[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Rules and Regulations]
[Pages 57803-57806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20157]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 160328287-6745-02]
RIN 0648-BF94
Atlantic Highly Migratory Species (HMS); Porbeagle Shark
Management Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements the International Commission for
the Conservation of Atlantic Tunas (ICCAT) Recommendation 15-06
regarding porbeagle sharks (Lamna nasus) caught in association with
ICCAT fisheries. Recommendation 15-06 requires, among other things,
fishing vessels to promptly release unharmed, to the extent
practicable, porbeagle sharks caught in association with ICCAT
fisheries when brought alive alongside for taking on board the vessel.
This action affects fishermen fishing in the commercial highly
migratory species (HMS) pelagic longline fishery and the HMS
recreational fisheries for tunas, swordfish, and billfish in the
Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico. This
action implements an ICCAT recommendation, consistent with the Atlantic
Tunas Convention Act (ATCA), and will further domestic management
objectives under the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act).
DATES: Effective on September 23, 2016.
FOR FURTHER INFORMATION CONTACT: Larry Redd, Carrie Soltanoff, or Karyl
Brewster-Geisz by phone at 301-427-8503.
SUPPLEMENTARY INFORMATION:
Background
Atlantic HMS are managed under the 2006 Consolidated HMS Fishery
Management Plan (FMP). Implementing regulations at 50 CFR part 635 are
issued under the authority of the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq., and
Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 927 et seq. ATCA
requires the Secretary of Commerce (Secretary) to promulgate
regulations as may be necessary and appropriate to implement ICCAT
recommendations.
At its 24th Annual Meeting in 2015, ICCAT adopted Recommendation
15-06 on ``Porbeagle [Sharks] Caught in Association with ICCAT
Fisheries.'' Recommendation 15-06 requires, among other things, fishing
vessels ``. . . to promptly release unharmed, to the extent
practicable, porbeagle sharks caught in association with ICCAT
fisheries when brought alive alongside for taking on board the
vessel.'' Recommendation 15-06 notes that, according to the ICCAT
Standing Committee for Research and Statistics (SCRS), biomass of
northwest Atlantic and northeast Atlantic porbeagle sharks is depleted
to well below the biomass at maximum sustainable yield, but recent
fishing mortality is below the fishing mortality at maximum sustainable
yield (i.e., the stocks are overfished but overfishing is not
occurring). Recommendation 15-06 further notes that the 2008 and 2012
Ecological Risk Assessments concluded that the porbeagle shark was
among the most vulnerable of shark species, which, even at low fishing
mortality levels, makes it more susceptible to overfishing. Thus,
Recommendation 15-06 was adopted by ICCAT to reduce fishing mortality
of porbeagle sharks caught in association with ICCAT fisheries in order
to reduce porbeagle shark fishing even further, and thus assist in
rebuilding stocks which are currently overfished. On June 15, 2016 (81
FR 39017), NMFS published a proposed rule to consider changes to the
regulations at 50 CFR part 635 consistent with Recommendation 15-06.
The proposed rule contains details that are not repeated here. The
comment period on the proposed rule ended on July 15, 2016.
Domestically, porbeagle sharks are managed pursuant to a rebuilding
plan established in Amendment 2 to the 2006 Consolidated HMS FMP (73 FR
35788, June 24, 2008 as corrected at 73 FR 40658, July 15, 2008). Under
current regulations, commercial and
[[Page 57804]]
recreational HMS fishermen that operate in ICCAT fisheries are
authorized to retain any porbeagle shark, regardless of whether the
shark is dead or alive at haulback. In this final rule, NMFS requires,
to the extent practicable, all live porbeagle sharks to be released by
commercial and recreational HMS fishermen operating in ICCAT fisheries,
as determined by the permits they hold or, in the case of recreational
fisheries, whether they have also retained tuna-like species on a given
trip.
Response to Comments
During the proposed rule stage, NMFS received 28 written comments.
The comments received on the proposed rule during the public comment
period can be found at http://www.regulations.gov/ by searching for
NOAA-NMFS-2016-0066. A summary of the relevant comments on the proposed
rule are shown below with NMFS' response.
