Atlantic Highly Migratory Species; Commercial Retention Limit for Blacknose Sharks and Non-Blacknose Small Coastal Sharks in the Atlantic Region, 90241-90246 [2016-29984]
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Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 160129062–6999–02]
RIN 0648–BF49
Atlantic Highly Migratory Species;
Commercial Retention Limit for
Blacknose Sharks and Non-Blacknose
Small Coastal Sharks in the Atlantic
Region
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule establishes a
commercial retention limit of eight
blacknose sharks for all Atlantic shark
limited access permit holders in the
Atlantic region south of 34°00′ N.
latitude. NMFS manages four small
coastal shark (SCS) species in the
Atlantic: Blacknose, Atlantic sharpnose,
finetooth, and bonnethead. All of these
species except blacknose sharks are
managed in a management group called
the ‘‘non-blacknose SCS.’’ This action is
being taken to reduce discards of nonblacknose small coastal sharks (SCS)
while increasing the utilization of
available Atlantic non-blacknose SCS
quota and aid in rebuilding and ending
overfishing of Atlantic blacknose sharks.
The final action affects fishermen who
fish in the Atlantic region and who hold
commercial shark limited access
permits. In addition, this final rule
implements two small, unrelated
administrative changes to existing
regulatory text to remove crossreferences to an unrelated section and a
section that does not exist. These two
changes are administrative in nature,
and are not expected to result in any
impacts to the environment or current
fishing operations.
DATES: Effective on January 13, 2017.
ADDRESSES: Copies of the supporting
documents—the Final Environmental
Assessment (EA) for this final action,
the 2006 Consolidated Highly Migratory
Species (HMS) Fishery Management
Plan (FMP) and its amendments, and
the annual HMS Stock Assessment and
Fishery Evaluation (SAFE) Reports—are
available from the HMS Management
Division Web site at https://
www.nmfs.noaa.gov/sfa/hms/ or by
contacting the HMS Management
Division by phone at 301–427–8503.
´
FOR FURTHER INFORMATION CONTACT: Guy
DuBeck, Larry Redd, Cliff Hutt, or Karyl
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SUMMARY:
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Brewster-Geisz by telephone at 301–
427–8503.
SUPPLEMENTARY INFORMATION: Atlantic
sharks are directly managed under the
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act), and the
authority to issue regulations has been
delegated from the Secretary of
Commerce to the Assistant
Administrator (AA) for Fisheries,
NOAA. NMFS published in the Federal
Register (71 FR 59058) final regulations,
effective November 1, 2006
implementing the 2006 Consolidated
Highly Migratory Species (HMS) Fishery
Management Plan (FMP), which details
management measures for Atlantic HMS
fisheries. The implementing regulations
for the 2006 Consolidated HMS FMP
and its amendments are at 50 CFR part
635. This final rule establishes a
commercial retention limit of eight
blacknose sharks per trip in the Atlantic
region south of 34°00′ N. latitude.
Background
NMFS published a proposed rule on
August 3, 2016 (81 FR 51165), outlining
the alternatives analyzed in the Draft
EA, identifying the preferred alternative,
and soliciting public comments on the
measures, which would impact the
blacknose shark and non-blacknose SCS
fisheries in the Atlantic region.
Specifically, the proposed rule proposed
establishing a commercial retention
limit of eight blacknose sharks in the
Atlantic region south of 34°00′ N.
latitude but also considered alternatives
that would establish a commercial
retention limit of non-blacknose SCS for
shark directed access permit holders in
the Atlantic region south of 34°00′ N.
latitude once the blacknose shark quota
is reached, as well as two other
alternatives regarding potential
commercial retention limits for
blacknose sharks. The full description of
the management and conservation
measures considered is included in both
the Final EA and the proposed rule and
is not repeated here. The comment
period for the Draft EA and proposed
rule ended on September 20, 2016. The
comments received, and responses to
those comments, are summarized below
under the heading labeled Response to
Comments.
This final rule establishes a
commercial retention limit of eight
blacknose sharks for all Atlantic shark
limited access permit holders in the
Atlantic region south of 34°00′ N.
latitude. This rulemaking only focuses
on the Atlantic region south of 34°00′ N.
latitude since NMFS prohibited the
retention and landings of blacknose
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sharks in the Gulf of Mexico and north
of 34°00′ N. latitude in 2015. This final
action should reduce discards of nonblacknose SCS while increasing the
utilization of available Atlantic nonblacknose SCS quota and aid in
rebuilding and ending overfishing of
Atlantic blacknose sharks.
Finally, this rule makes
administrative changes to existing
regulatory text. Specifically, in two
locations in § 635.24(a), the regulations
make reference to paragraphs (a)(4)(iv)
through (vi); those cross-references are
unnecessary because the Commercial
Caribbean Small Boat permit under
(a)(4)(iv) is a separate permit from the
shark limited access permits and there
is no (a)(4)(v) and (a)(4)(vi) regulations.
This final rule implements changes to
the regulations in 50 CFR part 635 to
correct those regulatory crossreferences.
Response to Comments
During the proposed rule stage, NMFS
received 15 written and oral comments.
NMFS also received feedback from: The
HMS Advisory Panel on September 8,
2016; constituents who attended the
conference call/webinar held on August
16, 2016; and constituents who attended
the public hearing on August 24, 2016,
in Cocoa Beach, FL. Additionally,
NMFS consulted with the South
Atlantic Fishery Management Council
on September 15, 2016. A summary of
the comments received on the proposed
rule during the public comment period
is provided below with NMFS’
responses. All written comments
submitted during the comment period
can be found at https://
www.regulations.gov by searching for
NOAA-NMFS-2016-0095.
Comment 1: NMFS received a number
of comments regarding the preferred
retention limit of eight blacknose sharks
per trip within the Atlantic region south
of 34°00′ N. latitude. The South Atlantic
Fishery Management Council, a number
of HMS Advisory Panel members, and
other commenters supported the
preferred retention limit of eight
blacknose sharks per trip within the
Atlantic region south of 34°00′ N.
latitude. Some commenters were
concerned that the preferred retention
limit was not low enough and would
still result in the early closure of the
non-blacknose SCS fishery. Some
commenters suggested that the preferred
retention limit of eight blacknose sharks
per trip should apply only to directed
shark limited access permit holders and
that incidental shark limited access
permit holders should not be allowed to
land blacknose sharks or should have a
lower retention limit. Lastly, other
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commenters suggested that NMFS
should adjust the blacknose shark
retention limit on an inseason basis,
similar to what is done in the large
coastal shark fishery.
Response: In this final action, NMFS
is establishing a commercial retention
limit of eight blacknose sharks per trip
because the retention limit would have
moderate beneficial ecological impacts
on blacknose sharks, neutral ecological
impacts on non-blacknose SCS, and
minor beneficial socioeconomic impacts
for SCS fishermen because they would
be able to continue utilizing the nonblacknose SCS quota. Based on the
analyses conducted, NMFS believes this
retention limit would allow between 40
and 96 lb dw blacknose sharks to be
landed per trip, depending on the
average weight of blacknose sharks
used. Using these weights landed per
trip, the full blacknose shark quota
could be landed in approximately 395 to
948 trips. This result is more than
double and could be as high as 10 times
the number of trips that harvested the
blacknose quota from the 2011 to 2015
average. As such, the final retention
limit of eight blacknose sharks per trip
should allow for the blacknose and nonblacknose SCS quotas to remain open
throughout the year and not cause the
fisheries to close early. Because the
retention limit should allow for the
fisheries to remain open and because
incidental shark permit holders by
definition do not target sharks, NMFS
does not believe it is necessary to
consider separate blacknose retention
limits by permit type. Regarding the
comment about inseason adjustments to
the retention limit, NMFS did not
consider establishing an adjustable
retention limit for blacknose sharks
because this species should only be
landed at incidental levels in order to
allow for rebuilding and the final action
to establish an eight blacknose shark
retention limit should prevent early
closure of the SCS fishery. NMFS may
revisit inseason adjustments to the
blacknose shark retention limit in the
future as warranted.
Comment 2: NMFS received a
comment suggesting that the average
dressed weight for blacknose sharks
should be increased from the 5 lb dw
used in the latest stock assessment to 10
to 20 lb dw because larger blacknose
sharks are more typically landed in the
fishery.
Response: In all the calculations in
the proposed rule, NMFS used an
average dressed weight of 5 lb for
blacknose sharks. This average weight is
the average weight that was derived for
the 2011 stock assessment using a
length-weight conversion function.
