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									45196                  Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

substantial number of small entities        of each year, two completed copies of        DATES: Comments must be received no
because the revision clarifies program      the appropriate Annual Certification         later than 5 p.m. on September 30, 2003.
policies and does not essentially change    (Committee Form 403 or 404) covering            Section 635.69 is currently stayed.
the impact of the regulations on small      the fiscal year ending the preceding         However, NMFS intends to lift the stay
entities.                                   September 30.                                and reinstate § 635.69 before the final
                                            *     *     *     *    *                     rule is published.
Paperwork Reduction Act                                                                     Public hearings on this proposed rule
   The Paperwork Reduction Act does           Dated: July 28, 2003.                      will be held in August and September
not apply to this proposed rule because     Louis R. Bartalot,                           2003. Specific dates and times for the
it contains no new information              Director, Program Analysis and Evaluation.   public hearings will be announced in a
collection or recordkeeping                 [FR Doc. 03–19630 Filed 7–31–03; 8:45 am]    separate document published in the
requirements as defined in that Act and     BILLING CODE 6353–01–P                       Federal Register.
its regulations.                                                                         ADDRESSES: Written comments on the
Executive Order No. 12866                                                                proposed rule should be submitted to
                                            DEPARTMENT OF COMMERCE                       Christopher Rogers, Chief, Highly
   The Committee has been exempted                                                       Migratory Species (HMS) Management
from the regulatory review requirements     National Oceanic and Atmospheric             Division (SF/1), National Marine
of the Executive Order by the Office of     Administration                               Fisheries Service, 1315 East-West
Information and Regulatory Affairs.                                                      Highway, Silver Spring, MD 20910.
Additionally, the proposed rule is not a    50 CFR Parts 600 and 635                     Comments also may be sent via
significant regulatory action as defined                                                 facsimile (fax) to 301–713–1917.
in the Executive Order.                     [Docket No. 030721180–3180–01; I.D.
                                            010903D]                                     Comments will not be accepted if
List of Subjects                                                                         submitted via e-mail or Internet.
                                            RIN 0648–AQ95                                Comments regarding the collection-of-
41 CFR Part 51–3                                                                         information requirements contained in
  Government procurement,                   Atlantic Highly Migratory Species;           this proposed rule should be sent to the
Handicapped.                                Atlantic Shark Management Measures           HMS Management Division, 1315 East-
41 CFR Part 51–4                            AGENCY: National Marine Fisheries            West Highway, Silver Spring, MD
                                            Service (NMFS), National Oceanic and         20910, and to the Office of Information
  Reporting and recordkeeping                                                            and Regulatory Affairs, Office of
                                            Atmospheric Administration (NOAA),
requirements.                                                                            Management and Budget (OMB),
                                            Commerce.
  For the reasons set out in the                                                         Washington, DC 20503 (Attention:
                                            ACTION: Proposed rule; notice of
preamble, parts 51–3 and 51–4 of title                                                   NOAA Desk Officer). For copies of the
41, chapter 51 of the Code of Federal       availability of draft Amendment 1 to the
                                            Fishery Management Plan for Atlantic         Draft Environmental Impact Statement/
Regulations are proposed to be amended                                                   Regulatory Impact Review/Initial
as follows:                                 Tunas, Swordfish, and Sharks
                                            (Amendment 1); request for comments.         Regulatory Flexibility Analysis (DEIS/
  1. The authority citation for parts 51–                                                RIR/IRFA), contact Karyl Brewster-Geisz
3 and 51–4 continues to read as follows:    SUMMARY: This proposed rule and              at 301–713–2347.
    Authority: 41 U.S.C. 46–48c.            Amendment 1 are necessary to ensure          FOR FURTHER INFORMATION CONTACT:
                                            that shark regulations are based on the      Karyl Brewster-Geisz, Heather Stirratt,
PART 51–3—CENTRAL NONPROFIT                 results of the 2002 stock assessments for    or Chris Rilling at 301–713–2347 or fax
AGENCIES                                    large coastal sharks (LCS) and small         301–713–1917 or Greg Fairclough at
  2. Section 51–3.2 is amended by           coastal sharks (SCS). The results of         727–570–5741 or fax 727–570–5656.
revising paragraph (m) to read as           these stock assessments indicate that the    SUPPLEMENTARY INFORMATION: The
follows:                                    LCS complex continues to be                  Atlantic shark fisheries are managed
                                            overfished, and overfishing is occurring;    under the authority of the Magnuson-
§ 51–3.2 Responsibilities under the JWOD    that sandbar sharks are not overfished,      Stevens Fishery Conservation and
Program.                                    but overfishing is occurring; that           Management Act (Magnuson-Stevens
*      *     *    *    *                    blacktip sharks are rebuilt and healthy;     Act). The Fishery Management Plan for
  (m) Review and forward to the             that the SCS complex is healthy; and         Atlantic Tunas, Swordfish, and Sharks
Committee by December 1 of each year        that finetooth sharks are not overfished,    (HMS FMP), finalized in 1999, is
a completed original copy of the            but overfishing is occurring. Based on       implemented by regulations at 50 CFR
appropriate Annual Certification            these results, NMFS proposes to revise       part 635.
(Committee Form 403 or 404) for each        the rebuilding timeframe for LCS to 27
of its participating nonprofit agencies     years from 2004, to change the               Management History
covering the fiscal year ending the         commercial regulations, to change the          NMFS has managed shark fisheries in
preceding September 30.                     recreational regulations, to remove the      the Atlantic Ocean, the Gulf of Mexico,
*      *     *    *    *                    deepwater/other sharks from the              and the Caribbean Sea under an FMP
                                            management unit, to establish criteria       since 1993. Since 1997, management
PART 51–4—NONPROFIT AGENCIES                regarding adding or removing sharks          actions have been challenged in several
  3. Section 51–4.3 is amended by           from the prohibited species group, and       lawsuits from commercial, recreational,
revising the second sentence of             to establish a display permit for            and environmental interest groups. In
paragraph (a) to read as follows:           fishermen who wish to harvest sharks         December 2000, the court approved a
                                            only for public display. In Amendment        settlement agreement regarding two
§ 51–4.3    Maintaining qualification.      1, NMFS also proposes updates to             lawsuits with the commercial industry.
