[Federal Register Volume 77, Number 193 (Thursday, October 4, 2012)]
[Rules and Regulations]
[Pages 60632-60637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24429]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 120416016-2469-02]
RIN 0648-BB96
Atlantic Highly Migratory Species; Silky Shark Management
Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS implements the International Commission for the
Conservation of Atlantic Tunas (ICCAT) Recommendation 11-08, which
prohibits retaining, transshipping, or landing of silky sharks
(Carcharhinus falciformis) caught in association with ICCAT fisheries.
In order to facilitate domestic compliance and enforcement, NMFS also
prohibits the storing, selling, and purchasing of the species. This
rule primarily affects the commercial Atlantic highly migratory species
(HMS) pelagic longline fishery for tuna and tuna-like species in the
Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico. This
rule does not affect commercial fishermen fishing for sharks with
bottom longline, gillnet, or handgear, and it does not further affect
recreational fishermen because harvesting silky sharks is already
prohibited in the recreational fishery. This action implements the
ICCAT recommendation, consistent with the Atlantic Tunas Convention Act
(ATCA), and furthers domestic management objectives under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
DATES: Effective November 5, 2012.
ADDRESSES: Supporting documents, including the Environmental Assessment
(EA), Regulatory Impact Review (RIR), and Final Regulatory Flexibility
Analysis (FRFA), and others, such as the Fishery Management Plans
described below, may be downloaded from the Highly Migratory Species
(HMS) Management Division Web site at www.nmfs.noaa.gov/sfa/hms/. These
documents also are available by request at the telephone number below.
FOR FURTHER INFORMATION CONTACT: Peter Cooper or Karyl Brewster-Geisz
by phone: 301-427-8503 or by fax: 301-713-1917.
SUPPLEMENTARY INFORMATION: The U.S. Atlantic shark fisheries are
managed under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
et seq. The U.S. Atlantic tuna and tuna-like species fisheries are
managed under the dual authority of the Magnuson-Stevens Act and ATCA,
16 U.S.C. 971 et seq. Under ATCA, the Secretary of Commerce (Secretary)
shall promulgate such regulations as may be necessary and appropriate
to carry out ICCAT recommendations. ICCAT is responsible for the
conservation of tuna and tuna-like species in the Atlantic Ocean and
adjacent seas. ICCAT recommendations are binding on Contracting
Parties, unless Parties object pursuant to the treaty. All ICCAT
recommendations are available on the ICCAT Web site at http://www.iccat.int/en/. The authority to issue regulations under the
Magnuson-Stevens Act and ATCA has been delegated from the Secretary to
the Assistant Administrator for Fisheries (AA), NOAA. The implementing
regulations for Atlantic HMS are at 50 CFR part 635.
Background
At the 22nd Regular Meeting of ICCAT in 2011, ICCAT adopted
Recommendation 11-08 (the ``Recommendation by ICCAT on the Conservation
of Silky Sharks Caught in Association with ICCAT Fisheries''), which
requires the United States to initiate rulemaking in order to fulfill
obligations as a Contracting Party to the Convention. Recommendation
11-08 requires fishing vessels operating in ICCAT-managed fisheries to
release all silky sharks whether dead or alive, and prohibits retaining
on board, transshipping, or landing any part or whole carcass of a
silky shark (Carcharhinus falciformis). The ICCAT recommendation cites
the fact that silky sharks were ranked as the species with the highest
degree of vulnerability in ICCAT's 2010 ecological risk assessment for
Atlantic sharks.
Further background information, including the need for these silky
shark management measures, was provided in the preamble to the proposed
rule (77 FR 37647, June 22, 2012) and is not repeated here.
NMFS prepared an EA/RIR/FRFA, which presents and analyzes
anticipated environmental, social, and economic impacts of each
alternative contained in this final rule. The complete list of
alternatives and related analyses is provided in the EA/RIR/FRFA, and
is not repeated here. A copy of the EA/RIR/FRFA prepared for this
action is available from NMFS (see ADDRESSES).
