on the
170 active vessels between 2006 and
2012 that produced an estimated $31.8
million in revenue annually. The
maximum annual revenue for any
pelagic longline vessel between 2006
and 2015 was $1.9 million, well below
the NMFS small business size threshold
of $11 million in gross receipts for
commercial fishing. Therefore, NMFS
considers all Atlantic Tunas Longline
category permit holders to be small
entities. Since the annual revenue for
Atlantic Tunas Longline category permit
holders is well below both the former
and new SBA size standard, there
continues to be no significant economic
impact on a substantial number of small
entities.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels,
Foreign relations, Imports, Penalties,
Reporting and recordkeeping
requirements, Treaties.
Dated: August 18, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the 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.
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2. In § 635.21, add paragraph (c)(1)(iii)
to read as follows:
■
§ 635.21 Gear operation and deployment
restrictions.
*
*
*
*
*
(c) * * *
(1) * * *
(iii) Has pelagic longline gear on
board, persons aboard that vessel are
required to release unharmed, to the
extent practicable, porbeagle sharks that
are alive at the time of haulback.
*
*
*
*
*
■ 3. In § 635.22, add paragraph (a)(3) to
read as follows:
§ 635.22
Recreational retention limits.
(a) * * *
(3) Vessels issued an HMS General
Category permit under § 635.4(d) that
are participating in an HMS registered
tournament, vessels issued a Swordfish
General commercial permit under
§ 635.4(f) that are participating in an
HMS registered tournament, vessels
issued a HMS Angling category permit
under § 635.4(c), or vessels issued a
HMS Charter/Headboat permit under
§ 635.4(b) are required to release
unharmed, to the extent practicable,
porbeagle sharks that are alive at the
time of haulback if swordfish, tuna, or
billfish are retained or possessed on
board, or offloaded from, the vessel
during that trip.
*
*
*
*
*
■ 4. In § 635.24, add paragraph (a)(10) to
read as follows:
§ 635.24 Commercial retention limits for
sharks, swordfish, and BAYS tunas.
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*
*
*
*
*
(a) * * *
(10) Notwithstanding other provisions
in this paragraph (a), vessels issued a
permit under this part that have pelagic
longline gear on board or on vessels
issued both an HMS Charter/Headboat
permit and a commercial shark permit
when tuna, swordfish, or billfish are on
board the vessel, offloaded from the
vessel, or being offloaded from the
vessel, are required to release
unharmed, to the extent practicable,
porbeagle sharks that are alive at the
time of haulback.
*
*
*
*
*
■ 5. In § 635.71, add paragraph (d)(20)
to read as follows:
§ 635.71
Prohibitions.
*
*
*
*
*
(d) * * *
(20) Retain, possess, or land porbeagle
sharks that were alive at the time of
haulback as specified in
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§§ 635.21(c)(1)(iii), 635.22(a)(3), and
635.24 (a)(10).
*
*
*
*
*
[FR Doc. 2016–20157 Filed 8–23–16; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Classification
50 CFR Part 679
[Docket No. 150916863–6211–02]
RIN 0648–XE833
Fisheries of the Exclusive Economic
Zone Off Alaska; Atka Mackerel in the
Bering Sea and Aleutian Islands
Management Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS is prohibiting directed
fishing for Atka mackerel in the Central
Aleutian district (CAI) of the Bering Sea
and Aleutian Islands management area
(BSAI) by vessels participating in the
BSAI trawl limited access fishery. This
action is necessary to prevent exceeding
the 2016 total allowable catch (TAC) of
Atka mackerel in this area allocated to
vessels participating in the BSAI trawl
limited access fishery.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), August 19, 2016, through
2400 hrs, A.l.t., December 31, 2016.
FOR FURTHER INFORMATION CONTACT:
Steve Whitney, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Bering Sea
and Aleutian Islands Management Area
(FMP) prepared by the North Pacific
Fishery Management Council under
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act. Regulations governing fishing by
U.S. vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The 2016 TAC of Atka mackerel, in
the CAI, allocated to vessels
participating in the BSAI trawl limited
access fishery was established as a
directed fishing allowance of 1,421
metric tons by the final 2016 and 2017
harvest specifications for groundfish in
the BSAI (81 FR 14773, March 18,
2016).
In accordance with § 679.20(d)(1)(iii),
the Regional Administrator finds that
SUMMARY:
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this directed fishing allowance has been
reached. Consequently, NMFS is
prohibiting directed fishing for Atka
mackerel in the CAI by vessels
participating in the BSAI trawl limited
access fishery.