  (a) * * * In addition, each such          essential fish habitat (EFH)                 Consistent with the court-approved
nonprofit agency must submit to its         identifications for sandbar, blacktip,       settlement agreement, among other
central nonprofit agency by November 1      finetooth, dusky, and nurse sharks.          things, NMFS conducted a non-NMFS
                    Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                          45197

peer review of the 1998 LCS stock           (Fishery Management Councils, the            alternative, described below, to
assessment, conducted a new LCS stock       commissioners and advisory groups of         aggregate the ridgeback and non­
assessment after considering the results    the International Commission for the         ridgeback LCS species groups, or takes
of the peer review, and conducted a         Conservation of Atlantic Tunas (ICCAT),      no action and maintains the ridgeback/
non-NMFS peer review of the new LCS         and the HMS and Billfish Advisory            non-ridgeback split.
stock assessment.                           Panels established under the Magnuson-          The 2002 LCS stock assessment found
   The peer review of the 1998 LCS stock    Stevens Act) and subsequently received       that the LCS complex is overfished and
assessment found that the scientific        and considered comments in developing        experiencing overfishing. The stock
conclusions and scientific management       draft amendment 1 and the proposed           assessment indicated that a zero
recommendations contained in the 1998       rule.                                        landings policy would have, on average,
LCS stock assessment were based                At this time, NMFS is not proposing       a 68–percent chance of rebuilding the
neither on scientifically reasonable uses   any specific management measures for         LCS complex to maximum sustainable
of the appropriate fisheries stock          pelagic sharks. The International            yield (MSY) within 10 years. Thus, even
assessment techniques nor on the best       Commission for the Conservation of           prohibiting fishing for 10 years does not
available (at the time of the 1998 LCS      Atlantic Tunas (ICCAT) is planning to        quite give a 70–percent chance of
stock assessment) biological and fishery    conduct a pelagic shark stock                rebuilding the complex to MSY (this is
information relating to LCS. Because of     assessment for several pelagic sharks in     the level of confidence identified in the
this conclusion, NMFS determined that       2004, and NMFS will likely consider          HMS FMP associated for shark
the 1998 LCS stock assessment was not       specific pelagic sharks measures             management). Assuming a linear
an appropriate basis for any prior or       thereafter. However, to the extent that      relationship between the results at 10
subsequent rulemaking and that a new        all shark management is interrelated, it     and 20 years, it appears that the LCS
stock assessment was needed in order to     is possible that the management              complex has approximately a 70–
revise the regulations that were based      measures proposed here would affect          percent chance of rebuilding to MSY
on the 1998 LCS stock assessment and        pelagic sharks. For instance, while          under a zero fishing policy in
implemented in the 1999 HMS FMP.            NMFS is not proposing to change the          approximately 11 years. Given the
   In 2002, NMFS conducted both an          pelagic shark quota at this time,            results of the 2002 LCS stock assessment
SCS stock assessment (67 FR 30879,          depending on the results of the 2004         and the requirements of the Magnuson-
May 8, 2002) and an LCS stock               pelagic shark assessment, NMFS may           Stevens Act, NMFS believes that the
assessment (67 FR 69180, October 17,        use the same quota basis for setting the     rebuilding timeframe for the LCS
2002). The SCS stock assessment was         pelagic shark quota in the future.           complex should be the amount of time
the first SCS stock assessment since           NMFS is also proposing to remove          it would take to rebuild under a zero
1992. It found that the SCS complex was     and reserve § 635.16. This section of the    fishing policy plus one mean generation
not overfished and that overfishing was     regulations pertain only to the issuance     time.
not occurring. Additionally, it found       of initial limited access permits (ILAPs).      Using the average of the several LCS
that Atlantic sharpnose, bonnethead,        At this time, all appeals and lawsuits       species, the mean generation time for
and blacknose sharks were not               regarding ILAPs are complete, and the        the LCS complex is approximately 16
overfished and that overfishing was not     regulations are no longer relevant.          years. NMFS used the average
occurring. It also found that finetooth        The following is a summary of the         generation time of several species
sharks, while not overfished, are           preferred alternatives analyzed in the       instead of picking one species because
experiencing overfishing.                   DEIS for Amendment 1 and the revised         of the wide biological diversity of sharks
   The 2002 LCS stock assessment found      rebuilding timeframe for LCS. These          and because the stock assessment did
that the LCS complex is still overfished    elements are arranged in the following       not state that there was any one species
and that overfishing is still occurring.    sections: LCS rebuilding timeframe,          that was of particular concern.
Additionally, it found that sandbar         commercial management measures,                 Thus, the rebuilding timeframe for the
sharks are rebuilt but are still            recreational management measures,            LCS complex is as follows: 11 years
experiencing overfishing and that           bycatch reduction measures, and other        (time to reach MSY under a zero fishing
blacktip sharks are rebuilt and are not     proposed management measures.                policy) + 16 years (mean generation
experiencing overfishing. The peer                                                       time of LCS species) = 27 years. The
reviews of the 2002 LCS stock               1. LCS Rebuilding Timeframe
                                                                                         projections in the 2002 LCS stock
assessment supported the assessment            In the 1999 HMS FMP, NMFS                 assessment indicate that the stock could
and concluded that the models and           established separate rebuilding              be rebuilt 27 years from 2002, which is
methodology used were appropriate.          timeframes for ridgeback and non­            within the same time period projected
   On November 15, 2002 (67 FR 69180),      ridgeback LCS. These rebuilding              under the 1999 HMS FMP. If the
NMFS announced its intent to prepare        timeframes, using sandbar and blacktip       measures proposed in this action are
an environmental impact statement and       sharks as proxies for ridgeback and non­     implemented in 2004, the LCS complex
amend the HMS FMP as a result of these      ridgeback LCS, respectively, were based      would still have approximately a 70–
two stock assessments. In February and      on the projections from the 1998 LCS         percent chance of rebuilding within 27
March 2003, NMFS held seven scoping         stock assessment. As a result of the peer    years based on the stock assessment
meetings, including one at the Highly       review of the 1998 LCS stock                 projections.