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However, based on these public
comments, NMFS reviewed data from
observed bottom longline and gillnet
trips that landed blacknose sharks in the
years 2013 through 2015 and found that
these data indicate that fishermen are
landing blacknose sharks with an
average weight of 12 lb dw. As a result,
NMFS provided information on both
weights in the final EA and final rule.
Based on data analysis, using either
average weight would support using an
eight blacknose shark retention limit
and accomplish the goals of the
rulemaking.
Comment 3: NMFS received a
comment requesting the removal of the
quota linkage between the blacknose
shark and the South Atlantic nonblacknose SCS quotas so that fishermen
would not have to discard nonblacknose SCS after the blacknose quota
is filled.
Response: The objectives of this
action are to continue rebuilding the
Atlantic blacknose shark stock; to aid in
ending overfishing of the Atlantic
blacknose shark stock; to aid in
achieving optimum yield in the
blacknose and non-blacknose-SCS
fisheries; and to reduce dead discards of
small coastal sharks. The quota linkage
was established to prevent further
overfishing and aid in rebuilding
blacknose sharks. Without the quota
linkage, fishermen would lose an
important incentive for avoiding
blacknose sharks, thus jeopardizing the
rebuilding plan for blacknose sharks
and potentially increasing overfishing of
blacknose sharks.
Comment 4: NMFS received a
comment suggesting that the SCS season
open in September instead of January.
Response: The final action does not
reanalyze the overall start date for SCS,
which was analyzed in the 2006
Consolidated HMS FMP and its
amendments. NMFS could consider this
in a future rulemaking.
Comment 5: NMFS received a
comment requesting that the 80-percent
threshold closure policy for shark
fisheries be changed.
Response: NMFS’ goal is to allow
shark fishermen to harvest the full quota
without exceeding it in order to
maximize economic benefits to
stakeholders while achieving
conservation goals, including
preventing overfishing. The 80-percent
threshold closure policy refers to NMFS
calculating that the overall, regional,
and/or sub-regional landings for any
species and/or management group has
reached or is projected to reach 80
percent of the available overall,
regional, and/or sub-regional quota and
NMFS closing the species and/or
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management groups for the rest of the
season. Based on current experiences
with monitoring quotas for all shark
species and management groups, NMFS
believes that the 80-percent threshold
allows for all or almost the entire quota
to be harvested without exceeding the
quota. As such, NMFS expects that, in
general, the quotas would be harvested
between the time that the 80-percent
threshold is reached and the time that
the season actually closes. In addition,
NMFS must also account for late
reporting by shark dealers even with the
improved electronic dealer system and
provide a buffer to include landings
received after the reporting deadline in
an attempt to avoid overharvests. NMFS
will continue to evaluate the 80-percent
threshold and may consider changes in
a future rulemaking.
Comment 6: NMFS received a
comment suggesting that an Atlantic
blacknose update stock assessment be
performed in 2019 along with the
Atlantic blacktip benchmark
assessment.
Response: Most of the domestic shark
stock assessments follow the Southeast
Data, Assessment Review (SEDAR)
process. This process is also used by the
South Atlantic, Gulf of Mexico, and
Caribbean Fishery Management
Councils and is designed to provide
transparency throughout the stock
assessment. With regard to the timing of
upcoming shark stock assessments,
NMFS aims to conduct a number of
shark stock assessments every year and
to regularly reassess these stocks. The
number of species that can be assessed
each year depends on whether
assessments are establishing baselines
or are only updates to previous
assessments. Assessments also depend
on ensuring there are data available for
a particular species. In addition to the
shark assessments being conducted by
the International Commission for the
Conservation of Atlantic Tunas (ICCAT),
NMFS intends to conduct, through the
SEDAR process, a sandbar shark
benchmark assessment in 2017, a Gulf
of Mexico blacktip shark update
assessment in 2018, and an Atlantic
blacktip benchmark assessment in 2019.
NMFS will continue to monitor options
for future stock assessments, including
an assessment for Atlantic blacknose
sharks.
Classification
The NMFS Assistant Administrator
has determined that the final rule is
necessary for the conservation and
management of the Atlantic shark
fisheries and that it is consistent with
the Magnuson-Stevens Act and other
applicable laws.
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This final action has been determined
to be not significant for purposes of
Executive Order 12866.
A Final Regulatory Flexibility
Analysis (FRFA) was prepared for this
rule pursuant to the Regulatory
Flexibility Act (RFA) (5 U.S.C. 604
(c)(1)–(4)). The FRFA incorporates the
Initial Regulatory Flexibility Analysis
(IRFA), a summary of the significant
issues raised by the public comments in
response to the IRFA, NMFS responses
to those comments, 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.
Under Section 604(a)(1) of the RFA,
the management goals and objectives of
the preferred alternative are to provide
for the sustainable management of SCS
species under authority of the Secretary
consistent with the requirements of the
Magnuson-Stevens Act and other
statutes which may apply to such
management, including the Endangered
Species Act, Marine Mammal Protection
Act, and Atlantic Tunas Convention
Act. The Magnuson-Stevens Act
mandates that the Secretary provide for
the conservation and management of
HMS through development of an FMP
for species identified for management
and to implement the FMP with
necessary regulations. In addition, the
Magnuson-Stevens Act directs the
Secretary, in managing HMS, to prevent
overfishing of species while providing
for their optimum yield on a continuing
basis and to rebuild fish stocks that are
considered overfished. The management
objective of the preferred alternative is
to implement management measures for
the Atlantic SCS fishery that will further
the objective of preventing overfishing
while achieving (on a continuing basis)
optimum yield, and aid in rebuilding
overfished shark stocks.
Section 604(a)(2) of the RFA requires
a summary of the significant issues
raised by the public comments in
response to the IRFA, a summary of the
Agency’s assessment of such issues, and
a statement of any changes made in the
rule as a result of such comments.
NMFS received several comments on
the proposed rule and Draft EA during
the public comment period.
Summarized public comments and
NMFS’ responses to them are included
in Appendix A of this document.
Section 604(a)(3) of the RFA requires
the Agency to respond to any comments
filed by the Chief Counsel for Advocacy
of the Small Business Administration
(SBA) in response to the proposed rule,
and a detailed statement of any change
made in the rule as a result of such
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comments. NMFS did not receive any
comments from the Chief Counsel for
Advocacy of the SBA nor the public in
response to this document.
Section 604(a)(3) of the RFA requires
agencies to provide an estimate of the
number of small entities to which the
rule would apply. The Small Business
Administration (SBA) has established
size criteria for all major industry
sectors in the United States, including
fish harvesters. Provision is made under
SBA’s regulations for an agency to
develop its own industry-specific size
standards after consultation with
Advocacy and an opportunity for public
comment (see 13 CFR 121.903(c)).
Under this provision, NMFS may
establish size standards that differ from
those established by the SBA Office of
Size Standards, but only for use by
NMFS and only for the purpose of
conducting an analysis of economic
effects in fulfillment of the agency’s
obligations under the RFA. To utilize
this provision, NMFS must publish such
size standards in the Federal Register
(FR), which NMFS did on December 29,
2015 (80 FR 81194, December 29, 2015).
In this final rule, effective on July 1,
2016, NMFS established a small
business size standard of $11 million in
annual gross receipts for all businesses
in the commercial fishing industry
(NAICS 11411) for RFA compliance
purposes (80 FR 81194, December 29,
2015). NMFS considers all HMS permit
holders to be small entities because they
have average annual receipts of less
than $11 million for commercial fishing.
This final rule would apply to the 499
commercial shark permit holders in the
Atlantic shark fishery, based on an
analysis of permit holders as of
November 2015. Of these permit
holders, 224 have directed shark
permits and 275 hold incidental shark
permits. Not all permit holders are
active in the fishery in any given year.
Active directed permit holders are
defined as those with valid permits that
landed one shark based on 2015 HMS
electronic dealer reports. Of the 499
permit holders, only 27 permit holders
landed SCS in the Atlantic region and
of those only 13 landed blacknose
sharks. NMFS has determined that the
final rule would not likely affect any
small governmental jurisdictions.
Section 604(a)(4) of the RFA requires
Agencies to describe any new reporting,
record-keeping and other compliance
requirements. The action does not
contain any new collection of
information, reporting, or recordkeeping requirements. The alternatives
considered would adjust the
commercial retention limits for the SCS
fisheries, which would mean new
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compliance requirements for the shark
fishery participants in the Atlantic
region south of 34°00′ N. latitude, but
which are similar to other compliance
requirements the fishermen already
follow.