After the effective dates of this
closure, the maximum retainable
amounts at § 679.20(e) and (f) apply at
any time during a trip.
Sfmt 9990
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA,
(AA) finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such a requirement
is impracticable and contrary to the
public interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
delay the closure of the Atka mackerel
directed fishery in the CAI for vessels
participating in the BSAI trawl limited
access fishery. NMFS was unable to
publish a notice providing time for
public comment because the most
recent, relevant data only became
available as of August 18, 2016. The AA
also finds good cause to waive the 30day delay in the effective date of this
action under 5 U.S.C. 553(d)(3). This
finding is based upon the reasons
provided above for waiver of prior
notice and opportunity for public
comment.
This action is required by § 679.20
and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 19, 2016.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 2016–20317 Filed 8–19–16; 4:15 pm]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Rules and Regulations]
[Pages 57803-57806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20157]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 160328287-6745-02]
RIN 0648-BF94
Atlantic Highly Migratory Species (HMS); Porbeagle Shark
Management Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements the International Commission for
the Conservation of Atlantic Tunas (ICCAT) Recommendation 15-06
regarding porbeagle sharks (Lamna nasus) caught in association with
ICCAT fisheries. Recommendation 15-06 requires, among other things,
fishing vessels to promptly release unharmed, to the extent
practicable, porbeagle sharks caught in association with ICCAT
fisheries when brought alive alongside for taking on board the vessel.
This action affects fishermen fishing in the commercial highly
migratory species (HMS) pelagic longline fishery and the HMS
recreational fisheries for tunas, swordfish, and billfish in the
Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico. This
action implements an ICCAT recommendation, consistent with the Atlantic
Tunas Convention Act (ATCA), and will further domestic management
objectives under the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act).
DATES: Effective on September 23, 2016.
FOR FURTHER INFORMATION CONTACT: Larry Redd, Carrie Soltanoff, or Karyl
Brewster-Geisz by phone at 301-427-8503.
SUPPLEMENTARY INFORMATION:
Background
Atlantic HMS are managed under the 2006 Consolidated HMS Fishery
Management Plan (FMP). Implementing regulations at 50 CFR part 635 are
issued under the authority of the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq., and
Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 927 et seq. ATCA
requires the Secretary of Commerce (Secretary) to promulgate
regulations as may be necessary and appropriate to implement ICCAT
recommendations.
At its 24th Annual Meeting in 2015, ICCAT adopted Recommendation
15-06 on ``Porbeagle [Sharks] Caught in Association with ICCAT
Fisheries.'' Recommendation 15-06 requires, among other things, fishing
vessels ``. . . to promptly release unharmed, to the extent
practicable, porbeagle sharks caught in association with ICCAT
fisheries when brought alive alongside for taking on board the
vessel.'' Recommendation 15-06 notes that, according to the ICCAT
Standing Committee for Research and Statistics (SCRS), biomass of
northwest Atlantic and northeast Atlantic porbeagle sharks is depleted
to well below the biomass at maximum sustainable yield, but recent
fishing mortality is below the fishing mortality at maximum sustainable
yield (i.e., the stocks are overfished but overfishing is not
occurring). Recommendation 15-06 further notes that the 2008 and 2012
Ecological Risk Assessments concluded that the porbeagle shark was
among the most vulnerable of shark species, which, even at low fishing
mortality levels, makes it more susceptible to overfishing. Thus,
Recommendation 15-06 was adopted by ICCAT to reduce fishing mortality
of porbeagle sharks caught in association with ICCAT fisheries in order
to reduce porbeagle shark fishing even further, and thus assist in
rebuilding stocks which are currently overfished. On June 15, 2016 (81
FR 39017), NMFS published a proposed rule to consider changes to the
regulations at 50 CFR part 635 consistent with Recommendation 15-06.
The proposed rule contains details that are not repeated here. The
comment period on the proposed rule ended on July 15, 2016.
Domestically, porbeagle sharks are managed pursuant to a rebuilding
plan established in Amendment 2 to the 2006 Consolidated HMS FMP (73 FR
35788, June 24, 2008 as corrected at 73 FR 40658, July 15, 2008). Under
current regulations, commercial and
[[Page 57804]]
recreational HMS fishermen that operate in ICCAT fisheries are
authorized to retain any porbeagle shark, regardless of whether the
shark is dead or alive at haulback. In this final rule, NMFS requires,
to the extent practicable, all live porbeagle sharks to be released by
commercial and recreational HMS fishermen operating in ICCAT fisheries,
as determined by the permits they hold or, in the case of recreational
fisheries, whether they have also retained tuna-like species on a given
trip.