Migratory Species (HMS) Advisory            assessment and the change of status in
Panel meeting, to discuss and collect       sandbar and blacktip sharks, NMFS is         2. Proposed Commercial Management
comments on an Issues and Options           proposing to revise the timeframe to         Measures
Paper (68 FR 31987, January 27, 2003).      rebuild LCS. Because the proposed               The measures analyzed in this
NMFS received many comments, which          timeframe is based on the results of the     category include the following issues:
were considered to develop the              2002 stock assessment regarding the          LCS classification, shark quota
alternatives considered in the pre-DEIS     LCS complex, the proposed timeframe          administration, shark quota basis, and
for draft Amendment 1. On April 21,         would be appropriate for overfished          minimum size restrictions. The
2003, NMFS released a pre-draft             LCS regardless of whether NMFS               alternatives for these issues are
document to the consulting parties          finalizes the preferred LCS classification   described below.
45198               Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

A. LCS Classification                        LCS complex and close the fishery           be split across two different fishing
   In the 1999 HMS FMP, NMFS                 based on the landings of the most           seasons. Thus, under the preferred
finalized measures that split the LCS        vulnerable species; and establish more      trimester alternative, NMFS could, if
complex into two species groups:             species-specific quota levels. NMFS did     needed, close one trimester and stop
ridgeback and non-ridgeback LCS.             not prefer the first two alternatives       fishing during the majority of the
These groups used sandbar and blacktip       because while they could rebuild the        pupping seasons. However, under a
sharks as proxies for the ridgeback and      fishery, they could also lead to a          quarterly season, NMFS would need to
non-ridgeback species, respectively,         situation where one group’s or one          close two quarterly seasons to stop
and, due to the presence of a ridge on       species’ quota was continually not being    fishing during the majority of pupping
the back of the shark, these groups          landed. The species-specific alternative    seasons.
                                             was not preferred because, while the
could be easily distinguished from one                                                   C. Shark Quota Basis
                                             resulting quotas could be higher thus
another. Because of this split, NMFS                                                        As described in the 1993 Shark FMP,
                                             mitigating economic and social impacts,
was able to set different quota levels                                                   the 1993 LCS shark quota was
                                             due to the mixed nature of the fishery
based on the results of the stock                                                        established based on an estimate of
                                             and problems regarding identification of
assessment and close the fisheries for                                                   MSY. The pelagic shark quota was
                                             sharks, this alternative would likely
these groups at different times. Due to                                                  based on average landing estimates
                                             lead to increased discard and bycatch
delays caused by litigation, this measure                                                because an estimate of MSY was not
                                             levels.
was implemented for the first time in                                                    available. In 1997, based on a 1996 LCS
2003 (67 FR 78990, December 27, 2002).       B. Shark Quota Administration               stock assessment, NMFS, assuming that
   Since implementation, environmental          Since 1993, Atlantic shark fisheries     a 50–percent reduction in fishing
groups and commercial fishermen              have been managed via two semi-annual       mortality was approximately a 50–
raised multiple concerns regarding           fishing seasons: January through June       percent reduction in catch, reduced the
closing these groups at different times      and July through December. Under this       quota accordingly. Also in 1997, NMFS
and the potential for increased bycatch      management measure, the Atlantic            established a SCS quota level based on
due to the mixed nature of the fishery.      Ocean, Gulf of Mexico, and Caribbean        estimates of MSY from the 1992 stock
Additionally, NMFS heard that, because       Sea close to shark fishing once the quota   assessment. As described in the HMS
sandbar and blacktip sharks had similar      is reached. While this management           FMP, NMFS established the 1999 LCS
status designations as the complex in        measure provides a straightforward          quotas, in part, by reducing the 1997
1998 (i.e., overfished and overfishing       administration of the fishing seasons, it   quotas levels by fishing mortality
occurring), using them as proxies for        does not give NMFS the flexibility to       reductions recommended by the LCS
other species was acceptable in 1998;        manage the fisheries based on               stock assessment. Thus, in recent years,
however, given their current status          differences between regions or based on     except for 2003, the commercial quotas
compared with the status of the LCS          different pupping seasons for different     for LCS and SCS have been based on
complex, NMFS should no longer use           species. In order to give NMFS that         older estimates of MSY as reduced
those species as proxies because it could    flexibility, NMFS proposes changing the     several times by different recommended
lead to further overfishing on the LCS       semi-annual seasons to trimester            levels of fishing mortality reductions.
species that have not yet recovered          seasons and establishing regional           This recent practice of setting quotas
under the management program.                quotas.                                     has led to confusion over where and
   After considering these comments, the        The quota would be split equally         when in the process discards and state
LCS stock assessment, the peer reviews,      between trimesters, and regional quotas     landings after federal closures should be
and potential ecological, social, and        would be based on historical fishing        accounted.