In this final action, NMFS prohibits the retention of silky sharks
on Atlantic HMS commercially-permitted vessels that have pelagic
longline gear on board. As described in the Changes from the Proposed
Rule section below, this final action also prohibits the retention of
silky sharks on vessels that are issued both an HMS Charter/Headboat
permit and a commercial shark permit, when tuna, swordfish or billfish
are on board the vessel. Additionally, as described in the response to
comments below and in the EA, NMFS prohibits the storing, selling, or
purchasing of silky sharks to facilitate domestic compliance and
enforcement.
[[Page 60633]]
Comments and Responses
NMFS received five written public comments on the proposed rule.
There were no attendees at the public hearing held via conference call
on July 9, 2012. Below, NMFS summarizes and responds to all comments
made specifically on the proposed rule.
Comment 1: Given concerns about the vulnerability of silky sharks,
retention of silky sharks should be prohibited in all HMS fisheries
(commercial and recreational), and these species should be added to the
prohibited species list.
Response: The purpose of this action is to implement ICCAT
Recommendation 11-08, which requires the release of silky sharks
``caught in association with ICCAT fisheries.'' Consistent with
previous rulemakings (see response to comment 2, below), NMFS
interprets ``ICCAT fisheries'' to mean fisheries for tuna and tuna-like
species and to not include directed shark fisheries or other HMS
fisheries. Therefore, the request to expand this requirement to other
fisheries is outside the scope of this rulemaking. NMFS manages the
U.S. directed commercial shark fisheries through a variety of domestic
management measures consistent with the requirements of the Magnuson-
Stevens Act. The commenter further requested that we add silky sharks
to the prohibited species list under the Magnuson-Stevens Act. That
request is also beyond the scope of this rulemaking to implement ICCAT
Recommendation 11-08 under ATCA.
Comment 2: The proposed rule fails to satisfy the federal
government's ICCAT obligations by continuing to allow silky sharks to
be retained in fisheries other than the pelagic longline fishery, which
are clearly included in the scope of ICCAT recommendations. Whether or
not a fishery is targeting sharks is irrelevant. NMFS must consider all
HMS fisheries that are allowed to retain tuna or tuna-like species to
be ICCAT fisheries and must therefore prohibit retention of silky
sharks in all of them. If the true intent is to ensure a reduction in
silky shark mortality and to ensure that ICCAT measures are enforced,
then these prohibitions should apply to all HMS fisheries.
In the process of making the point above, one commenter incorrectly
quoted the text of ICCAT Recommendation 11-08 as ``prohibit retaining
onboard, transshipping, landing, storing, selling, or offering for sale
any part or whole carcass of silky sharks taken in the Convention Area
in association with ICCAT fisheries.''
Response: The relevant ICCAT recommendation was limited in scope to
silky sharks caught in association with ICCAT-managed fisheries.
Therefore, the requirement to release all silky sharks will be applied
only to U.S. fisheries that target tuna and tuna-like species. This
action would affect primarily commercial vessels with pelagic longline
gear onboard that fish for tunas and tuna-like species. During the
preparation of the final rule and in response to the comment, NMFS
determined that, to make the action consistent with the August 29, 2011
action that implemented similar ICCAT Recommendations regarding certain
hammerhead sharks and oceanic whitetip sharks (76 FR 53652), the
regulatory language associated with this action needed to be revised to
specify that the prohibition on retention also applies to a small
number of vessels (currently five) that are issued both an HMS Charter/
Headboat permit and a commercial shark permit when tuna, swordfish or
billfish are on board the vessel. This measure is necessary to ensure
consistency across implementation of ICCAT recommendations and to
enhance compliance and enforcement. These vessels, however, generally
do not target or land silky sharks when they have tunas or tuna-like
species on board. Harvesting silky sharks is already prohibited in the
recreational fishery. Thus, while one or two additional silky sharks
might have to be released in the specified HMS Charter/Headboat and
commercial shark permit combination, inclusion of this permit
combination in the ``ICCAT fisheries'' subject to this rulemaking does
not change the environmental or economic impacts described in the EA/
RIR/IRFA prepared for the proposed action.