Section 604(a)(5) of 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. Additionally, the
RFA lists four general categories of
‘‘significant’’ alternatives that would
assist an agency in the development of
significant alternatives. These categories
of alternatives are: (1) Establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) Clarification, consolidation,
or simplification of compliance and
reporting requirements under the rule
for such small entities; (3) Use of
performance rather than design
standards; and (4) Exemptions from
coverage of the rule, or any part thereof,
for small entities.
In order to meet the objectives of this
final rule, consistent with the
Magnuson-Stevens Act and the
Endangered Species Act, NMFS cannot
establish differing compliance
requirements for small entities or
exempt small entities from compliance
requirements. 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. As described
below, NMFS analyzed several different
alternatives in this final rulemaking and
provides rationales for identifying the
preferred alternatives to achieve the
desired objectives.
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.
Alternative 1, the No Action
alternative, would not implement any
new retention limits for blacknose
sharks or non-blacknose SCS in the
Atlantic region south of 34°00′ N.
latitude beyond those already in effect
for current Atlantic shark limited access
permit holders. NMFS would continue
to allow fishermen with a direct limited
access permit to land unlimited sharks
per trip and allow fishermen with an
incidental permit to land 16 combined
SCS and pelagic sharks per vessel per
trip. In 2010, Amendment 3 to the 2006
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Consolidated HMS FMP established,
among other things, a quota for
blacknose sharks separate from the SCS
quota. The 2011 blacknose shark stock
assessment determined that separate
stocks of blacknose sharks existed in the
Gulf of Mexico and the Atlantic.
Amendment 5a to the 2006
Consolidated HMS FMP established,
among other things, regional quotas for
non-blacknose SCS and blacknose
sharks in the Gulf of Mexico and the
Atlantic in 2013. These blacknose shark
and non-blacknose SCS quotas are
linked by region and the regional SCS
fishery closes when the blacknose quota
is reached. This linkage has resulted in
the early closure of the entire SCS
fishery due to high abundance of
blacknose shark landings. Closure of the
fishery as a result of Atlantic blacknose
rapid harvest leaves the non-blacknose
shark SCS quota underutilized. Between
2014 and 2015, the Atlantic nonblacknose SCS quota was underutilized
by an average of 314,625 lb dw, or 54
percent of the quota. This represents an
average annual ex-vessel loss of
$298,583 for the fishery, assuming an
average value for 2014–2015 of $0.74/lb
dw for meat and $4.18/lb dw for fins.
Based on the 27 vessels that landed SCS
in the Atlantic, the individual vessel
impact would be an approximate loss of
$11,059 per year.
Alternative 2a would remove the
quota linkage to blacknose sharks for
shark directed limited access permit
holders in the Atlantic region south of
34°00′ N. latitude once the blacknose
shark quota is reached and would
implement a commercial retention limit
of 50 non-blacknose SCS per trip at that
point. Additionally, this alternative
would adjust the blacknose shark quota
to 15.0 mt dw (33,069 lb dw) assuming
a 5 lb dw carcass, or 11.8 mt dw (26,089
lb dw) assuming a 12 lb dw carcass.
Reduction of the blacknose shark quota
would result in an average ex-vessel
revenue loss of $5,275 for the fishery
assuming a 5 lb dw carcass, or $12,660
assuming a 12 lb dw carcass.
Conversely, increased landings of nonblacknose SCS would result in an
overall estimated average ex-vessel
revenue gain of $34,470 for the fishery.
NMFS estimates that this bycatch
retention limit would result in a net
gain of $21,810 to $29,195 in average exvessel revenue for the fishery per year
depending on the average carcass
weight of blacknose sharks, or $808 to
$1,081 per vessel for the 27 vessels that
targeted non-blacknose SCS in 2015.
Alternative 2b would remove the
quota linkage to blacknose sharks for
shark directed limited access permit
holders in the Atlantic region south of
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34°00′ N. latitude once the blacknose
shark quota is reached and would
implement a commercial retention limit
of 150 non-blacknose SCS per trip at
that point. Additionally, this alternative
would adjust the blacknose shark quota
to 10.5 mt dw (23,148 lb dw) assuming
a 5 lb dw carcass, or 1.1 mt dw (2,521
lb dw) assuming a 12 lb dw carcass.
Reduction of the blacknose shark quota
would result in an average ex-vessel
revenue loss of $15,783 for the fishery
assuming a 5 lb dw carcass, or $37,878
assuming a 12 lb dw carcass.
Conversely, increased landings of nonblacknose SCS would result in an
overall estimated average ex-vessel
revenue gain of $65,139 for the fishery.
NMFS estimates that this bycatch
retention limit would result in a net
gain of $27,261 to $49,357 in average exvessel revenue for the fishery per year
depending on the average carcass
weight of blacknose sharks, or
approximately $1,010 to $1,828 per
vessel for the 27 vessels that targeted
non-blacknose SCS in 2015.
Alternative 2c would remove the
quota linkage to blacknose sharks for
shark directed limited access permit
holders in the Atlantic region south of
34°00′ N. latitude once the blacknose
shark quota is reached and would
implement a commercial retention limit
of 250 non-blacknose SCS per trip at
that point. This alternative would also
adjust the blacknose shark quota to 6.1
mt dw (13,448 lb dw) assuming a 5 lb
dw carcass, or 0.0 mt dw (0.0 lb dw)
assuming a 12 lb dw carcass. Reduction
of the blacknose shark quota would
result in an average ex-vessel revenue
loss of $26,295 for the fishery assuming
a 5 lb dw carcass, or $40,575 assuming
a 12 lb dw carcass. Conversely,
increased landings of non-blacknose
SCS would result in an estimated
average ex-vessel revenue gain of
$80,339 for the fishery. NMFS estimates
that this bycatch retention limit would
result in a net gain of $39,764 to $54,044
in average ex-vessel revenue for the
fishery per year depending on the
average carcass weight of blacknose
sharks, or approximately $1,473 to
$2,002 per vessel for the 27 vessels that
targeted non-blacknose SCS in 2015.
Alternative 3a would establish a
commercial retention limit of 50
blacknose sharks per trip for shark
directed limited access permit holders
in the Atlantic region south of 34°00′ N.
latitude and maintain the quota linkage
between blacknose sharks and nonblacknose SCS. This alternative would
have minor beneficial to neutral
economic impacts as a retention limit of
this size would allow an average of 250
to 600 lb dw blacknose sharks per trip
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and would take an estimated 63 to 152
trips for fishermen to land the full
blacknose shark quota. This alternative
will prevent targeted take of blacknose
sharks as the per trip value of 50
blacknose sharks would range between
$270 ($218 for meat and $52 for fins)
assuming an average weight of 5 lb dw
per blacknose shark, and $642 ($522 for
meat and $120 for fins) assuming an
average weight of 12 lb dw for the
estimated 13 vessels that land blacknose
sharks in the Atlantic. Based on 2015
eDealer reports, 106 trips landed
blacknose sharks, and between 14 and
33 percent landed blacknose sharks in
excess of a commercial retention limit of
50 blacknose sharks depending on the
average trip weight used in the
calculations (250–600 lb dw). This
alternative would likely increase the
number of trips needed to fill the
blacknose shark quota when compared
to the average from 2010 through 2015
under Alternative 1. A retention limit of
50 blacknose sharks could potentially
cause the SCS fisheries to close as early
as June or July if every trip landing
blacknose sharks landed the full
retention limit but, since few fishermen
land that many blacknose sharks per
trip now, NMFS believes a change in
behavior as a result of this alternative is
unlikely.
Alternative 3b would establish a
commercial retention limit of 16
blacknose sharks per trip for all Atlantic
shark limited access permit holders in
the Atlantic region south of 34°00′ N.
latitude and maintain the quota linkage
between blacknose sharks and nonblacknose SCS. This alternative would
have minor beneficial economic impacts
as a retention limit of this size would
allow an average of 80 to 192 lb dw
blacknose sharks per trip and would
take an estimated 198 to 474 trips for
fishermen to land the full blacknose
shark quota. Based on 2015 eDealer
reports, 38 to 55 percent of the overall
number of trips landed blacknose sharks
in excess of a commercial retention
limit of 16 blacknose sharks depending
on the average trip weight used in the
calculations (80–192 lb dw). This
alternative would dramatically increase
the number of trips needed to fill the
blacknose shark quota when compared
to the yearly averages under Alternative
1. Currently, the linkage between the
blacknose shark quota and the nonblacknose SCS quota causes the closure
of both fisheries once the lower
blacknose shark quota is attained.