Response to Comments
During the proposed rule stage, NMFS received 28 written comments.
The comments received on the proposed rule during the public comment
period can be found at https://www.regulations.gov/ by searching for
NOAA-NMFS-2016-0066. A summary of the relevant comments on the proposed
rule are shown below with NMFS' response.
Comment 1: NMFS received comments both in support of, and opposed
to, implementing the ICCAT recommendation. Commenters who supported
this action stated that the proposed rule was necessary to be
consistent with the recommendation adopted by ICCAT. Commenters
opposing the proposed rule stated that the porbeagle population in
waters off the northeast United States was abundant.
Response: NMFS agrees that this action is consistent with the ICCAT
recommendation. Regarding the status of porbeagle sharks, as described
in the proposed rule, according to the most recent stock assessment in
2009, which was a joint stock assessment between ICCAT and the
International Council for the Exploration of the Sea (ICES), the
Northwest Atlantic porbeagle shark stock is depleted well below the
biomass at maximum sustainable yield, and recent fishing mortality is
below the fishing mortality at maximum sustainable yield. Based on
these results, porbeagle sharks are considered to be overfished with no
overfishing occurring both domestically and internationally. As cited
in Recommendation 15-06, porbeagle sharks are among the most vulnerable
shark species, which means that even at low fishing mortality levels,
the species is more susceptible to overfishing than other less
vulnerable shark species. ICCAT has provisionally scheduled the next
porbeagle shark stock assessment for 2019. More information regarding
the 2009 stock assessment can be found at https://www.iccat.int/Documents/SCRS/DetRep/DET-POR.pdf.
Comment 2: Some commenters noted the need for complete prohibition
of porbeagle sharks caught in association with non-ICCAT fisheries
given the overfished status of the stock.
Response: This comment is outside the scope of this rulemaking
because the purpose of this rulemaking only pertains to implementing
ICCAT Recommendation 15-06, consistent with ATCA. ICCAT Recommendation
15-06 pertains to the live release of porbeagle sharks caught in
association with ICCAT fisheries and does not address possession of the
species in non-ICCAT fisheries. Domestically, porbeagle sharks are
managed pursuant to a rebuilding plan established in 2008 in Amendment
2 to the 2006 Consolidated HMS FMP, consistent with the requirements of
the Magnuson-Stevens Act.
Comment 3: NMFS received comments stating that NMFS should issue
its 12-month finding regarding listing porbeagle sharks under the
Endangered Species Act (ESA).
Response: This comment is outside the scope of this rulemaking
because the purpose of this rulemaking is to implement ICCAT
Recommendation 15-06. The 12-month finding regarding listing porbeagle
sharks under the ESA very recently published on August 1, 2016 (81 FR
50463). Any further information regarding the 12-month finding and any
subsequent related agency action can be found at
www.federalregister.gov/.
Comment 4: NMFS received a comment stating that current low
interactions between recreational fishermen and porbeagle sharks, in
combination with high release rates of the species, does not warrant
additional regulations for the recreational fishery.
Response: Under the authority of ATCA and the Magnuson-Stevens Act,
NMFS is obligated to promulgate such regulations as may be necessary
and appropriate to carry out ICCAT recommendations. Additionally, as
stated above, porbeagle sharks are overfished without overfishing
occurring. ICCAT Recommendation 15-06 was designed in part to aid in
rebuilding this vulnerable shark species. NMFS acknowledges that
recreational fishermen interact with few porbeagle sharks and that most
fishermen who catch porbeagle sharks release the majority of those
sharks alive. Furthermore, the measures in this rulemaking only apply
to recreational fishermen that catch porbeagle sharks while also
retaining swordfish, billfish, or tuna. This rulemaking does not apply
to recreational fishermen that catch porbeagle sharks and do not retain
swordfish, billfish, or tuna. As such, this regulation, which requires
the live release of porbeagle sharks caught in association with ICCAT
fisheries, should have few overall impacts on the recreational fishery.