U.S. commercial shark fisheries using gear other than pelagic
longline currently are managed through a variety of measures, including
quotas and subquotas, seasons, retention limits, gear restrictions, and
time/area closures. Although silky sharks could be caught on handgear,
bottom longline, or gillnet gear, these gears directly target sharks
and are not used in association with ICCAT fisheries. Additionally,
while it is possible to catch tuna and tuna-like species using
handgear, bottom longline, and gillnet gear, this rarely occurs when
these gear types are used to target sharks. For example, data from
observed bottom longline and gillnet trips show bycatch of two
sailfish, no swordfish, and no managed tunas in 2010 (NMFS, 2011) and
three bigeye tuna and one skipjack tuna in 2011 (Gulak, 2012; Hale et
al., 2012).
Because there are three separate ICCAT shark recommendations with
similar language, NMFS would like to clarify the differences in the
text to reduce potential confusion. Under Recommendation 10-07, ICCAT
parties are required to ``prohibit retaining onboard, transshipping,
landing, storing, selling, or offering for sale any part or whole
carcass of oceanic whitetip sharks in any fishery.'' Under
Recommendation 10-08, ICCAT parties are required to ``prohibit
retaining onboard, transshipping, landing, storing, selling, or
offering for sale any part or whole carcass of hammerhead sharks of the
family Sphyrnidae (except for Sphyrna tiburo) taken in the Convention
Area in association with ICCAT fisheries.'' The language in these two
recommendations differs from that in Recommendation 11-08, under which
ICCAT parties ``shall require fishing vessels flying their flag and
operating in ICCAT managed fisheries to release all silky sharks
whether dead or alive, and prohibit retaining on board, transshipping,
or landing any part or whole carcass of silky shark.'' Recommendation
11-08 for silky sharks does not include language that prohibits
storing, selling and purchasing any part of the shark species. Adding
the prohibitions against storing, selling and purchasing silky sharks
under the specified circumstances would, by making the regulations
consistent with those in place for oceanic whitetip and scalloped,
smooth and great hammerhead sharks, make the regulations easier to
remember and thus would help fishermen and dealers and improve
compliance. The addition would also allow for enforcement of the
prohibition even in cases where the violation is not detected at sea or
during landing. Finally, the extension of the prohibition against the
sale and purchase should help to reduce the market for silky sharks and
encourage compliance with the prohibition on retention.
Comment 3: NMFS' proposal to prohibit retention of silky sharks
only when tuna or tuna-like species are also retained is flawed and may
increase dead discards. A fisherman may catch and keep a silky shark,
thus killing the shark. If the fisherman then catches a tuna or tuna-
like species that he would prefer to keep, the fisherman will dump the
shark overboard dead. The discard mortality would be significantly
higher than if the shark had been released immediately after being
captured.
Response: The action NMFS is taking is to prohibit the retention of
silky sharks on Atlantic HMS commercially-permitted vessels in the
commercial ICCAT fisheries, primarily affecting those that have pelagic
longline gear on
[[Page 60634]]
board. Under this action, in the scenario the commenter describes, a
pelagic longline vessel would be required to release the silky shark
regardless of what other species may be caught on the same trip because
of the pelagic longline gear onboard. A vessel issued both an HMS
Charter/Headboat permit and a commercial shark permit would not be able
to retain both a tuna and a silky shark. This is a very small number of
vessels, however, and very few such situations are expected to arise.
An analysis of the 2006-2010 HMS logbook data indicates that, on
average, a total of 60 silky sharks are kept per year. An additional
1,417 silky sharks per year were caught (on average) and subsequently
discarded (676 released alive and 742 discarded dead, on average). NMFS
does not expect the actual number caught (1,477 per year on average) to
change as a result of this action because fishermen participating in
the pelagic longline fishery do not target or retain large numbers of
silky sharks now and charter vessels typically do not target or land
silky sharks when they have tunas or tuna-like species on board. NMFS
estimates that, of the 60 silky sharks that are currently retained (on
average), 17 (29 percent) would be released alive as a result of this
rulemaking. The number of silky sharks discarded dead would increase
slightly (from 742 to 785, on average) since pelagic longline vessels
would no longer be able to retain any silky sharks, and one or two
silky sharks might have to be released by vessels with the specified
HMS Charter/Headboat and commercial shark permit combination. In
addition, current regulations require that when HMS are released, they
be released in a manner that will ensure maximum probability of
survival, without removing the fish from the water. This is consistent
with the provision of Recommendation 11-08 to promptly release silky
sharks unharmed.