NMFS expects that, under this
alternative, the blacknose shark quota
would not be filled and the SCS
fisheries in the South Atlantic region
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Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations
would not close early. Thus, this
alternative would have minor beneficial
economic impacts to the Atlantic SCS
fisheries as it would allow for the
potential full-utilization of the nonblacknose SCS quota, and potentially
increase total ex-vessel revenue by as
much as $298,583 a year. However,
given the low monthly trip rates
occurring to harvest SCS in the Atlantic,
the non-blacknose SCS quota is likely to
remain underutilized. Using
calculations based on observed trip and
landings rates of non-blacknose SCS in
2015, a more likely result of this
alternative would be additional landings
of 104,962 lb dw of non-blacknose SCS
valued at $98,664, or approximately
$3,654 per vessel for the 27 vessels that
participated in the fishery in 2015. Any
financial losses due to underutilization
of the blacknose shark quota would be
minimal in comparison.
Alternative 3c, the preferred
alternative, would establish a
commercial retention limit of eight
blacknose sharks per trip for all Atlantic
shark limited access permit holders in
the Atlantic region south of 34°00′ N.
latitude and maintain the quota linkage
between blacknose sharks and nonblacknose SCS. Because this retention
limit would be less than the current
retention limit for shark incidental
limited access permit holders, the
retention limit for shark incidental
limited access permit holders would
need to change slightly. The adjusted
retention limit for incidental permit
holders would still allow fishermen to
land a total of 16 pelagic or small
coastal sharks per trip but, of those
sharks, no more than eight could be
blacknose sharks. This alternative
would have moderate beneficial
economic impacts as a retention limit of
this size would allow an average of 40
to 96 lb dw blacknose sharks per trip
and would take an estimated 395 to 948
trips to land the full blacknose shark
quota. Based on 2015 eDealer reports, 55
to 70 percent of the overall number of
trips landed blacknose sharks in excess
of the commercial retention limit of
eight blacknose sharks depending on the
average trip weight used in the
calculations (40–96 lb dw). This
alternative would dramatically increase
the number of trips needed to fill the
blacknose shark quota when compared
to the yearly averages under Alternative
1. Currently, the linkage between the
blacknose shark quota and the nonblacknose SCS quota causes the closure
of both fisheries once the lower
blacknose shark quota is attained.
NMFS expects that, under this
alternative, the blacknose shark quota
VerDate Sep<11>2014
15:29 Dec 13, 2016
Jkt 241001
would not be filled and the SCS
fisheries in the South Atlantic region
would not close early. Thus, this would
have moderate beneficial economic
impacts as the fishermen would still be
allowed to land blacknose sharks and
the fishery would remain open for a
longer period of time, significantly
increasing non-blacknose SCS revenues
by as much as $298,583 a year on
average if the non-blacknose SCS quota
is fully utilized. However, given current
monthly trip rates in the Atlantic the
non-blacknose SCS quota is likely to
remain underutilized. Using
calculations based on observed trip and
landings rates of non-blacknose SCS in
2015, a more likely result of this
alternative would be additional landings
of 104,962 lb dw of non-blacknose SCS
valued at $98,664, or approximately
$3,654 per vessel for the 27 vessels that
participated in the fishery in 2015. Any
financial losses due to underutilization
of the blacknose shark quota would be
minimal in comparison.
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 listserv notice 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., the listserv notice, will be sent to all
fishermen who hold commercial shark
limited access permits. 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: December 7, 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:
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Fmt 4700
Sfmt 4700
90245
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 § 635.24, revise paragraphs (a)(2),
(a)(3), (a)(4)(ii), and (a)(4)(iii) to read as
follows:
■
§ 635.24 Commercial retention limits for
sharks, swordfish, and BAYS tunas.
*
*
*
*
*
(a) * * *
(2) The commercial retention limit for
LCS other than sandbar sharks for a
person who owns or operates a vessel
that has been issued a directed LAP for
sharks and does not have a valid shark
research permit, or a person who owns
or operates a vessel that has been issued
a directed LAP for sharks and that has
been issued a shark research permit but
does not have a NMFS-approved
observer on board, may range between
zero and 55 LCS other than sandbar
sharks per vessel per trip if the
respective LCS management group(s) is
open per §§ 635.27 and 635.28. Such
persons may not retain, possess, or land
sandbar sharks. At the start of each
fishing year, the default commercial
retention limit is 45 LCS other than
sandbar sharks per vessel per trip unless
NMFS determines otherwise and files
with the Office of the Federal Register
for publication notification of an
inseason adjustment. During the fishing
year, NMFS may adjust the retention
limit per the inseason trip limit
adjustment criteria listed in paragraph
(a)(8) of this section.
(3) A person who owns or operates a
vessel that has been issued an incidental
LAP for sharks and does not have a
valid shark research permit, or a person
who owns or operates a vessel that has
been issued an incidental LAP for
sharks and that has been issued a valid
shark research permit but does not have
a NMFS-approved observer on board,
may retain, possess, or land no more
than 3 LCS other than sandbar sharks
per vessel per trip if the respective LCS
management group(s) is open per
§§ 635.27 and 635.28. Such persons may
not retain, possess, or land sandbar
sharks.
(4) * * *
(ii) A person who owns or operates a
vessel that has been issued a shark LAP
and is operating south of 34°00′ N. lat.
in the Atlantic region, as defined at
§ 635.27(b)(1), may retain, possess, land,
or sell blacknose and non-blacknose
SCS if the respective blacknose and
non-blacknose SCS management groups
are open per §§ 635.27 and 635.28. Such
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Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations
persons may retain, possess, land, or
sell no more than 8 blacknose sharks per
vessel per trip. A person who owns or
operates a vessel that has been issued a
shark LAP and is operating north of
34°00′ N. lat. in the Atlantic region, as
defined at § 635.27(b)(1), or a person
who owns or operates a vessel that has
been issued a shark LAP and is
operating in the Gulf of Mexico region,
as defined at § 635.27(b)(1), may not
retain, possess, land, or sell any
blacknose sharks, but may retain,
possess, land, or sell non-blacknose SCS
if the respective non-blacknose SCS
management group is open per
§§ 635.27 and 635.28.
(iii) Consistent with paragraph
(a)(4)(ii) of this section, a person who
owns or operates a vessel that has been
issued an incidental shark LAP may
retain, possess, land, or sell no more
than 16 SCS and pelagic sharks,
combined, per vessel per trip, if the
respective fishery is open per §§ 635.27
and 635.28. Of those 16 SCS and pelagic
sharks per vessel per trip, no more than
8 shall be blacknose sharks.
*
*
*
*
*
[FR Doc. 2016–29984 Filed 12–13–16; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No.: 160706587–6999–02]
RIN 0648–BG21
Fisheries of the Northeastern United
States; Atlantic Mackerel, Squid, and
Butterfish Fisheries; Amendment 16
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule implements
regulations in Amendment 16 to the
Atlantic Mackerel, Squid, and Butterfish
Fishery Management Plan. Amendment
16 protects deep-sea corals from the
effects of commercial fishing gear in the
Mid-Atlantic. The management
measures implemented in this rule are
intended to protect deep-sea coral and
deep-sea coral habitat while promoting
the sustainable utilization and
conservation of several different marine
resources managed under the authority
of the Mid-Atlantic Fishery
Management Council.
DATES: Effective January 13, 2017.
rmajette on DSK2TPTVN1PROD with RULES
SUMMARY:
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Jkt 241001
Copies of supporting
documents used by the Mid-Atlantic
Fishery Management Council, including
the Environmental Assessment (EA) and
Regulatory Impact Review (RIR)/Initial
Regulatory Flexibility Analysis (IRFA),
are available from: Dr. Christopher M.
Moore, Executive Director, Mid-Atlantic
Fishery Management Council, 800 North
State Street, Suite 201, Dover, DE 19901,
telephone (302) 674–2331. The EA/RIR/
IRFA is also accessible online at https://
www.greateratlantic.fisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Peter Christopher, Supervisory Fishery
Policy Analyst, (978) 281–9288, fax
(978) 281–9135.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Background
On January 16, 2013, the Council
published a Notice of Intent (NOI) to
prepare an Environmental Impact
Statement (78 FR 3401) for Amendment
16 to the Atlantic Mackerel, Squid, and
Butterfish Fishery Management Plan
(FMP) to consider measures to protect
deep-sea corals from the impacts of
commercial fishing gear in the MidAtlantic. The Council conducted
scoping meetings during February 2013
to gather public comments on these
issues. Following further development
of Amendment 16 through 2013 and
2014, the Council conducted public
hearings in January 2015. Following
public hearings, and with disagreement
about the boundaries of the various
alternatives, the Council held a
workshop with various stakeholders on
April 29–30, 2015, to further refine the
deep-sea coral area boundaries. The
workshop was an example of effective
collaboration among fishery managers,
the fishing industry, environmental
organizations, and the public to develop
management recommendations with
widespread support. The Council
adopted Amendment 16 on June 10,
2015, and submitted Amendment 16 on
August 15, 2016, for final review by
NMFS, acting on behalf of the Secretary
of Commerce. NMFS published a Notice
of Availability (NOA) announcing its
review of Amendment 16 on September
2, 2016 (81 FR 60666), and a proposed
rule including implementing regulations
on September 27, 2016 (81 FR 66245).