economic impacts, NMFS is proposing          effort for each species group. However,        To alleviate this confusion, NMFS is
to re-aggregate the LCS complex and          in the future, NMFS could change the        proposing a process that bases the
establish one closure date. While re-        trimester and regional quotas in order to   starting level on the MSY level
aggregating the LCS complex could            ensure that the fishery has the             estimated in the stock assessment. That
result in a lower quota level and,           opportunity to harvest the annual quota     level is then reduced, as appropriate, to
therefore, have additional economic          and/or to protect pupping seasons, as       ensure that optimum yield (OY) can be
impacts compared with some of the            necessary. Thus, in the future, if one      harvested from the fishery. For stocks
other alternatives considered, the           region usually reaches or exceeds the       that are not overfished (e.g., SCS
preferred alternative reduces the burden     quota from one trimester and rarely         complex), OY is MSY reduced by 25
of fishermen regarding sorting;              reaches the quota for another trimester,    percent. For stocks that are overfished
maintains historical fishing practices       NMFS could adjust the quotas for each       (e.g., LCS complex), MSY is reduced by
and, therefore, reduces the chance of        trimester so both quotas are reached.       the amount recommended in the stock
confusion over when the seasons are          Additionally, if one region often           assessment, tempered by other
open or closed; and does not result in       exceeds its annual quota while another      management measures that could
additional regulatory discards. Over         region does not, NMFS could decide to       decrease shark mortality. The
time, as the LCS complex rebuilds, it is     adjust the regional quotas to facilitate    commercial quota is the proportion of
likely that quota levels based on the        the harvest of the entire annual quota.     OY that is equal to the proportion of
aggregate could be increased.                   Similarly, if a particular species of    commercial landings in recent years by
Additionally, unlike some of the other       shark needs additional protection           federal and state fishermen. The
classification methods, the aggregate        during its pupping season and/or for its    proportion of recreational landings and
classification fully considers the ability   pupping grounds, NMFS could adjust          dead discards from OY is not included
of all species, including the secondary      trimester and regional quotas, as           in the commercial quota. Thus, under
species, to rebuild.                         appropriate.                                this procedure, MSY, adjusted to ensure
   NMFS also considered alternatives            NMFS also considered quarterly           OY, is similar to a total allowable catch
that would keep the ridgeback/non­           seasons but did not prefer that             level and dead discards are accounted
ridgeback LCS split and close the            alternative because under this              for before the commercial quota is
fishery at the same time; aggregate the      alternative most pupping seasons would      established. Landings by state fishermen
                    Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                           45199

after a Federal closure would be             this time, a minimum size would not          enforcement of the recreational
counted against the established quota.       significantly reduce mortality and           retention and size limit should increase
Under this process and using the LCS         would not contribute to rebuilding LCS.      because the new permit requirement
classification alternative described         This is especially true given the            will allow NMFS to send regulatory
above, the proposed quota level for LCS      possibility of increasing dead discards if   information to a known universe of
is 1,109 metric tons (mt) dressed weight     the minimum size were kept in place          anglers and improve monitoring of
(dw) and for SCS is 454 mt dw.               and in consideration of the proposed         catches. If compliance does increase,
   The LCS quota levels under this           time/area closure (described below) to       maintaining the one shark per vessel per
process change, depending on which           protect juvenile sandbar and dusky           trip in combination with the size limit
classification alternative is used. For      sharks.                                      (discussed below) should reduce fishing
example, if the ridgeback and non­             NMFS also considered other                 mortality to levels recommended in the
ridgeback LCS split is maintained (the       minimum sizes such as a 5–ft (152–cm)        2002 LCS stock assessment and
no action classification alternative), the   FL minimum size for all LCS; a 5–ft          therefore would contribute to rebuilding
LCS quota would be 1,109 mt dw for           (152–cm) FL for ridgeback LCS and a          LCS. If compliance does not increase,
ridgeback LCS and 555 mt dw for non­         4.5–ft (137–cm) FL for non-ridgeback         NMFS would consider other alternatives
ridgeback LCS. Total quota levels for        LCS; and regional minimum sizes.             in the future.
LCS using the MSY basis ranged from          These alternatives were not preferred           NMFS also considered adding an
1,109 mt dw for the aggregate (the           due to concerns regarding identification     allowance for one pelagic shark per
preferred classification alternative) to     problems and concerns that they could        vessel per trip; adding an allowance for
3,200 mt dw for a more species-specific      increase dead discards, particularly for     additional sharks for vessels
classification.                              sharks such as blacktip sharks, that do      participating in registered HMS
   NMFS also considered basing the           not segregate by size.                       tournaments or for vessels that have
quota on recent landings adjusted to                                                      been issued an HMS Charter/Headboat
account for any recommendations by           3. Proposed Recreational Management
                                                                                          permit; requiring catch-and-release
the stock assessments. The same method       Measures
                                                                                          fishing for all sharks; and removing all
was used in the emergency rule that             The measures analyzed in this             retention limits for sharks. The first two
established quotas for the 2003 fishing      category include the following issues:       alternatives were not preferred because
year (67 FR 78990, December 27, 2002;        retention limit, minimum size                NMFS does not have a current stock
extended by 68 FR 31987, May 29,             restrictions, and authorized gears. The      assessment for pelagic sharks and
2003). Under this method, the quota          alternatives for these issues are            therefore could not analyze the impacts
would be considered the total allowable      described below.                             of increasing the retention of pelagic
catch level, and both dead discards and      A. Retention Limit                           sharks. Additionally, the second
state landings after a federal closure                                                    alternative could increase the number of
would be counted against the                    In the 1999 HMS FMP, NMFS                 LCS harvested by anglers, contrary to
established quota. Total quota levels for    established a recreational retention limit   the rebuilding plan for LCS. The third
LCS using the average landings method        of one shark of any species per vessel       alternative was not preferred because
ranged from 1,016 mt dw for the              per trip with an additional allowance of     NMFS believes that this alternative may
aggregate (the preferred classification      one Atlantic sharpnose shark per person      have significant social and economic
alternative) to 1,725 mt dw for a more       per trip. This retention limit was           impacts on the recreational fishery and
species-specific classification. The         established in order to reduce the           increasing compliance on the current
quota level for SCS using the average        harvest of LCS by recreational fishermen     regulations should contribute to
landings method would be 300 mt dw.          by over 80 percent and prevent an            rebuilding of LCS. However, if
                                             increase in harvest of SCS. Additionally,    compliance does not improve, NMFS
D. Minimum Size Restrictions                 establishing one limit for all species,      may need to implement this type of
   In the HMS FMP, NMFS established          except for Atlantic sharpnose, would         alternative. The last alternative was not
a minimum size limit of 4.5 ft (137 cm)      simplify the regulations and improve         preferred because that would increase
fork length (FL) for all ridgeback LCS.      compliance with the regulations by           the harvest of LCS, contrary to the
This size limit was based on the size of     avoiding misidentification problems.         rebuilding plan.
maturity of the sandbar shark and was           NMFS is proposing to maintain this
finalized in order to reduce fishing         retention limit and also allow for one       B. Minimum Size Restrictions
mortality of the sandbar shark,              bonnethead shark per person per trip.           In the HMS FMP, NMFS established
particularly on juveniles, and to            Based on the results of the SCS stock        a recreational size of 4.5 ft (137 cm) FL
mitigate the possible quota reductions       assessment, NMFS feels that additional       for all sharks except Atlantic sharpnose.
that would be necessary without that         mortality of bonnethead sharks should        This size limit is based on the age of
size limit. At the time, NMFS noted that     not result in an overfished condition.       first maturity for sandbar sharks. While
this management measure, which was           Additionally, bonnethead sharks are          this size limit essentially created a
suspended due to litigation, was a type      easily identified and are not likely to be   catch-and-release fishery for SCS, it
of moving time/area closure in that it       confused with juvenile LCS. Allowing         allows for landings of LCS and pelagic
could offer protection to small sharks in    the retention of bonnethead sharks may       sharks while protecting juvenile LCS.