Comment 1: NMFS received comments both in support of, and opposed
to, implementing the ICCAT recommendation. Commenters who supported
this action stated that the proposed rule was necessary to be
consistent with the recommendation adopted by ICCAT. Commenters
opposing the proposed rule stated that the porbeagle population in
waters off the northeast United States was abundant.
Response: NMFS agrees that this action is consistent with the ICCAT
recommendation. Regarding the status of porbeagle sharks, as described
in the proposed rule, according to the most recent stock assessment in
2009, which was a joint stock assessment between ICCAT and the
International Council for the Exploration of the Sea (ICES), the
Northwest Atlantic porbeagle shark stock is depleted well below the
biomass at maximum sustainable yield, and recent fishing mortality is
below the fishing mortality at maximum sustainable yield. Based on
these results, porbeagle sharks are considered to be overfished with no
overfishing occurring both domestically and internationally. As cited
in Recommendation 15-06, porbeagle sharks are among the most vulnerable
shark species, which means that even at low fishing mortality levels,
the species is more susceptible to overfishing than other less
vulnerable shark species. ICCAT has provisionally scheduled the next
porbeagle shark stock assessment for 2019. More information regarding
the 2009 stock assessment can be found at http://www.iccat.int/Documents/SCRS/DetRep/DET-POR.pdf.
Comment 2: Some commenters noted the need for complete prohibition
of porbeagle sharks caught in association with non-ICCAT fisheries
given the overfished status of the stock.
Response: This comment is outside the scope of this rulemaking
because the purpose of this rulemaking only pertains to implementing
ICCAT Recommendation 15-06, consistent with ATCA. ICCAT Recommendation
15-06 pertains to the live release of porbeagle sharks caught in
association with ICCAT fisheries and does not address possession of the
species in non-ICCAT fisheries. Domestically, porbeagle sharks are
managed pursuant to a rebuilding plan established in 2008 in Amendment
2 to the 2006 Consolidated HMS FMP, consistent with the requirements of
the Magnuson-Stevens Act.
Comment 3: NMFS received comments stating that NMFS should issue
its 12-month finding regarding listing porbeagle sharks under the
Endangered Species Act (ESA).
Response: This comment is outside the scope of this rulemaking
because the purpose of this rulemaking is to implement ICCAT
Recommendation 15-06. The 12-month finding regarding listing porbeagle
sharks under the ESA very recently published on August 1, 2016 (81 FR
50463). Any further information regarding the 12-month finding and any
subsequent related agency action can be found at
www.federalregister.gov/.
Comment 4: NMFS received a comment stating that current low
interactions between recreational fishermen and porbeagle sharks, in
combination with high release rates of the species, does not warrant
additional regulations for the recreational fishery.
Response: Under the authority of ATCA and the Magnuson-Stevens Act,
NMFS is obligated to promulgate such regulations as may be necessary
and appropriate to carry out ICCAT recommendations. Additionally, as
stated above, porbeagle sharks are overfished without overfishing
occurring. ICCAT Recommendation 15-06 was designed in part to aid in
rebuilding this vulnerable shark species. NMFS acknowledges that
recreational fishermen interact with few porbeagle sharks and that most
fishermen who catch porbeagle sharks release the majority of those
sharks alive. Furthermore, the measures in this rulemaking only apply
to recreational fishermen that catch porbeagle sharks while also
retaining swordfish, billfish, or tuna. This rulemaking does not apply
to recreational fishermen that catch porbeagle sharks and do not retain
swordfish, billfish, or tuna. As such, this regulation, which requires
the live release of porbeagle sharks caught in association with ICCAT
fisheries, should have few overall impacts on the recreational fishery.
Comment 5: NMFS received public comments regarding handling and
release practices of porbeagle sharks. The commenters highlighted that
the proposed changes could result in anglers switching to fishing
practices that would ensure porbeagle sharks are dead at haulback in
order to allow for retention of any porbeagle shark caught. Other
commenters were concerned that the data indicating high release rates
of porbeagle sharks in commercial and recreational fisheries were
inaccurate because the data were self-reported and did not consider
post-release mortality rates of porbeagle sharks.
Response: As described in the proposed rule, HMS logbook and
pelagic observer program data indicate that approximately 97 percent of
porbeagle sharks were released (alive and dead) from 2010-2015.