Comment 5: NMFS received public comments regarding handling and
release practices of porbeagle sharks. The commenters highlighted that
the proposed changes could result in anglers switching to fishing
practices that would ensure porbeagle sharks are dead at haulback in
order to allow for retention of any porbeagle shark caught. Other
commenters were concerned that the data indicating high release rates
of porbeagle sharks in commercial and recreational fisheries were
inaccurate because the data were self-reported and did not consider
post-release mortality rates of porbeagle sharks.
Response: As described in the proposed rule, HMS logbook and
pelagic observer program data indicate that approximately 97 percent of
porbeagle sharks were released (alive and dead) from 2010-2015.
Additionally, recreational data indicate approximately 90 percent of
porbeagle sharks were released from 2010-2015. These data, which are a
mix of self-reported and observer data are the best scientific data
available and indicate that most porbeagle sharks have not been
retained. While the data do not indicate how many sharks released alive
would subsequently die as a result of being caught, the ICCAT
Recommendation will increase the numbers of porbeagle sharks released
alive and thereby likely increase the survival of those sharks and aid
in rebuilding.
Regarding handling and release practices, U.S. fishermen who
interact with porbeagle sharks have historically followed safe handling
and release practices. This regulation requires U.S. fishermen to
release live porbeagle sharks in a manner that is largely consistent
with the safe handling and release practices that most fishermen
employ. NMFS believes and expects that fishermen will continue to
follow these safe handling and release practices after implementation
of the ICCAT Recommendation 15-06. NMFS will continue to monitor
potential violations of Atlantic HMS regulations to ensure that both
commercial and recreational fishermen maintain proper catch and release
practices.
Comment 6: Several commenters expressed concern that implementing
ICCAT Recommendation 15-06 would result in a complete closure of the
recreational porbeagle shark fishery.
[[Page 57805]]
Response: This final rule will not result in the closure of the
recreational porbeagle shark fishery. As described in the proposed
rule, implementation of ICCAT Recommendation 15-06 would impact HMS
recreational fishermen who retain porbeagle sharks while also retaining
swordfish, billfish, or tuna. Under these circumstances, recreational
fishermen would have to either discard live porbeagle sharks or the
swordfish, billfish, or tuna. If a porbeagle shark were caught that was
dead at the time of haulback, a recreational HMS fisherman with
swordfish, billfish, or tuna onboard could retain the porbeagle,
consistent with all other regulations such as the retention and size
limits. Similarly, if a recreational HMS fisherman did not have
swordfish, billfish, or tuna onboard, and was not intending to retain
any swordfish, billfish, or tunas, that fisherman could retain any
porbeagle shark that met the retention and size limits, regardless of
the disposition of the shark.
Changes From the Proposed Rule
NMFS made one change to the proposed regulations. At Sec. 635.22
(a)(3), NMFS has added text specifying that the permit holders subject
to the applicable requirements of this rulemaking include fishermen who
hold a Swordfish General Commercial permit when they are participating
in an HMS registered tournament. The proposed rule clearly stated that
recreational fishing for porbeagle sharks would be affected when
swordfish, tuna, or billfish are retained or possessed on board, or
offloaded from, the vessel on a trip. We inadvertently did not list the
Swordfish General Commercial permit, even though participation in an
HMS registered recreational tournament with such a permit is clearly
recreational fishing, and such permit holders had notice of the
proposed rule's effect on recreational fishing both through the Federal
Register Notice and through NMFS outreach, including NMFS' HMS-specific
email listserv and NMFS' general email listserv.
It is generally understood that the Swordfish General Commercial
permit is similar to the HMS General Category commercial permit in that
the permit is considered recreational when the vessel owner or operator
is using that vessel in an HMS registered tournament and landings of
HMS are allowed, consistent with the regulations. While the regulatory
language in the proposed rule did not specifically include this
category of permit when listing the permit titles, the rule did
repeatedly refer to recreational fisheries, and permit holders could
reasonably have anticipated that the prohibition would apply to them
given the rule's overall context and content and thus had sufficient
notice. The underlying NEPA analysis associated with this rulemaking is
not affected by this correction. These fishermen are considered
recreational when fishing during a registered HMS tournament, and all
such fishing in tournaments was within the scope of what was analyzed;
any harvest of porbeagle sharks by these fishermen was analyzed at the
proposed rule stage as recreational data. The Regulatory Flexibility
Act (RFA) certification is similarly unaffected by this correction. It
was based on the recreational information about porbeagle sharks
received through the Large Pelagics Survey, which does not distinguish
among permit types. Therefore, any recreational harvest of porbeagle
sharks by Swordfish General Category permit holders was considered at
the proposed rule stage. Furthermore, recreationally-caught porbeagle
sharks cannot be sold, limiting the effects analyzed under the RFA.