any area but that it could also result in    also afford some economic and social         NMFS established this size limit to
dead discards of sandbar sharks and          benefits for tournament or charter/          protect juvenile LCS and to ensure
other species. A size limit was not          headboat operators. Due to apparent          rebuilding of LCS.
placed on non-ridgeback LCS because,         non-compliance issues, the limit of one         In this action, NMFS proposes to
unlike sandbar sharks, blacktip sharks       shark per vessel per trip has not led to     maintain the current size limit and
do not segregate based on size.              a reduction in the harvest of LCS by         extend the exception for Atlantic
   Given the results of the 2002 LCS         recreational fishermen. However, with        sharpnose sharks to bonnethead sharks.
stock assessment, particularly the fact      the new permit requirement for               Keeping this size limit would afford
that sandbar sharks are no longer            recreational shark fishermen, NMFS           some protection to juvenile LCS, as
overfished, NMFS concludes that, at          believes that compliance and                 recommended by the 2002 LCS stock
45200               Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

assessment. Most bonnethead sharks           4. Proposed Bycatch Reduction                 consistent with the large whale take
caught do not reach the current size         Management Measures                           reduction plan, need to have a working
limit. Because bonnethead sharks are            The measures analyzed in this              VMS unit installed whenever the vessel
not experiencing overfishing, are not        category include the following issues:        is away from port from November 15
overfished, and are easily identified,       gear restrictions and time/area closures.     through March 31 (right whale calving
NMFS does not believe that the               The alternatives for these issues are         season). Owners with bottom longline
removing the size limit for bonnethead       described below.                              gear on board and a directed LAP for
sharks would cause them to be                                                              sharks would need to have a working
overfished or would impede the               A. Gear Restrictions                          VMS unit installed whenever the vessel
rebuilding of LCS.                              Currently, NMFS has several                is operating between 32° N. lat and 38°
   As described above, NMFS believes         management measures designed to               N. lat from January 1 through July 31 for
that if compliance with the retention        reduce bycatch and bycatch mortality of       bottom longline vessels (see proposed
limit and the size limit increases, that     sea turtles and marine mammals                time/area closure discussion below).
                                             including net checks and a time/area             To determine whether the entire HMS
these two management measures would
                                             closure in the gillnet fishery and posting    bottom longline fleet needed VMS
meet the recreational fishing mortality
                                             handling and release guidelines in the        installed, NMFS analyzed the fishing
reductions needed to rebuild LCS                                                           reports of current permit holders and
within the proposed timeframe. If            bottom longline fishery. NMFS is
                                             proposing several additional gear             found that approximately 80 percent of
compliance is not increased, NMFS may                                                      permit holders fished in an area near to
need to consider other alternatives.         restrictions in order to further reduce
                                             bycatch and bycatch mortality in shark        the homeport provided on the
   Other alternatives considered for this    fisheries.                                    application for their permits. The result
proposed rule include: increasing the                                                      was the same regardless of the vessel
size limit to 5 ft(152.4 cm) fl;             i. Strikenet only                             size. Thus, because bottom longline
establishing different size limits for          NMFS proposes to allow only                fishermen do not appear to fish in many
ridgeback LCS and non-ridgeback LCS          strikenetting and prohibit drift              different areas, NMFS concludes that
and other species; establishing regional     gillnetting, in the shark gillnet fishery.    only fishermen operating in an area and
size limits for ridgeback and non­           While drift gillnets have been observed       time around the proposed closed area
ridgeback LCS; and no size limit. These      to catch several different species of sea     would need VMS installed on their
alternatives were not preferred due to       turtles and marine mammals, strikenets        vessel. If additional closed areas are
concerns regarding misidentification of      have not. Additionally, over 90 percent       implemented or if the mobility of the
sharks.                                      of the catch of observed strikenets have      fleet increases, NMFS may require VMS
                                             been of the target shark species and only     on more vessels.
C. Authorized Gears                                                                           VMS would aid NMFS in enforcing
                                             three teleost and ray species have been
   The current regulations state that        observed caught.                              the regulations for time/area closures
sharks can only be possessed if they            While switching to strikenet is            while allowing vessels to transit closed
were caught with handgear, longline, or      expensive and may be cost-prohibitive         areas to reach homeports and could
gillnet. The regulations, however, do not    for some vessels, NMFS knows that             provide vessels some safety benefits. In
specify which gears types are                three of the six vessels that are currently   the case of strikenet vessels, VMS may
considered recreational and which gear       in the shark gillnet fishery have used        reduce the amount of observer coverage
types are commercial. This rule              strikenet. Additionally, once a vessel is     required in the fishery during that time
proposes to limit the allowable gears in     using strikenet, because it is so efficient   period. In the case of bottom longline
the recreational shark fishery to rod and    at catching just the target species,          vessels, VMS could allow vessels with
reel and handline, which are typically       compared to drift gillnet, reductions in      sharks on board to transit the closed
used for recreational fishing in HMS         sorting time and time spent fishing may       area.
                                             reduce the overall cost of fishing.              However, installing and maintaining
fisheries.
                                                Many shark gillnet fishermen               VMS can be expensive. Based on the
   This change would make the                participate in non-HMS drift gillnet          cost of VMS for pelagic longline
allowable gears for the shark                fisheries during a LCS closure.               fishermen, the initial installation of
recreational fishery consistent with         Additionally, many gillnet fishermen in       VMS could be approximately $1,900 to
allowable gears for the Atlantic tunas       non-HMS drift gillnet fisheries catch         $3,250 and each unit could have an
and billfish fisheries and could aid in      sharks. In order to reduce any regulatory     average maintenance cost of $500 per
compliance with the retention and size       discards of incidental takes of sharks in     year. To mitigate these costs, NMFS
limits. This limitation is not expected to   non-HMS fisheries that result from the        hopes to develop a range of possible
have any ecological or economic              prohibition of drift gillnet, this            units and service providers similar to
impacts because the majority of, if not      proposed management measure would             what was done for the pelagic longline
all, recreational fishermen already use      allow vessels issued a shark LAP to land      fleet. If NMFS does not implement a
these gears to fish for sharks.              a limited number of sharks (5 LCS and         time/area closure for bottom longline
Additionally, these gear types are           16 SCS and pelagic sharks combined,           fishermen, bottom longline fishermen
thought to have lower post-release           per trip), consistent with the quota and      would not be required to have VMS on
mortality rates than some of the             closure regulations, if they are using        board their vessel.