Comment 4: One commenter questioned NMFS' data on shark mortality,
indicating it is antiquated, obsolete, and inaccurate, and stated that
ICCAT is too lax and negligent in protection of species.
Response: The information NMFS used for the environmental and
economic analyses for this action includes both pelagic longline
observer program (POP) data and HMS logbook data from 2006 through
2010. Complete, finalized data from 2011 were not available at the time
the draft EA/RIR/IRFA. NMFS conducted an analysis of the newly
available 2011 data during the public comment period for this action
and determined that, in general, the inclusion of the 2011 data would
not substantially alter any of the data presented in the draft EA/RIR/
IRFA, or result in any changes to the overall conclusions or preferred
alternatives of the draft document.
NMFS has undertaken management measures for all Atlantic HMS
species fully consistent with its legal obligations under the Magnuson-
Stevens Act, ATCA, and other relevant statutes.
Comment 5: One commenter opposed using ICCAT as a vehicle for
management of all sharks, especially large coastal sharks, until there
is firm progress from other countries actively participating in pelagic
shark conservation. Further, seeking shark recommendations at ICCAT
circumvents U.S. domestic fisheries law, including the National
Standards of the Magnuson-Stevens Act, and is contrary to the Food and
Agriculture Organization of the United Nations (FAO) International Plan
of Action, which ``encourages the full use of dead sharks.''
Response: ATCA requires NMFS to implement recommendations adopted
at ICCAT regardless of progress from other countries actively
participating in pelagic shark conservation. Contracting Parties are
required to implement all measures adopted by the commission in their
waters. Issues concerning Contracting Parties' non-compliance with
ICCAT recommendations are addressed in the compliance committee. As
described under Comment 1 above, NMFS does not manage the U.S. directed
shark fishery for LCS or other shark species under ICCAT/ATCA.
The Shark Conservation Act of 2010 includes a provision that urges
international fishery management organizations to which the United
States is a member to adopt shark conservation measures, including
measures to prohibit removal of any of the fins of a shark and
discarding the carcass of the shark at sea.
For example, in the case of shortfin mako, where the United States'
contribution to the overall fishing mortality is small relative to
other ICCAT Parties, developing effective multilateral shark management
measures can be an effective tool for ending overfishing of the entire
shortfin mako stock. This approach is also consistent with National
Standard 3 that states that to the extent practicable, an individual
stock of fish shall be managed as a unit throughout its range, and
interrelated stocks of fish shall be managed as a unit or in close
coordination.
The main objective of the FAO IPOA for the Conservation and
Management of Sharks (IPOA) is to ensure the conservation and
management of sharks and their long-term sustainable use. It calls on
members to ``strive to cooperate through regional and subregional
fisheries organizations or arrangements, and other forms of
cooperation, with a view to ensuring the sustainability of shark
stocks, including, where appropriate, the development of subregional or
regional shark plans.'' The IPOA calls on nations to implement a
National Plan of Action that among other things should aim to ensure
that shark catches from directed and non-directed fisheries are
sustainable as well as identify and provide special attention in
particular to vulnerable or threatened shark stocks. The IPOA provision
regarding the ``full use of dead sharks'' referenced by the commenter
is also an attribute that the FAO IPOA recommends for inclusion in a
nation's national plan of action. In 2001, the United States developed
and implemented the U.S. National Plan of Action for the Conservation
and Management of Sharks in consultation with stakeholders. While it
may be appropriate to require full utilization of certain species, the
Ecological Risk Assessment highlighted that silky sharks are vulnerable
due to limited productivity and susceptible to capture in pelagic
longline fisheries such that ICCAT adopted a ban on retention. NMFS
acknowledges that while this ban on retention may lead to some dead
discards, the release of additional live silky sharks is expected to
assist with sustainability of the resource.