Additionally, recreational data indicate approximately 90 percent of
porbeagle sharks were released from 2010-2015. These data, which are a
mix of self-reported and observer data are the best scientific data
available and indicate that most porbeagle sharks have not been
retained. While the data do not indicate how many sharks released alive
would subsequently die as a result of being caught, the ICCAT
Recommendation will increase the numbers of porbeagle sharks released
alive and thereby likely increase the survival of those sharks and aid
in rebuilding.
Regarding handling and release practices, U.S. fishermen who
interact with porbeagle sharks have historically followed safe handling
and release practices. This regulation requires U.S. fishermen to
release live porbeagle sharks in a manner that is largely consistent
with the safe handling and release practices that most fishermen
employ. NMFS believes and expects that fishermen will continue to
follow these safe handling and release practices after implementation
of the ICCAT Recommendation 15-06. NMFS will continue to monitor
potential violations of Atlantic HMS regulations to ensure that both
commercial and recreational fishermen maintain proper catch and release
practices.
Comment 6: Several commenters expressed concern that implementing
ICCAT Recommendation 15-06 would result in a complete closure of the
recreational porbeagle shark fishery.
[[Page 57805]]
Response: This final rule will not result in the closure of the
recreational porbeagle shark fishery. As described in the proposed
rule, implementation of ICCAT Recommendation 15-06 would impact HMS
recreational fishermen who retain porbeagle sharks while also retaining
swordfish, billfish, or tuna. Under these circumstances, recreational
fishermen would have to either discard live porbeagle sharks or the
swordfish, billfish, or tuna. If a porbeagle shark were caught that was
dead at the time of haulback, a recreational HMS fisherman with
swordfish, billfish, or tuna onboard could retain the porbeagle,
consistent with all other regulations such as the retention and size
limits. Similarly, if a recreational HMS fisherman did not have
swordfish, billfish, or tuna onboard, and was not intending to retain
any swordfish, billfish, or tunas, that fisherman could retain any
porbeagle shark that met the retention and size limits, regardless of
the disposition of the shark.
Changes From the Proposed Rule
NMFS made one change to the proposed regulations. At Sec. 635.22
(a)(3), NMFS has added text specifying that the permit holders subject
to the applicable requirements of this rulemaking include fishermen who
hold a Swordfish General Commercial permit when they are participating
in an HMS registered tournament. The proposed rule clearly stated that
recreational fishing for porbeagle sharks would be affected when
swordfish, tuna, or billfish are retained or possessed on board, or
offloaded from, the vessel on a trip. We inadvertently did not list the
Swordfish General Commercial permit, even though participation in an
HMS registered recreational tournament with such a permit is clearly
recreational fishing, and such permit holders had notice of the
proposed rule's effect on recreational fishing both through the Federal
Register Notice and through NMFS outreach, including NMFS' HMS-specific
email listserv and NMFS' general email listserv.
It is generally understood that the Swordfish General Commercial
permit is similar to the HMS General Category commercial permit in that
the permit is considered recreational when the vessel owner or operator
is using that vessel in an HMS registered tournament and landings of
HMS are allowed, consistent with the regulations. While the regulatory
language in the proposed rule did not specifically include this
category of permit when listing the permit titles, the rule did
repeatedly refer to recreational fisheries, and permit holders could
reasonably have anticipated that the prohibition would apply to them
given the rule's overall context and content and thus had sufficient
notice. The underlying NEPA analysis associated with this rulemaking is
not affected by this correction. These fishermen are considered
recreational when fishing during a registered HMS tournament, and all
such fishing in tournaments was within the scope of what was analyzed;
any harvest of porbeagle sharks by these fishermen was analyzed at the
proposed rule stage as recreational data. The Regulatory Flexibility
Act (RFA) certification is similarly unaffected by this correction. It
was based on the recreational information about porbeagle sharks
received through the Large Pelagics Survey, which does not distinguish
among permit types. Therefore, any recreational harvest of porbeagle
sharks by Swordfish General Category permit holders was considered at
the proposed rule stage. Furthermore, recreationally-caught porbeagle
sharks cannot be sold, limiting the effects analyzed under the RFA.
Classification
The NMFS Assistant Administrator has determined that the final rule
is consistent with the 2006 Consolidated HMS FMP and its amendments,
the Magnuson-Stevens Act, ATCA, and other applicable law.