commercial gears. Thus, any sharks           drift gillnet in a non-HMS fishery.
caught above the retention limit or                                                        iii. Other gear requirements
under the minimum size would have a          ii. VMS                                          NMFS is also proposing several
greater chance of surviving after release.      NMFS is also proposing a VMS               requirements for bottom longline
Vessels that have been issued an HMS         requirement for vessels with gillnet and      fishermen that are similar to the
Charter/Headboat permit and a shark          bottom longline gear on board. Under          requirements for pelagic longline
LAP, would be able to use commercial         this management measure, owners with          fishermen. These include requiring the
gear types as long as the vessel is not      strikenet gear on board their vessel and      use of non-stainless steel corrodible
engaged in a for-hire recreational trip.     a directed LAP for sharks would,              hooks, the possession of release
                    Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                           45201

equipment (line cutters, dipnets, and,      Carolina had recently closed state            another homeport, or continue to fish
when approved, dehooking devices),          waters, which, at the time of developing      from their current homeport and transit
and a requirement that vessels move 1       the HMS FMP, was estimated to be              the closed area. Currently, there are
nautical mile after an interaction with a   sufficient to reduce juvenile sandbar         approximately 34 directed shark LAPs
marine mammal or a sea turtle. If used      and dusky shark mortality. In addition,       (14 percent of all directed shark LAPs)
correctly, the hook and release             the commercial minimum size finalized         issued to fishermen in Virginia, North
equipment requirements could be             in the HMS FMP was considered to be           Carolina, and South Carolina. These 34
effective in reducing post-release          as effective as a time/area closure.          fishermen and their dealers would be
mortality of sea turtles, marine               In this action, NMFS proposes to           directly affected by the closure. The
mammals, sharks, and other species.         close an area approximately 38,200            fishermen who remain in the fishery
The cost for this equipment should be       nmi2 off the coasts of Virginia, North        would experience additional fishing
minimal and would be a one-time             Carolina, and South Carolina to vessels       costs including the cost of fuel,
expense.                                    issued directed shark LAPs with bottom        potentially longer trips, and potentially
   Moving after an interaction with a       longline gear on board from January 1         the need to find a new dealer. VMS
marine mammal or sea turtle could help      through July 31. This area encompasses        might help minimize the economic and
prevent additional interactions with        areas that have been identified in the        social impacts because fishermen could
protected species. This management          HMS FMP and Amendment 1 as EFH for            transit the area to offload fish. In other
measure could result in additional cost     sandbar and dusky sharks and as an            words, they could continue to use their
per trip for fishermen including the cost   habitat area of particular concern for        traditional dealers and would not have
of fuel; however, because few sea turtles   sandbar sharks.                               to be away from their families or
or marine mammals have been observed           Observer data from 1994 through 2003       communities for as long as they would
caught in the bottom longline fishery,      for the bottom longline fishery indicates     if they could not transit the closed area.
NMFS does not expect this requirement       that 85 percent of all dusky sharks              Fishermen and dealers outside the
to affect more than a few trips for all     observed have been caught in this area        area could experience some benefits
vessels combined, each year.                and 92 percent of those were juvenile or      because more of the quota would be
   In addition to the preferred             neonate sharks. Additionally, 66 percent      caught outside the closed area.
alternatives outlined in sections i, ii,    of all sandbar sharks observed have           However, there could also be some
and iii, NMFS also considered (1)           been caught in this area and 54 percent       negative impacts if relocating fishermen
prohibiting the use of gillnet; (2)         of those were juvenile or neonate             add more pressure to a community that
limiting the length of bottom longline      sharks. In areas outside the proposed         already has many fishermen.
gear; (3) limiting the soak time for        time/area closure, only 7 percent of             NMFS also considered other closures
bottom longline gear; (4) requiring the     sandbar sharks were juveniles, and no         including closing all EFH for neonate
use of circle hooks; (5) requiring the      neonates were observed caught.                and juvenile sharks during pupping
retention of all sharks (i.e, no discards      If effort is redistributed to other open   season and a closure for finetooth EFH
allowed); and (6) requiring recreational    areas in the Atlantic, analyses using the     in St. Andrews Bay area, Florida. The
and commercial fishermen to attend          full observer database indicate that 79       first alternative was not preferred
bycatch reduction workshops. The first      percent fewer dusky sharks would be           because it could close large portions of
alternative would have larger social and    caught and 48 percent fewer sandbar           the Economic Exclusive Zone (EEZ) for
economic impacts and would not be           sharks would be caught. In total, using       large periods of time and therefore
much more beneficial in reducing            all observer data from 1994 through           could put many shark fishermen out of
bycatch than the preferred alternative of   2003, the analyses indicate that 27           business. The second alternative was
strikenet only. The second and third        percent fewer LCS could be caught as a        not preferred because finetooth EFH is
alternatives could have positive            result of the closure. The estimated          located almost exclusively in state
ecological benefits. However, it would      reductions change if a more recent            waters, over which NMFS would not
be difficult to ensure compliance and       timeframe (i.e., 2000 through 2003) is        have jurisdiction.
these alternatives could cause fishermen    used. However, due to the uncertain
to fish in an unsafe manner. The fourth     regulations in the shark fishery from         5. Other Proposed Management
alternative might have positive             1999 through the present as a result of       Measures
ecological benefits but NMFS is not sure    ongoing litigation, NMFS believes that a         The measures analyzed in this
of what the impacts of circle hooks         longer time period is more indicative of      category include the following issues:
would be on the shark fishery or how        what could happen as a result of the          deepwater and other sharks, prohibited
many vessels already use circle hooks.      time/area closure. Given the historically     species, and exempted fishing permits
While the fifth alternative would           short seasons, it is likely that shark        (EFPs). The alternatives for these issues
eliminate regulatory discards in the        fishermen would still catch the full          are described below.