Comment 6: Neither NMFS nor ICCAT has conducted a domestic
``species-specific'' stock assessment for silky sharks. The
justification for Recommendation 11-08 was based on an ecological risk
assessment. NMFS needs to conduct a full benchmark stock assessment for
silky sharks as soon as possible.
Response: ICCAT's Standing Committee on Research and Statistics
(SCRS) is responsible for conducting all ICCAT stock assessments and
biological reviews for species included in the ICCAT Convention Area,
and is authorized to study species other than tunas and tuna-like
species under Article IV of the ICCAT Convention. The ICCAT plenary
determines the schedule for stock assessments conducted by ICCAT.
While NMFS usually conducts shark stock assessments through the
Southeast Data, Assessment, and Review (SEDAR) process, some pelagic
sharks have been assessed by ICCAT's SCRS and because the United States
is only one of numerous ICCAT Parties that catch silky sharks, it would
be appropriate for
[[Page 60635]]
ICCAT's SCRS to assess the status of the entire Atlantic silky shark
stock so that the assessment can take into account all sources of
mortality. While there have been no formal or peer-reviewed stock
assessments for silky sharks, the SCRS ecological risk assessment is a
valid basis for management decisions in situations where there is no
formal assessment and is appropriate for management action under the
Magnuson-Stevens Act.
Comment 7: This action would result in more regulatory discards,
especially if any southern zones currently closed to pelagic longline
gear are reopened. Silky sharks are found in the southern ranges around
the Gulf Stream and in the Gulf of Mexico.
Response: Please see the response to Comment 3 above. NMFS is not
currently proposing or considering re-opening any southern zones to
pelagic longline gear. While the comment is largely speculative, we
note that any potential, future action to reopen an area or areas
currently closed to HMS-permitted vessels with pelagic longline gear on
board would include an analysis of the impacts of such proposed action
on HMS and other species, including silky sharks, and the public would
have opportunity to comment on any such proposal.
Comment 8: One commenter indicated that adult silky shark fins are
worth approximately $20-25 per pound ex-vessel, substantially higher
than the $11.11 value in the proposed rule analysis. The commenter also
is concerned that the estimate of annual landings is low given the
number of active pelagic longline vessels.
Response: The economic data and landings information used in the
analysis for this action is as reported to NMFS via HMS logbooks during
the 2006 through 2010 period. Reported economic data indicate that
prices were $11.11, not $20-25 as the commenter stated. As landings
information is tallied from HMS logbooks from all active fishing
vessels, the estimate in this rule is the best available information.
Changes From the Proposed Rule
During the preparation of the final rule and in response to public
comments about the scope of the proposed rule, NMFS determined that, to
make the action consistent with the August 29, 2011 action that
implemented similar ICCAT Recommendations regarding certain hammerhead
sharks and oceanic whitetip sharks (76 FR 53652), and to align the rule
with the regulated community's understanding of its application, the
regulatory language associated with this action needed to be revised to
specify that the prohibition on retention also applies to a small
number of vessels (currently five) that are issued both an HMS Charter/
Headboat permit and a commercial shark permit when tuna, swordfish or
billfish are on board the vessel. This measure is necessary to ensure
consistency across implementation of ICCAT recommendations and to
enhance compliance and enforcement. These vessels, however, generally
do not target or land silky sharks when they have tunas or tuna-like
species on board. This modification does not change the environmental
or economic impacts described in the EA/RIR/IRFA prepared for the
proposed action.
Classification
The NMFS Assistant Administrator has determined that this final
rule is consistent with the 2006 Consolidated HMS FMP and its
amendments, other provisions of the Magnuson-Stevens Act, and other
applicable law.
NMFS prepared an environmental assessment for this rule that
analyzes the impact of the action on the environment. In this action,
NMFS prohibits retaining, transshipping, landing, storing, selling, or
purchasing silky sharks in the commercial ICCAT fisheries, primarily
the Atlantic pelagic longline fishery for tuna and tuna-like species. A
copy of the environmental assessment is available from NMFS (see
ADDRESSES).