This final action has been determined to be not significant for the
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
On December 29, 2015, NMFS issued a final rule establishing a small
business size standard of $11 million in annual gross receipts for all
businesses primarily engaged in the commercial fishing industry (NAICS
11411) for Regulatory Flexibility Act (RFA) compliance purposes only
(80 FR 81194, December 29, 2015). The $11 million standard became
effective on July 1, 2016, and is to be used in place of the U.S. Small
Business Administration's (SBA) current standards of $20.5 million,
$5.5 million, and $7.5 million for the finfish (NAICS 114111),
shellfish (NAICS 114112), and other marine fishing (NAICS 114119)
sectors of the U.S. commercial fishing industry in all NMFS rules
subject to the RFA after July 1, 2016. Id. at 81194.
Pursuant to the Regulatory Flexibility Act, and prior to July 1,
2016, a certification was developed for this regulatory action using
SBA's former size standards. NMFS has reviewed the analyses prepared
for this regulatory action in light of the new size standard. All of
the entities directly regulated by this regulatory action are
commercial finfish fishing businesses. The new standard could result in
fewer commercial finfish businesses being considered small. However,
NMFS has determined that the new size standard does not affect its
decision to certify this regulatory action. NMFS considers all HMS
longline permit holders to be small entities because these vessels have
reported annual gross receipts of less than $11 million for commercial
fishing. The average annual gross revenue per active pelagic longline
vessel was estimated to be $187,000 based on the 170 active vessels
between 2006 and 2012 that produced an estimated $31.8 million in
revenue annually. The maximum annual revenue for any pelagic longline
vessel between 2006 and 2015 was $1.9 million, well below the NMFS
small business size threshold of $11 million in gross receipts for
commercial fishing. Therefore, NMFS considers all Atlantic Tunas
Longline category permit holders to be small entities. Since the annual
revenue for Atlantic Tunas Longline category permit holders is well
below both the former and new SBA size standard, there continues to be
no significant economic impact on a substantial number of small
entities.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: August 18, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 635 is amended
as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
1. The authority citation for part 635 continues to read as follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
[[Page 57806]]
0
2. In Sec. 635.21, add paragraph (c)(1)(iii) to read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) * * *
(1) * * *
(iii) Has pelagic longline gear on board, persons aboard that
vessel are required to release unharmed, to the extent practicable,
porbeagle sharks that are alive at the time of haulback.
* * * * *
0
3. In Sec. 635.22, add paragraph (a)(3) to read as follows:
Sec. 635.22 Recreational retention limits.
(a) * * *
(3) Vessels issued an HMS General Category permit under Sec.
635.4(d) that are participating in an HMS registered tournament,
vessels issued a Swordfish General commercial permit under Sec.
635.4(f) that are participating in an HMS registered tournament,
vessels issued a HMS Angling category permit under Sec. 635.4(c), or
vessels issued a HMS Charter/Headboat permit under Sec. 635.4(b) are
required to release unharmed, to the extent practicable, porbeagle
sharks that are alive at the time of haulback if swordfish, tuna, or
billfish are retained or possessed on board, or offloaded from, the
vessel during that trip.
* * * * *
0
4. In Sec. 635.24, add paragraph (a)(10) to read as follows:
Sec. 635.24 Commercial retention limits for sharks, swordfish, and
BAYS tunas.
* * * * *
(a) * * *
(10) Notwithstanding other provisions in this paragraph (a),
vessels issued a permit under this part that have pelagic longline gear
on board or on vessels issued both an HMS Charter/Headboat permit and a
commercial shark permit when tuna, swordfish, or billfish are on board
the vessel, offloaded from the vessel, or being offloaded from the
vessel, are required to release unharmed, to the extent practicable,
porbeagle sharks that are alive at the time of haulback.
* * * * *
0
5. In Sec. 635.71, add paragraph (d)(20) to read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(d) * * *
(20) Retain, possess, or land porbeagle sharks that were alive at
the time of haulback as specified in Sec. Sec. 635.21(c)(1)(iii),
635.22(a)(3), and 635.24 (a)(10).
* * * * *
[FR Doc. 2016-20157 Filed 8-23-16; 8:45 am]
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