The public comment period for both the
NOA and proposed rule ended on
November 1, 2016.
The Council developed the action,
and the measures described in this
notice, under the discretionary
provisions for deep-sea coral protection
in section 303(b) of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
PO 00000
Frm 00062
Fmt 4700
Sfmt 4700
Act). This provision gives the Regional
Fishery Management Councils the
authority to:
(A) Designate zones where, and
periods when, fishing shall be limited,
or shall not be permitted, or shall be
permitted only by specified types of
fishing vessels or with specified types
and quantities of fishing gear;
(B) Designate such zones in areas
where deep-sea corals are identified
under section 408 (this section describes
the deep-sea coral research and
technology program), to protect deepsea corals from physical damage from
fishing gear or to prevent loss or damage
to such fishing gear from interactions
with deep-sea corals, after considering
long-term sustainable uses of fishery
resources in such areas; and
(C) With respect to any closure of an
area under the Magnuson-Stevens Act
that prohibits all fishing, ensure that
such closure:
(i) Is based on the best scientific
information available;
(ii) Includes criteria to assess the
conservation benefit of the closed area;
(iii) Establishes a timetable for review
of the closed area’s performance that is
consistent with the purposes of the
closed area; and
(iv) Is based on an assessment of the
benefits and impacts of the closure,
including its size, in relation to other
management measures (either alone or
in combination with such measures),
including the benefits and impacts of
limiting access to: Users of the area,
overall fishing activity, fishery science,
and fishery and marine conservation.
Consistent with these provisions, the
Council recommended the measures in
Amendment 16 to balance the impacts
of measures implemented under this
discretionary authority with the
management objectives of the Mackerel,
Squid, and Butterfish FMP and the
value of potentially affected commercial
fisheries.
Approved Measures
Deep-Sea Coral Protection Area
This final rule creates a deep-sea coral
protection area in Mid-Atlantic waters.
It consists of a broad zone that starts at
a depth contour of approximately 450
meters (m) and extends to the U.S.
Exclusive Economic Zone (EEZ)
boundary, and to the north and south to
the boundaries of the Mid-Atlantic
waters (as defined in the MagnusonStevens Act). In addition, the deep-sea
coral protection area includes 15
discrete zones that outline deep-sea
canyons on the continental shelf in MidAtlantic waters. The deep-sea coral area,
including both broad and discrete
zones, is one continuous area.
E:\FR\FM\14DER1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)]
[Rules and Regulations]
[Pages 90241-90246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29984]
[[Page 90241]]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 160129062-6999-02]
RIN 0648-BF49
Atlantic Highly Migratory Species; Commercial Retention Limit for
Blacknose Sharks and Non-Blacknose Small Coastal Sharks in the Atlantic
Region
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes a commercial retention limit of
eight blacknose sharks for all Atlantic shark limited access permit
holders in the Atlantic region south of 34[deg]00' N. latitude. NMFS
manages four small coastal shark (SCS) species in the Atlantic:
Blacknose, Atlantic sharpnose, finetooth, and bonnethead. All of these
species except blacknose sharks are managed in a management group
called the ``non-blacknose SCS.'' This action is being taken to reduce
discards of non-blacknose small coastal sharks (SCS) while increasing
the utilization of available Atlantic non-blacknose SCS quota and aid
in rebuilding and ending overfishing of Atlantic blacknose sharks. The
final action affects fishermen who fish in the Atlantic region and who
hold commercial shark limited access permits. In addition, this final
rule implements two small, unrelated administrative changes to existing
regulatory text to remove cross-references to an unrelated section and
a section that does not exist. These two changes are administrative in
nature, and are not expected to result in any impacts to the
environment or current fishing operations.
DATES: Effective on January 13, 2017.
ADDRESSES: Copies of the supporting documents--the Final Environmental
Assessment (EA) for this final action, the 2006 Consolidated Highly
Migratory Species (HMS) Fishery Management Plan (FMP) and its
amendments, and the annual HMS Stock Assessment and Fishery Evaluation
(SAFE) Reports--are available from the HMS Management Division Web site
at https://www.nmfs.noaa.gov/sfa/hms/ or by contacting the HMS
Management Division by phone at 301-427-8503.
FOR FURTHER INFORMATION CONTACT: Gu[yacute] DuBeck, Larry Redd, Cliff
Hutt, or Karyl Brewster-Geisz by telephone at 301-427-8503.
SUPPLEMENTARY INFORMATION: Atlantic sharks are directly managed under
the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), and the authority to issue
regulations has been delegated from the Secretary of Commerce to the
Assistant Administrator (AA) for Fisheries, NOAA. NMFS published in the
Federal Register (71 FR 59058) final regulations, effective November 1,
2006 implementing the 2006 Consolidated Highly Migratory Species (HMS)
Fishery Management Plan (FMP), which details management measures for
Atlantic HMS fisheries. The implementing regulations for the 2006
Consolidated HMS FMP and its amendments are at 50 CFR part 635. This
final rule establishes a commercial retention limit of eight blacknose
sharks per trip in the Atlantic region south of 34[deg]00' N. latitude.
Background
NMFS published a proposed rule on August 3, 2016 (81 FR 51165),
outlining the alternatives analyzed in the Draft EA, identifying the
preferred alternative, and soliciting public comments on the measures,
which would impact the blacknose shark and non-blacknose SCS fisheries
in the Atlantic region. Specifically, the proposed rule proposed
establishing a commercial retention limit of eight blacknose sharks in
the Atlantic region south of 34[deg]00' N. latitude but also considered
alternatives that would establish a commercial retention limit of non-
blacknose SCS for shark directed access permit holders in the Atlantic
region south of 34[deg]00' N. latitude once the blacknose shark quota
is reached, as well as two other alternatives regarding potential
commercial retention limits for blacknose sharks. The full description
of the management and conservation measures considered is included in
both the Final EA and the proposed rule and is not repeated here. The
comment period for the Draft EA and proposed rule ended on September
20, 2016. The comments received, and responses to those comments, are
summarized below under the heading labeled Response to Comments.
This final rule establishes a commercial retention limit of eight
blacknose sharks for all Atlantic shark limited access permit holders
in the Atlantic region south of 34[deg]00' N. latitude. This rulemaking
only focuses on the Atlantic region south of 34[deg]00' N. latitude
since NMFS prohibited the retention and landings of blacknose sharks in
the Gulf of Mexico and north of 34[deg]00' N. latitude in 2015. This
final action should reduce discards of non-blacknose SCS while
increasing the utilization of available Atlantic non-blacknose SCS
quota and aid in rebuilding and ending overfishing of Atlantic
blacknose sharks.
Finally, this rule makes administrative changes to existing
regulatory text. Specifically, in two locations in Sec. 635.24(a), the
regulations make reference to paragraphs (a)(4)(iv) through (vi); those
cross-references are unnecessary because the Commercial Caribbean Small
Boat permit under (a)(4)(iv) is a separate permit from the shark
limited access permits and there is no (a)(4)(v) and (a)(4)(vi)
regulations. This final rule implements changes to the regulations in
50 CFR part 635 to correct those regulatory cross-references.
Response to Comments
During the proposed rule stage, NMFS received 15 written and oral
comments. NMFS also received feedback from: The HMS Advisory Panel on
September 8, 2016; constituents who attended the conference call/
webinar held on August 16, 2016; and constituents who attended the
public hearing on August 24, 2016, in Cocoa Beach, FL. Additionally,
NMFS consulted with the South Atlantic Fishery Management Council on
September 15, 2016. A summary of the comments received on the proposed
rule during the public comment period is provided below with NMFS'
responses. All written comments submitted during the comment period can
be found at https://www.regulations.gov by searching for NOAA-NMFS-2016-
0095.