shark fishery, it could result in           quota even with the closed area. Thus,
fishermen targeting species of sharks on    NMFS expects that the closure would           A. Deepwater and Other Sharks
the prohibited species list that cannot     protect dusky and juvenile sharks in the        In the 1993 Shark FMP, NMFS
withstand fishing pressure. The sixth       area but would not reduce the overall         decided that some species of sharks did
alternative could have ecological           LCS landed.                                   not need management at that time but
benefits but could also have economic          This closure would likely have large       that data should be collected on these
impacts on fishermen.                       negative economic and social impacts          species. These species are currently in
                                            on the communities, fishermen, and            the group called ‘‘Deepwater and Other
B. Time/Area Closure                        dealers who live near the closed area.        Sharks’’ and include species such as
   In the HMS FMP, NMFS did not             Fishermen who have traditionally              smooth dogfish, the catsharks, the
finalize any time/area closures to          fished the proposed closed area could         lanternsharks, and the gulper sharks.
protect juvenile sharks because most        go out of business or leave the fishery         In the 1999 HMS FMP, NMFS added
shark nursery or pupping grounds are        from January through July of each year,       those species to the management unit
within state waters (outside of NMFS’       relocate to a different homeport during       with the express purpose of bringing
jurisdiction). Also, the State of North     the closure, relocate permanently to          them under the regulations to protect
45202               Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

them from finning. There are no other        process in the 1999 HMS FMP, species            In this action, NMFS is proposing an
regulations on these species; fishermen      could be added to or removed from the        administrative change where vessel
do not currently need a permit to fish       prohibited species list.                     owners who collect sharks or HMS for
for them and are not limited in the             Under the proposed rule, species          public display would be issued a
number of fish that are taken. In most       could be added to the prohibited species     ‘‘public display permit’’ instead of an
cases, the sharks in this management         list if at least two of the following        EFP. At this time, the application and
group are only taken as bycatch in some      criteria are met: (1) There is sufficient    issuance procedures for a public display
trawl fisheries. With the                    biological information to indicate the       permit would be the same as those for
implementation of the Shark Finning          stock warrants protection, such as           an EFP. Sharks taken with a public
Prohibition Act (67 FR 6194, February        indications of depletion or low              display permit would still be counted
11, 2002), these sharks are protected        reproductive potential or the species is     against the 60 mt ww public display
against finning. Given that the finning      on the ESA candidate list; (2) the           quota. The conditions of the permit
protection is no longer needed under         species is rarely encountered or             would depend on the proposal
the HMS FMP, NMFS is proposing to            observed caught in HMS fisheries; (3)        submitted by the vessel owner.
remove these species from the                the species is not commonly                  Changing the permit name should not
management unit. NMFS would                  encountered or observed caught as            have any ecological, economic, or social
continue to collect data for these           bycatch in fishing operations; or (4) the    impacts but would clarify the purpose
species. NMFS does not expect any            species is difficult to distinguish from     for which the permit was issued.
ecological, economic, or social impacts      other prohibited species (i.e., look-alike      NMFS may consider other changes to
as a result of removing these species        issue). Alternatively, a species could be    the EFP/SRP/pubic display permitting
from the management unit.                    removed from the prohibited species list     system in the future. These changes
                                             if it meets only one of the criteria.        could include a requirement for
B. Prohibited Species                        Under the proposed alternative, NMFS         background checks regarding previous
   In 1997, NMFS prohibited                  does not expect any ecological,              fisheries violations, a mandatory
commercial and recreational                  economic, or social impacts but the          application form, or specific quotas for
   fishermen from possessing or landing      alternative could clarify the reason for     all HMS regarding public display or
five species of sharks: white, whale,        species being added or removed and           scientific research. NMFS welcomes any
basking, sandtiger, and bigeye sandtiger.    allow for more rapid and adaptive            comments on these potential
These species were identified as highly      management of the species.                   alternatives.
susceptible to overexploitation and the         NMFS is not proposing to change the
prohibition was seen as a precautionary      current prohibited species list at this      6. EFH Update
measure to ensure that directed fisheries    time. However, NMFS would continue              Under the Magnuson-Stevens Act,
on these species did not develop.            to issue EFPs or scientific research         each FMP must describe EFH for the
   In the 1999 HMS FMP, NMFS                 permits (SRPs), as appropriate, to           fishery, minimize to the extent
prohibited 14 additional species             fishermen or researchers who would           practicable adverse effects on that EFH
including, but not limited to, dusky,        like to collect information to indicate      caused by fishing, and identify other
night, Atlantic angel, Caribbean reef,       that a certain species of shark does or      actions to encourage the conservation
longfin mako, and sevengill sharks.          does not meet the above criteria. NMFS       and enhancement of EFH. In the 1999
These species were added as a result of      may remove some of the current species       HMS FMP, NOAA Fisheries identified
a change in policy from one where a          in the future using the proposed             EFH for all actively managed species of
species could be caught unless it was        mechanism.                                   sharks and two habitat areas of concern.
shown to be susceptible to overfishing          NMFS also considered alternatives for     Under the EFH regulations, NMFS must
to one where possession of certain           adding or removing certain species from      review EFH areas every five years and
species was allowed only if that species     the list including adding finetooth          update EFH areas if there is a change of
was known or expected to be able to          sharks, adding deepwater and other           status or if new information becomes
withstand specified levels of fishing        sharks, returning to the original five       available. Because the new stock
mortality. Thus, species that were rarely    species, and removing dusky sharks.          assessments resulted in a change of
caught (e.g., Caribbean reef) or that ones   While these alternatives could have          status for blacktip, sandbar, and
where NMFS had little biological data        merit, NMFS believes it is not               finetooth sharks, NMFS must update
available (i.e., Atlantic angel) were        appropriate to change the list until a       EFH for those species. NMFS is also
added to the list. Additionally, species     formal mechanism is approved.                updating EFH for nurse and dusky
such as dusky or night sharks, that were                                                  sharks due to new information. NMFS
candidates for listing under the             C. EFPs                                      will review EFH for all HMS over the
Endangered Species Act (ESA) or that           Under 50 CFR part 600, NMFS may            next year.