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
In compliance with section 604 of the Regulatory Flexibility Act
(RFA), a Final Regulatory Flexibility Analysis (FRFA) was prepared for
this rule. 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, and 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.
In compliance with section 604(a)(1) of the RFA, the purpose of
this rulemaking is, consistent with the Consolidated HMS FMP and its
amendments, to implement ICCAT Recommendation 11-08 pursuant to ATCA
and to achieve domestic management objectives under the Magnuson-
Stevens Act. This rulemaking implements the 2011 silky shark
recommendation in the Atlantic HMS fisheries that target tuna and tuna-
like species because NMFS considers these fisheries to be ICCAT
fisheries, which are the fisheries to which the recommendation
specifically applies. The regulatory changes would affect the
commercial ICCAT fisheries, primarily the Atlantic highly migratory
species (HMS) pelagic longline fishery for tuna and tuna-like species
in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico.
This action is necessary to implement ICCAT Recommendation 11-08
pursuant to ATCA. Under ATCA, the Secretary shall promulgate such
regulations as may be necessary and appropriate to carry out ICCAT
recommendations.
Adding prohibitions beyond those called for under Recommendation
11-08 would make this action consistent with the approach NMFS has
taken for oceanic whitetip sharks and scalloped, smooth and great
hammerhead sharks in the commercial pelagic longline fishery for tuna
and tuna-like species. Adding the prohibitions against storing, selling
and purchasing silky sharks under the specified circumstances would, by
making the regulations consistent with those in place for oceanic
whitetip and scalloped, smooth and great hammerhead sharks, make the
regulations easier to remember and thus would help fishermen and
dealers and improve compliance. The additions would enhance enforcement
of the prohibition, particularly where prohibited retention is not
initially detected at sea or during landing. Finally, the extension of
the prohibition against the sale and purchase should help to reduce the
market for silky sharks and encourage compliance with the prohibition
on retention. Therefore, this action is intended to implement
Recommendation 11-08 in a manner that meets our obligations under ICCAT
and ATCA consistent with our management authority for HMS fisheries
under the Magnuson-Stevens Act and the Consolidated HMS FMP.
Section 604(a)(2) of the RFA requires agencies to summarize
significant issues raised by the public in response to the IRFA, the
agency's assessment of such issues, and a statement of any changes made
as a result of the comments.
There were no direct public comments raising significant issues in
response to the IRFA. However, three public comments were received
regarding the potential for increased regulatory discards by
prohibiting the retention of silky sharks in the commercial pelagic
longline fishery.
NMFS calculated that this action would lead to a total estimated
average annual increase in silky shark discards
[[Page 60636]]
of 60 sharks, by converting average annual landings into regulatory
discards. NMFS estimated in the IRFA that vessels that land silky
sharks would incur collective annual economic losses of $3,392 ($1,489
for fins and $1,903 for meat) from having to discard these sharks.
Logbook data indicate that under existing regulations, between 2006 and
2010, 96 percent of silky sharks caught on pelagic longline gear were
discarded. NMFS does not know the rationale behind these discards, but
assumes that vessel operators are choosing to discard these fish either
because of existing retention limits or economic reasons. Participants
using pelagic longline gear typically target tuna and swordfish, which
are both higher valued species than sharks. Due to the high urea
content of sharks, retaining sharks on vessels with limited hold space
may affect product quality of other higher-valued species. Also,
vessels may be limited by current large coastal and pelagic shark
retention limits, depending on what type of commercial shark permit
they hold (directed or incidental), which may also be the cause of
these discards. The rule also affects the small group of vessels issued
both an HMS Charter/Headboat permit and a commercial shark permit. A
very small number of vessels have such a permit combination, however,
and few instances of such tuna and silky shark catch are expected to
arise. Thus, while one or two additional silky sharks might have to be
released in the specified HMS Charter/Headboat and commercial shark
permit combination, inclusion of this permit combination in the ICCAT
fisheries subject to this rulemaking does not change the environmental
or economic impacts described in the EA/RIR/IRFA prepared for the
proposed action.