Comment 1: NMFS received a number of comments regarding the
preferred retention limit of eight blacknose sharks per trip within the
Atlantic region south of 34[deg]00' N. latitude. The South Atlantic
Fishery Management Council, a number of HMS Advisory Panel members, and
other commenters supported the preferred retention limit of eight
blacknose sharks per trip within the Atlantic region south of
34[deg]00' N. latitude. Some commenters were concerned that the
preferred retention limit was not low enough and would still result in
the early closure of the non-blacknose SCS fishery. Some commenters
suggested that the preferred retention limit of eight blacknose sharks
per trip should apply only to directed shark limited access permit
holders and that incidental shark limited access permit holders should
not be allowed to land blacknose sharks or should have a lower
retention limit. Lastly, other
[[Page 90242]]
commenters suggested that NMFS should adjust the blacknose shark
retention limit on an inseason basis, similar to what is done in the
large coastal shark fishery.
Response: In this final action, NMFS is establishing a commercial
retention limit of eight blacknose sharks per trip because the
retention limit would have moderate beneficial ecological impacts on
blacknose sharks, neutral ecological impacts on non-blacknose SCS, and
minor beneficial socioeconomic impacts for SCS fishermen because they
would be able to continue utilizing the non-blacknose SCS quota. Based
on the analyses conducted, NMFS believes this retention limit would
allow between 40 and 96 lb dw blacknose sharks to be landed per trip,
depending on the average weight of blacknose sharks used. Using these
weights landed per trip, the full blacknose shark quota could be landed
in approximately 395 to 948 trips. This result is more than double and
could be as high as 10 times the number of trips that harvested the
blacknose quota from the 2011 to 2015 average. As such, the final
retention limit of eight blacknose sharks per trip should allow for the
blacknose and non-blacknose SCS quotas to remain open throughout the
year and not cause the fisheries to close early. Because the retention
limit should allow for the fisheries to remain open and because
incidental shark permit holders by definition do not target sharks,
NMFS does not believe it is necessary to consider separate blacknose
retention limits by permit type. Regarding the comment about inseason
adjustments to the retention limit, NMFS did not consider establishing
an adjustable retention limit for blacknose sharks because this species
should only be landed at incidental levels in order to allow for
rebuilding and the final action to establish an eight blacknose shark
retention limit should prevent early closure of the SCS fishery. NMFS
may revisit inseason adjustments to the blacknose shark retention limit
in the future as warranted.
Comment 2: NMFS received a comment suggesting that the average
dressed weight for blacknose sharks should be increased from the 5 lb
dw used in the latest stock assessment to 10 to 20 lb dw because larger
blacknose sharks are more typically landed in the fishery.
Response: In all the calculations in the proposed rule, NMFS used
an average dressed weight of 5 lb for blacknose sharks. This average
weight is the average weight that was derived for the 2011 stock
assessment using a length-weight conversion function. However, based on
these public comments, NMFS reviewed data from observed bottom longline
and gillnet trips that landed blacknose sharks in the years 2013
through 2015 and found that these data indicate that fishermen are
landing blacknose sharks with an average weight of 12 lb dw. As a
result, NMFS provided information on both weights in the final EA and
final rule. Based on data analysis, using either average weight would
support using an eight blacknose shark retention limit and accomplish
the goals of the rulemaking.
Comment 3: NMFS received a comment requesting the removal of the
quota linkage between the blacknose shark and the South Atlantic non-
blacknose SCS quotas so that fishermen would not have to discard non-
blacknose SCS after the blacknose quota is filled.
Response: The objectives of this action are to continue rebuilding
the Atlantic blacknose shark stock; to aid in ending overfishing of the
Atlantic blacknose shark stock; to aid in achieving optimum yield in
the blacknose and non-blacknose-SCS fisheries; and to reduce dead
discards of small coastal sharks. The quota linkage was established to
prevent further overfishing and aid in rebuilding blacknose sharks.
Without the quota linkage, fishermen would lose an important incentive
for avoiding blacknose sharks, thus jeopardizing the rebuilding plan
for blacknose sharks and potentially increasing overfishing of
blacknose sharks.
Comment 4: NMFS received a comment suggesting that the SCS season
open in September instead of January.
Response: The final action does not reanalyze the overall start
date for SCS, which was analyzed in the 2006 Consolidated HMS FMP and
its amendments. NMFS could consider this in a future rulemaking.
Comment 5: NMFS received a comment requesting that the 80-percent
threshold closure policy for shark fisheries be changed.
Response: NMFS' goal is to allow shark fishermen to harvest the
full quota without exceeding it in order to maximize economic benefits
to stakeholders while achieving conservation goals, including
preventing overfishing. The 80-percent threshold closure policy refers
to NMFS calculating that the overall, regional, and/or sub-regional
landings for any species and/or management group has reached or is
projected to reach 80 percent of the available overall, regional, and/
or sub-regional quota and NMFS closing the species and/or management
groups for the rest of the season. Based on current experiences with
monitoring quotas for all shark species and management groups, NMFS
believes that the 80-percent threshold allows for all or almost the
entire quota to be harvested without exceeding the quota. As such, NMFS
expects that, in general, the quotas would be harvested between the
time that the 80-percent threshold is reached and the time that the
season actually closes. In addition, NMFS must also account for late
reporting by shark dealers even with the improved electronic dealer
system and provide a buffer to include landings received after the
reporting deadline in an attempt to avoid overharvests. NMFS will
continue to evaluate the 80-percent threshold and may consider changes
in a future rulemaking.
Comment 6: NMFS received a comment suggesting that an Atlantic
blacknose update stock assessment be performed in 2019 along with the
Atlantic blacktip benchmark assessment.
Response: Most of the domestic shark stock assessments follow the
Southeast Data, Assessment Review (SEDAR) process. This process is also
used by the South Atlantic, Gulf of Mexico, and Caribbean Fishery
Management Councils and is designed to provide transparency throughout
the stock assessment. With regard to the timing of upcoming shark stock
assessments, NMFS aims to conduct a number of shark stock assessments
every year and to regularly reassess these stocks. The number of
species that can be assessed each year depends on whether assessments
are establishing baselines or are only updates to previous assessments.
Assessments also depend on ensuring there are data available for a
particular species. In addition to the shark assessments being
conducted by the International Commission for the Conservation of
Atlantic Tunas (ICCAT), NMFS intends to conduct, through the SEDAR
process, a sandbar shark benchmark assessment in 2017, a Gulf of Mexico
blacktip shark update assessment in 2018, and an Atlantic blacktip
benchmark assessment in 2019. NMFS will continue to monitor options for
future stock assessments, including an assessment for Atlantic
blacknose sharks.
Classification
The NMFS Assistant Administrator has determined that the final rule
is necessary for the conservation and management of the Atlantic shark
fisheries and that it is consistent with the Magnuson-Stevens Act and
other applicable laws.
[[Page 90243]]
This final action has been determined to be not significant for
purposes of Executive Order 12866.
A Final Regulatory Flexibility Analysis (FRFA) was prepared for
this rule pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C.
604 (c)(1)-(4)). The FRFA incorporates the Initial Regulatory
Flexibility Analysis (IRFA), a summary of the significant issues raised
by the public comments in response to the IRFA, NMFS responses to those
comments, 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.
Under Section 604(a)(1) of the RFA, the management goals and
objectives of the preferred alternative are to provide for the
sustainable management of SCS species under authority of the Secretary
consistent with the requirements of the Magnuson-Stevens Act and other
statutes which may apply to such management, including the Endangered
Species Act, Marine Mammal Protection Act, and Atlantic Tunas
Convention Act. The Magnuson-Stevens Act mandates that the Secretary
provide for the conservation and management of HMS through development
of an FMP for species identified for management and to implement the
FMP with necessary regulations. In addition, the Magnuson-Stevens Act
directs the Secretary, in managing HMS, to prevent overfishing of
species while providing for their optimum yield on a continuing basis
and to rebuild fish stocks that are considered overfished. The
management objective of the preferred alternative is to implement
management measures for the Atlantic SCS fishery that will further the
objective of preventing overfishing while achieving (on a continuing
basis) optimum yield, and aid in rebuilding overfished shark stocks.
Section 604(a)(2) of the RFA requires a summary of the significant
issues raised by the public comments in response to the IRFA, a summary
of the Agency's assessment of such issues, and a statement of any
changes made in the rule as a result of such comments. NMFS received
several comments on the proposed rule and Draft EA during the public
comment period. Summarized public comments and NMFS' responses to them
are included in Appendix A of this document. Section 604(a)(3) of the
RFA requires the Agency to respond to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
response to the proposed rule, and a detailed statement of any change
made in the rule as a result of such comments. NMFS did not receive any
comments from the Chief Counsel for Advocacy of the SBA nor the public
in response to this document.