Classification
The NMFS Assistant Administrator has determined that the final rule
is consistent with the 2006 Consolidated HMS FMP and its amendments,
the Magnuson-Stevens Act, ATCA, and other applicable law.
This final action has been determined to be not significant for the
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
On December 29, 2015, NMFS issued a final rule establishing a small
business size standard of $11 million in annual gross receipts for all
businesses primarily engaged in the commercial fishing industry (NAICS
11411) for Regulatory Flexibility Act (RFA) compliance purposes only
(80 FR 81194, December 29, 2015). The $11 million standard became
effective on July 1, 2016, and is to be used in place of the U.S. Small
Business Administration's (SBA) current standards of $20.5 million,
$5.5 million, and $7.5 million for the finfish (NAICS 114111),
shellfish (NAICS 114112), and other marine fishing (NAICS 114119)
sectors of the U.S. commercial fishing industry in all NMFS rules
subject to the RFA after July 1, 2016. Id. at 81194.
Pursuant to the Regulatory Flexibility Act, and prior to July 1,
2016, a certification was developed for this regulatory action using
SBA's former size standards. NMFS has reviewed the analyses prepared
for this regulatory action in light of the new size standard. All of
the entities directly regulated by this regulatory action are
commercial finfish fishing businesses. The new standard could result in
fewer commercial finfish businesses being considered small. However,
NMFS has determined that the new size standard does not affect its
decision to certify this regulatory action. NMFS considers all HMS
longline permit holders to be small entities because these vessels have
reported annual gross receipts of less than $11 million for commercial
fishing. The average annual gross revenue per active pelagic longline
vessel was estimated to be $187,000 based on the 170 active vessels
between 2006 and 2012 that produced an estimated $31.8 million in
revenue annually. The maximum annual revenue for any pelagic longline
vessel between 2006 and 2015 was $1.9 million, well below the NMFS
small business size threshold of $11 million in gross receipts for
commercial fishing. Therefore, NMFS considers all Atlantic Tunas
Longline category permit holders to be small entities. Since the annual
revenue for Atlantic Tunas Longline category permit holders is well
below both the former and new SBA size standard, there continues to be
no significant economic impact on a substantial number of small
entities.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: August 18, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the 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.
[[Page 57806]]
0
2. In Sec. 635.21, add paragraph (c)(1)(iii) to read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) * * *
(1) * * *
(iii) Has pelagic longline gear on board, persons aboard that
vessel are required to release unharmed, to the extent practicable,
porbeagle sharks that are alive at the time of haulback.
* * * * *
0
3. In Sec. 635.22, add paragraph (a)(3) to read as follows:
Sec. 635.22 Recreational retention limits.
(a) * * *
(3) Vessels issued an HMS General Category permit under Sec.
635.4(d) that are participating in an HMS registered tournament,
vessels issued a Swordfish General commercial permit under Sec.
635.4(f) that are participating in an HMS registered tournament,
vessels issued a HMS Angling category permit under Sec. 635.4(c), or
vessels issued a HMS Charter/Headboat permit under Sec. 635.4(b) are
required to release unharmed, to the extent practicable, porbeagle
sharks that are alive at the time of haulback if swordfish, tuna, or
billfish are retained or possessed on board, or offloaded from, the
vessel during that trip.
* * * * *
0
4. In Sec. 635.24, add paragraph (a)(10) to read as follows:
Sec. 635.24 Commercial retention limits for sharks, swordfish, and
BAYS tunas.
* * * * *
(a) * * *
(10) Notwithstanding other provisions in this paragraph (a),
vessels issued a permit under this part that have pelagic longline gear
on board or on vessels issued both an HMS Charter/Headboat permit and a
commercial shark permit when tuna, swordfish, or billfish are on board
the vessel, offloaded from the vessel, or being offloaded from the
vessel, are required to release unharmed, to the extent practicable,
porbeagle sharks that are alive at the time of haulback.
* * * * *
0
5. In Sec. 635.71, add paragraph (d)(20) to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(d) * * *
(20) Retain, possess, or land porbeagle sharks that were alive at
the time of haulback as specified in Sec. Sec. 635.21(c)(1)(iii),
635.22(a)(3), and 635.24 (a)(10).
* * * * *
[FR Doc. 2016-20157 Filed 8-23-16; 8:45 am]
BILLING CODE 3510-22-P