One commenter questioned the silky shark fin price per pound and
annual estimate of silky shark landings in the analysis for the
proposed rule. See Comment 9 and the corresponding response above and
in Section 12 of the EA/RIR/FRFA.
No changes were made in the rule resulting from public comments in
response to the IRFA.
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 defined a ``small'' fishing
entity as one with average annual receipts of less than $4.0 million; a
small charter/party boat entity is one with average annual receipts of
less than $6.5 million; a small wholesale dealer as one with 100 or
fewer employees; and a small seafood processor as one with 500 or fewer
employees. This action would apply primarily to all participants in the
Atlantic HMS commercial fisheries that have pelagic longline gear
onboard, permitted shark dealers, and a small number of vessels
(currently five) that are issued both an HMS Charter/Headboat permit
and a commercial shark permit, when tuna, swordfish or billfish are on
board the vessel. These vessels and dealers are all considered small
fishing entities under the SBA definition. However, Charter/Headboat
vessels generally do not target or land silky sharks when they have
tunas or tuna-like species on board. As of October 2011, 242 pelagic
longline vessels held an Atlantic Tunas Longline permit, and 117
dealers held an Atlantic shark dealer permit. Including the vessels
issued both HMS Charter/Headboat permits and commercial shark permits
in the prohibition against silky shark retention does not affect this
number because those vessels do not use longline gear.
Under section 604(a)(4) of the RFA, agencies are required to
describe any new reporting, record-keeping and other compliance
requirements. The action does not contain any new collection of
information, reporting, record keeping, or other compliance
requirements.
Under section 604(a)(5) of the RFA, agencies are required to
describe any alternatives to the rule which accomplish the stated
objectives and which minimize any significant economic impacts. These
impacts are discussed below and in Chapters 4 and 6 of the EA/RIR/FRFA.
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4))
lists four general categories of ``significant'' alternatives that
would assist an agency in the development of significant alternatives.
These categories of alternatives are: (1) Establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) clarification,
consolidation, or simplification of compliance and reporting
requirements under the rule for such small entities; (3) use of
performance rather than design standards; and (4) exemptions from
coverage of the rule for small entities.
In order to meet the objectives of this final rule, consistent with
the Magnuson-Stevens Act, NMFS cannot exempt small entities or change
the reporting requirements only for small entities because all the
entities affected are considered small entities. Thus, there are no
alternatives discussed that fall under the first, second, and fourth
categories described above. NMFS does not know of any performance or
design standards that would satisfy the aforementioned objectives of
this rulemaking while, concurrently, complying with the Magnuson-
Stevens Act. Thus, there are no alternatives considered under the third
category. As described below, NMFS analyzed several different
alternatives in this proposed rulemaking and provides rationale for
identifying the preferred alternatives to achieve the desired
objective.
NMFS prepared a FRFA to analyze the impacts on small entities of
the alternatives for implementing the ICCAT Recommendation 11-08 for
all domestic fishing categories that target tuna and tuna-like species.
Specifically, the FRFA assesses the impacts of the various alternatives
on pelagic longline vessels, which are the only vessels that
participate in the Atlantic HMS commercial fishery that target tuna and
tuna-like species, all of which are considered small entities. NMFS
considered and analyzed three alternatives including Alternative 1 (no
action); Alternative 2 (implementing ICCAT Recommendation 11-08 in the
commercial ICCAT fisheries); and Alternative 3 (implementing ICCAT
Recommendation 11-08 and additional prohibitions against storing,
selling, and purchasing of silky sharks in the commercial ICCAT
fisheries).
Under the No Action Alternative, Alternative 1, there would be no
economic impacts to HMS pelagic longline vessels fishing for tuna and
tuna-like species. Under this alternative, commercial pelagic longline
vessels that fish for tuna and tuna-like species that are also
currently authorized to land silky sharks would be able to continue
that practice. Commercial pelagic longline fishermen would continue to
be able to land silky sharks and could potentially earn $485 per vessel
per year. Additionally, each vessel is predicted to earn a total of
$190,986 per year in revenue from swordfish and tuna ($96,525 from
swordfish and $94,461 from tuna). Therefore, revenues from silky shark
sales are minor (<1 percent) compared to each vessel's overall revenue.