Section 604(a)(3) of the RFA requires agencies to provide an
estimate of the number of small entities to which the rule would apply.
The Small Business Administration (SBA) has established size criteria
for all major industry sectors in the United States, including fish
harvesters. Provision is made under SBA's regulations for an agency to
develop its own industry-specific size standards after consultation
with Advocacy and an opportunity for public comment (see 13 CFR
121.903(c)). Under this provision, NMFS may establish size standards
that differ from those established by the SBA Office of Size Standards,
but only for use by NMFS and only for the purpose of conducting an
analysis of economic effects in fulfillment of the agency's obligations
under the RFA. To utilize this provision, NMFS must publish such size
standards in the Federal Register (FR), which NMFS did on December 29,
2015 (80 FR 81194, December 29, 2015). In this final rule, effective on
July 1, 2016, NMFS established a small business size standard of $11
million in annual gross receipts for all businesses in the commercial
fishing industry (NAICS 11411) for RFA compliance purposes (80 FR
81194, December 29, 2015). NMFS considers all HMS permit holders to be
small entities because they have average annual receipts of less than
$11 million for commercial fishing.
This final rule would apply to the 499 commercial shark permit
holders in the Atlantic shark fishery, based on an analysis of permit
holders as of November 2015. Of these permit holders, 224 have directed
shark permits and 275 hold incidental shark permits. Not all permit
holders are active in the fishery in any given year. Active directed
permit holders are defined as those with valid permits that landed one
shark based on 2015 HMS electronic dealer reports. Of the 499 permit
holders, only 27 permit holders landed SCS in the Atlantic region and
of those only 13 landed blacknose sharks. NMFS has determined that the
final rule would not likely affect any small governmental
jurisdictions.
Section 604(a)(4) of the RFA requires Agencies to describe any new
reporting, record-keeping and other compliance requirements. The action
does not contain any new collection of information, reporting, or
record-keeping requirements. The alternatives considered would adjust
the commercial retention limits for the SCS fisheries, which would mean
new compliance requirements for the shark fishery participants in the
Atlantic region south of 34[deg]00' N. latitude, but which are similar
to other compliance requirements the fishermen already follow.
Section 604(a)(5) of 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. Additionally, the RFA lists four general categories of
``significant'' alternatives that would assist an agency in the
development of significant alternatives. These categories of
alternatives are: (1) Establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities; (2) Clarification,
consolidation, or simplification of compliance and reporting
requirements under the rule for such small entities; (3) Use of
performance rather than design standards; and (4) Exemptions from
coverage of the rule, or any part thereof, for small entities.
In order to meet the objectives of this final rule, consistent with
the Magnuson-Stevens Act and the Endangered Species Act, NMFS cannot
establish differing compliance requirements for small entities or
exempt small entities from compliance requirements. 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. As described below, NMFS analyzed several different alternatives
in this final rulemaking and provides rationales for identifying the
preferred alternatives to achieve the desired objectives.
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.
Alternative 1, the No Action alternative, would not implement any
new retention limits for blacknose sharks or non-blacknose SCS in the
Atlantic region south of 34[deg]00' N. latitude beyond those already in
effect for current Atlantic shark limited access permit holders. NMFS
would continue to allow fishermen with a direct limited access permit
to land unlimited sharks per trip and allow fishermen with an
incidental permit to land 16 combined SCS and pelagic sharks per vessel
per trip. In 2010, Amendment 3 to the 2006
[[Page 90244]]
Consolidated HMS FMP established, among other things, a quota for
blacknose sharks separate from the SCS quota. The 2011 blacknose shark
stock assessment determined that separate stocks of blacknose sharks
existed in the Gulf of Mexico and the Atlantic. Amendment 5a to the
2006 Consolidated HMS FMP established, among other things, regional
quotas for non-blacknose SCS and blacknose sharks in the Gulf of Mexico
and the Atlantic in 2013. These blacknose shark and non-blacknose SCS
quotas are linked by region and the regional SCS fishery closes when
the blacknose quota is reached. This linkage has resulted in the early
closure of the entire SCS fishery due to high abundance of blacknose
shark landings. Closure of the fishery as a result of Atlantic
blacknose rapid harvest leaves the non-blacknose shark SCS quota
underutilized. Between 2014 and 2015, the Atlantic non-blacknose SCS
quota was underutilized by an average of 314,625 lb dw, or 54 percent
of the quota. This represents an average annual ex-vessel loss of
$298,583 for the fishery, assuming an average value for 2014-2015 of
$0.74/lb dw for meat and $4.18/lb dw for fins. Based on the 27 vessels
that landed SCS in the Atlantic, the individual vessel impact would be
an approximate loss of $11,059 per year.
Alternative 2a would remove the quota linkage to blacknose sharks
for shark directed limited access permit holders in the Atlantic region
south of 34[deg]00' N. latitude once the blacknose shark quota is
reached and would implement a commercial retention limit of 50 non-
blacknose SCS per trip at that point. Additionally, this alternative
would adjust the blacknose shark quota to 15.0 mt dw (33,069 lb dw)
assuming a 5 lb dw carcass, or 11.8 mt dw (26,089 lb dw) assuming a 12
lb dw carcass. Reduction of the blacknose shark quota would result in
an average ex-vessel revenue loss of $5,275 for the fishery assuming a
5 lb dw carcass, or $12,660 assuming a 12 lb dw carcass. Conversely,
increased landings of non-blacknose SCS would result in an overall
estimated average ex-vessel revenue gain of $34,470 for the fishery.
NMFS estimates that this bycatch retention limit would result in a net
gain of $21,810 to $29,195 in average ex-vessel revenue for the fishery
per year depending on the average carcass weight of blacknose sharks,
or $808 to $1,081 per vessel for the 27 vessels that targeted non-
blacknose SCS in 2015.
Alternative 2b would remove the quota linkage to blacknose sharks
for shark directed limited access permit holders in the Atlantic region
south of 34[deg]00' N. latitude once the blacknose shark quota is
reached and would implement a commercial retention limit of 150 non-
blacknose SCS per trip at that point. Additionally, this alternative
would adjust the blacknose shark quota to 10.5 mt dw (23,148 lb dw)
assuming a 5 lb dw carcass, or 1.1 mt dw (2,521 lb dw) assuming a 12 lb
dw carcass. Reduction of the blacknose shark quota would result in an
average ex-vessel revenue loss of $15,783 for the fishery assuming a 5
lb dw carcass, or $37,878 assuming a 12 lb dw carcass. Conversely,
increased landings of non-blacknose SCS would result in an overall
estimated average ex-vessel revenue gain of $65,139 for the fishery.
NMFS estimates that this bycatch retention limit would result in a net
gain of $27,261 to $49,357 in average ex-vessel revenue for the fishery
per year depending on the average carcass weight of blacknose sharks,
or approximately $1,010 to $1,828 per vessel for the 27 vessels that
targeted non-blacknose SCS in 2015.
Alternative 2c would remove the quota linkage to blacknose sharks
for shark directed limited access permit holders in the Atlantic region
south of 34[deg]00' N. latitude once the blacknose shark quota is
reached and would implement a commercial retention limit of 250 non-
blacknose SCS per trip at that point. This alternative would also
adjust the blacknose shark quota to 6.1 mt dw (13,448 lb dw) assuming a
5 lb dw carcass, or 0.0 mt dw (0.0 lb dw) assuming a 12 lb dw carcass.
Reduction of the blacknose shark quota would result in an average ex-
vessel revenue loss of $26,295 for the fishery assuming a 5 lb dw
carcass, or $40,575 assuming a 12 lb dw carcass. Conversely, increased
landings of non-blacknose SCS would result in an estimated average ex-
vessel revenue gain of $80,339 for the fishery. NMFS estimates that
this bycatch retention limit would result in a net gain of $39,764 to
$54,044 in average ex-vessel revenue for the fishery per year depending
on the average carcass weight of blacknose sharks, or approximately
$1,473 to $2,002 per vessel for the 27 vessels that targeted non-
blacknose SCS in 2015.