Alternative 1 would not implement ICCAT Recommendation 11-08 and,
therefore, is inconsistent with NMFS' obligations to promulgate
regulations, as necessary and appropriate, to implement ICCAT
recommendations. Because of this inconsistency, Alternative 1 is not a
preferred alternative.
Under Alternative 2, pelagic longline vessel operators and owners
could not retain, transship, or land silky sharks, consistent with
ICCAT Recommendation 11-08. Thus, on
[[Page 60637]]
average, each vessel would lose approximately $485 annually in gross
revenues, which is minor (<1 percent) compared to each vessel's overall
revenue from swordfish and tunas ($190,986 total revenues). Alternative
2 is limited in scope to 2011 ICCAT Recommendation 11-08 and
establishes fewer prohibitions than Alternative 3 described below. For
purposes of enforcement, Alternative 2 could be less effective than
Alternative 3. Therefore, Alternative 2 is not a preferred alternative.
Under Alternative 3, pelagic longline vessel owners and operators
could not retain, transship, land, sell, or store silky sharks,
consistent with ICCAT Recommendation 11-08 and other domestic
regulations. This alternative is essentially the same as Alternative 2
but would facilitate domestic compliance and enforcement. Thus, on
average, each vessel would lose approximately $485 annually in gross
revenues, which is minor (<1 percent) compared to each vessel's overall
revenue from swordfish and tunas ($190,986 total revenues). NMFS
prefers Alternative 3, because it would implement ICCAT Recommendation
11-08, would likely have minor ecological benefits, would have minor
socioeconomic impacts on the pelagic longline fishery, and would
facilitate compliance and enforcement. Additionally, Alternative 3
would be unlikely to change fishing practices or effort.
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. Copies of the
compliance guide are available from NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: September 27, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the Functions and
Duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For reasons set out in the preamble, 50 CFR part 635 is amended as
follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
1. The authority citation for part 635 continues to read as follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
2. In Sec. 635.21, paragraph (c)(1)(ii) is revised to read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) * * *
(1) * * *
(ii) Has pelagic longline gear on board, persons aboard that vessel
may not possess, retain, transship, land, sell, or store silky sharks,
oceanic whitetip sharks, or scalloped, smooth, or great hammerhead
sharks.
* * * * *
0
3. In Sec. 635.24, paragraph (a)(9) is revised to read as follows:
Sec. 635.24 Commercial retention limits for sharks and swordfish.
* * * * *
(a) * * *
(9) Notwithstanding other provisions in this subsection,
possession, retention, transshipment, landing, sale, or storage of
silky sharks, oceanic whitetip sharks, and scalloped, smooth, and great
hammerhead sharks is prohibited on 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.
* * * * *
0
4. In Sec. 635.31, paragraph (c)(6) is revised to read as follows:
Sec. 635.31 Restrictions on sale and purchase.
* * * * *
(c) * * *
(6) A dealer issued a permit under this part may not purchase silky
sharks, oceanic whitetip sharks, or scalloped, smooth, or great
hammerhead sharks from an owner or operator of a fishing vessel with
pelagic longline gear on board. A dealer issued a permit under this
part may not purchase silky sharks, oceanic whitetip sharks or
scalloped, smooth, or great hammerhead sharks from the owner of a
fishing vessel 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.
* * * * *
0
5. In Sec. 635.71, paragraph (d)(19) is revised to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(d) * * *
(19) Retain, possess, transship, land, store, sell or purchase
silky sharks, oceanic whitetip sharks, or scalloped, smooth, or great
hammerhead sharks as specified in Sec. 635.21(c)(1)(ii), Sec.
635.22(a)(2), Sec. 635.24, and Sec. 635.31(c)(6).
* * * * *
[FR Doc. 2012-24429 Filed 10-3-12; 8:45 am]
BILLING CODE 3510-22-P