Alternative 3a would establish a commercial retention limit of 50
blacknose sharks per trip for shark directed limited access permit
holders in the Atlantic region south of 34[deg]00' N. latitude and
maintain the quota linkage between blacknose sharks and non-blacknose
SCS. This alternative would have minor beneficial to neutral economic
impacts as a retention limit of this size would allow an average of 250
to 600 lb dw blacknose sharks per trip and would take an estimated 63
to 152 trips for fishermen to land the full blacknose shark quota. This
alternative will prevent targeted take of blacknose sharks as the per
trip value of 50 blacknose sharks would range between $270 ($218 for
meat and $52 for fins) assuming an average weight of 5 lb dw per
blacknose shark, and $642 ($522 for meat and $120 for fins) assuming an
average weight of 12 lb dw for the estimated 13 vessels that land
blacknose sharks in the Atlantic. Based on 2015 eDealer reports, 106
trips landed blacknose sharks, and between 14 and 33 percent landed
blacknose sharks in excess of a commercial retention limit of 50
blacknose sharks depending on the average trip weight used in the
calculations (250-600 lb dw). This alternative would likely increase
the number of trips needed to fill the blacknose shark quota when
compared to the average from 2010 through 2015 under Alternative 1. A
retention limit of 50 blacknose sharks could potentially cause the SCS
fisheries to close as early as June or July if every trip landing
blacknose sharks landed the full retention limit but, since few
fishermen land that many blacknose sharks per trip now, NMFS believes a
change in behavior as a result of this alternative is unlikely.
Alternative 3b would establish a commercial retention limit of 16
blacknose sharks per trip for all Atlantic shark limited access permit
holders in the Atlantic region south of 34[deg]00' N. latitude and
maintain the quota linkage between blacknose sharks and non-blacknose
SCS. This alternative would have minor beneficial economic impacts as a
retention limit of this size would allow an average of 80 to 192 lb dw
blacknose sharks per trip and would take an estimated 198 to 474 trips
for fishermen to land the full blacknose shark quota. Based on 2015
eDealer reports, 38 to 55 percent of the overall number of trips landed
blacknose sharks in excess of a commercial retention limit of 16
blacknose sharks depending on the average trip weight used in the
calculations (80-192 lb dw). This alternative would dramatically
increase the number of trips needed to fill the blacknose shark quota
when compared to the yearly averages under Alternative 1. Currently,
the linkage between the blacknose shark quota and the non-blacknose SCS
quota causes the closure of both fisheries once the lower blacknose
shark quota is attained. NMFS expects that, under this alternative, the
blacknose shark quota would not be filled and the SCS fisheries in the
South Atlantic region
[[Page 90245]]
would not close early. Thus, this alternative would have minor
beneficial economic impacts to the Atlantic SCS fisheries as it would
allow for the potential full-utilization of the non-blacknose SCS
quota, and potentially increase total ex-vessel revenue by as much as
$298,583 a year. However, given the low monthly trip rates occurring to
harvest SCS in the Atlantic, the non-blacknose SCS quota is likely to
remain underutilized. Using calculations based on observed trip and
landings rates of non-blacknose SCS in 2015, a more likely result of
this alternative would be additional landings of 104,962 lb dw of non-
blacknose SCS valued at $98,664, or approximately $3,654 per vessel for
the 27 vessels that participated in the fishery in 2015. Any financial
losses due to underutilization of the blacknose shark quota would be
minimal in comparison.
Alternative 3c, the preferred alternative, would establish a
commercial retention limit of eight blacknose sharks per trip for all
Atlantic shark limited access permit holders in the Atlantic region
south of 34[deg]00' N. latitude and maintain the quota linkage between
blacknose sharks and non-blacknose SCS. Because this retention limit
would be less than the current retention limit for shark incidental
limited access permit holders, the retention limit for shark incidental
limited access permit holders would need to change slightly. The
adjusted retention limit for incidental permit holders would still
allow fishermen to land a total of 16 pelagic or small coastal sharks
per trip but, of those sharks, no more than eight could be blacknose
sharks. This alternative would have moderate beneficial economic
impacts as a retention limit of this size would allow an average of 40
to 96 lb dw blacknose sharks per trip and would take an estimated 395
to 948 trips to land the full blacknose shark quota. Based on 2015
eDealer reports, 55 to 70 percent of the overall number of trips landed
blacknose sharks in excess of the commercial retention limit of eight
blacknose sharks depending on the average trip weight used in the
calculations (40-96 lb dw). This alternative would dramatically
increase the number of trips needed to fill the blacknose shark quota
when compared to the yearly averages under Alternative 1. Currently,
the linkage between the blacknose shark quota and the non-blacknose SCS
quota causes the closure of both fisheries once the lower blacknose
shark quota is attained. NMFS expects that, under this alternative, the
blacknose shark quota would not be filled and the SCS fisheries in the
South Atlantic region would not close early. Thus, this would have
moderate beneficial economic impacts as the fishermen would still be
allowed to land blacknose sharks and the fishery would remain open for
a longer period of time, significantly increasing non-blacknose SCS
revenues by as much as $298,583 a year on average if the non-blacknose
SCS quota is fully utilized. However, given current monthly trip rates
in the Atlantic the non-blacknose SCS quota is likely to remain
underutilized. Using calculations based on observed trip and landings
rates of non-blacknose SCS in 2015, a more likely result of this
alternative would be additional landings of 104,962 lb dw of non-
blacknose SCS valued at $98,664, or approximately $3,654 per vessel for
the 27 vessels that participated in the fishery in 2015. Any financial
losses due to underutilization of the blacknose shark quota would be
minimal in comparison.
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 listserv notice 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., the listserv notice,
will be sent to all fishermen who hold commercial shark limited access
permits. 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: December 7, 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.
0
2. In Sec. 635.24, revise paragraphs (a)(2), (a)(3), (a)(4)(ii), and
(a)(4)(iii) to read as follows:
Sec. 635.24 Commercial retention limits for sharks, swordfish, and
BAYS tunas.
* * * * *
(a) * * *
(2) The commercial retention limit for LCS other than sandbar
sharks for a person who owns or operates a vessel that has been issued
a directed LAP for sharks and does not have a valid shark research
permit, or a person who owns or operates a vessel that has been issued
a directed LAP for sharks and that has been issued a shark research
permit but does not have a NMFS-approved observer on board, may range
between zero and 55 LCS other than sandbar sharks per vessel per trip
if the respective LCS management group(s) is open per Sec. Sec. 635.27
and 635.28. Such persons may not retain, possess, or land sandbar
sharks. At the start of each fishing year, the default commercial
retention limit is 45 LCS other than sandbar sharks per vessel per trip
unless NMFS determines otherwise and files with the Office of the
Federal Register for publication notification of an inseason
adjustment. During the fishing year, NMFS may adjust the retention
limit per the inseason trip limit adjustment criteria listed in
paragraph (a)(8) of this section.
(3) A person who owns or operates a vessel that has been issued an
incidental LAP for sharks and does not have a valid shark research
permit, or a person who owns or operates a vessel that has been issued
an incidental LAP for sharks and that has been issued a valid shark
research permit but does not have a NMFS-approved observer on board,
may retain, possess, or land no more than 3 LCS other than sandbar
sharks per vessel per trip if the respective LCS management group(s) is
open per Sec. Sec. 635.27 and 635.28. Such persons may not retain,
possess, or land sandbar sharks.
(4) * * *
(ii) A person who owns or operates a vessel that has been issued a
shark LAP and is operating south of 34[deg]00' N. lat. in the Atlantic
region, as defined at Sec. 635.27(b)(1), may retain, possess, land, or
sell blacknose and non-blacknose SCS if the respective blacknose and
non-blacknose SCS management groups are open per Sec. Sec. 635.27 and
635.28. Such
[[Page 90246]]
persons may retain, possess, land, or sell no more than 8 blacknose
sharks per vessel per trip. A person who owns or operates a vessel that
has been issued a shark LAP and is operating north of 34[deg]00' N.
lat. in the Atlantic region, as defined at Sec. 635.27(b)(1), or a
person who owns or operates a vessel that has been issued a shark LAP
and is operating in the Gulf of Mexico region, as defined at Sec.
635.27(b)(1), may not retain, possess, land, or sell any blacknose
sharks, but may retain, possess, land, or sell non-blacknose SCS if the
respective non-blacknose SCS management group is open per Sec. Sec.
635.27 and 635.28.
(iii) Consistent with paragraph (a)(4)(ii) of this section, a
person who owns or operates a vessel that has been issued an incidental
shark LAP may retain, possess, land, or sell no more than 16 SCS and
pelagic sharks, combined, per vessel per trip, if the respective
fishery is open per Sec. Sec. 635.27 and 635.28. Of those 16 SCS and
pelagic sharks per vessel per trip, no more than 8 shall be blacknose
sharks.
* * * * *
[FR Doc. 2016-29984 Filed 12-13-16; 8:45 am]
BILLING CODE 3510-22-P