had become depleted, were also added         authorize for limited testing, public           In updating EFH identifications,
to the list.                                 display, and scientific data collection      NMFS is proposing two methods to
   The 1999 HMS FMP possession limits        purposes, the harvest of species             identify EFH: (1) Identify EFH for each
on prohibited species went into effect       managed under an FMP or fishery              species and life stages as those habitats
for recreational fishermen in 1999 and       regulations that would otherwise be          necessary for spawning, breeding,
for commercial fishermen on June 21,         prohibited. This exempted fishing may        feeding, or growth to maturity and (2)
2000 (65 FR 38440). Since that time,         only be conducted if authorized by an        increase or decrease existing EFH areas
NMFS has had numerous questions              EFP or SRP. In the 1999 HMS FMP,             for individual species based on special
regarding why certain species are or are     NMFS established a 60–mt whole               needs. The first alternative would help
not on the list and requests to add or       weight (ww) shark public display quota       to ensure identified EFH does not
remove certain species to or from the        for the purpose of collecting sharks for     include marginal habitat. The second
prohibited species list. To address these    aquariums and other instances of public      alternative would allow changes to the
requests, NMFS is proposing a                display. To collect sharks under this        geographic scope of EFH based on the
mechanism where, through the                 quota, vessel owners must be issued an       specific needs of the species. For
regulatory framework adjustment              EFP.                                         example, an overfished species may
                    Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                             45203

need a greater percentage of habitat         closure in the mid-Atlantic Bight.            applying for display permits could
identified as EFH to ensure its ability to   Additionally, NMFS knows of fewer             change compliance regarding the way
rebuild compared to a species that is not    than 11 shark fishermen who have used         and areas in which fishermen fish and
overfished. NMFS also considered             drift gillnet gear at some point in the       set their gear and could require an
identifying EFH based on the entire          past and only six in recent years. These      increase in the skill level needed to
geographic range of a species.               six vessels could be affected by the          participate in HMS fisheries. However,
   To update EFH identified for sandbar,     shark gillnet gear requirements of the        only the time/area closure, installing
blacktip, finetooth, nurse, and dusky        proposed rule including prohibiting           VMS, and the prohibition on drift
sharks, NMFS considered updated              drift gillnet gear while allowing             gillnet gear would be likely to have
fishery dependent and independent data       strikenet gear and requiring VMS during       significant negative economic impacts
for these species and considered new         right whale calving season.                   on some permit holders because these
information regarding the biology of            The proposed recreational                  measures have definite expenditures or
these species. NMFS also considered          requirements could also affect all            costs associated with them. Permit
changes in fishing practices and areas       recreational HMS permit holders               holders that are not directly affected by
since the 1999 HMS FMP. As a result,         including HMS Angling category permit         the proposed closure could experience
NMFS is proposing slight changes to the      holders (approximately 9,372 as of May        some economic benefits as a result of
EFH identified for individual life stages    2003) and HMS Charter/Headboat                the closure because more of the quota
and slight changes to the size ranges        permit holders (approximately 2,412 as        from January through July could be
used to define each life stage. Maps and     of May 2003) because some of these            harvested in their area. Prohibiting drift
specific changes are fully described in      permit holders target sharks. While           gillnet gear would likely result in
the DEIS for Amendment 1.                    there are a number of permit holders in       negative economic impacts for some of
                                             these categories, these permit holders        the six vessels actively fishing in the
Classification
                                             can target any HMS; few actually target       gillnet fishery, but overall would not
   This proposed rule is published under     sharks.                                       directly affect the vast majority of the
the authority of the Magnuson-Stevens           Other sectors of HMS fisheries such as     shark fishing fleet because these six
Act, 16 U.S.C. 1801 et seq.                  dealers, processors, bait houses, and
   As required under the Regulatory                                                        vessels make up a small percentage of
                                             gear manufacturers might be affected by       participants in the fishery. The other
Flexibility Act, NMFS has prepared an        the proposed regulations, particularly
IRFA. The IRFA examines the impacts                                                        alternatives listed that could change
                                             the shift to trimester seasons for            compliance and/or reporting
of the preferred alternatives and any        commercial fisheries, reduction in
significant alternatives to the proposed                                                   requirements would likely only have
                                             commercial LCS quota/ increase in             minor, if any, economic impacts on
rule that could minimize any significant     commercial SCS quota, and time/area
economic impacts on small entities. A                                                      small entities.
                                             closure off North Carolina during the
summary of the information presented         winter commercial fishery. However,              One of the requirements of an IRFA is
in the IRFA is below. Amendment 1            the proposed rule does not apply              to describe any alternatives to the
provides further discussion of the           directly to them. Rather it applies only      proposed rule which accomplish the
economic impacts of all the alternatives     to permit holders and fishermen. As           stated objectives and which minimize
considered. NMFS does not believe that       such, the economic impacts on these           any significant economic impacts (5
the proposed regulations would conflict      other sectors are discussed in                U.S.C. 603 (c)). Additionally, the
with any relevant regulations, federal or    Amendment 1 but not in the IRFA.              Regulatory Flexibility Act (5 U.S.C. 603
otherwise (5 U.S.C. 603(b)(5)).                 Some of the preferred alternatives in      (c) (1)-(4)) lists four categories for
   NMFS considers all commercial             this document may result in additional        alternatives that should be discussed.
permit holders to be small entities          reporting, recordkeeping, and                 These categories are: (1) establishment
according to the Small Business              compliance requirements (5 U.S.C.             of differing compliance or reporting
Administration’s size standard for           603(b)(4)). The proposed rule includes a      requirements or timetables that take into
defining a small entity (5 U.S.C.            requirement that would require                account the resources available to small
603(b)(3)). NMFS estimates that, as of       approximately six gillnet shark fishing       entities; (2) clarification, consolidation,
October 2002, there are approximately        vessels and approximately 10 directed         or simplification of compliance and
251 directed shark permit holders and        category bottom longline shark fishing        reporting requirements under the rule
376 incidental shark permit holders for      vessels (22 vessels have reported fishing     for such small entities; (3) use of
a total of 627 commercial permit holders     in the area but 12 of those would likely      performance rather than design
who are authorized to fish for and sell      already have VMS due to a requirement         standards; and (4) exemptions from
sharks commercially and who could be         in the pelagic longline fishery) to install   coverage of the rule for small entities.
affected by the preferred alternatives       VMS units at an initial average cost of          As noted earlier, NMFS considers all
outlined in the proposed rule. Only 120      approximately $1,900–3,250 ($1,600–           permit holders to be small entities. In
of these vessels (approximately 20           2,500 per unit and $300–750 installation      order to meet the objectives of this
percent of all permit holders) reported      fee), an average annual maintenance           proposed rule, consistent with the
landings of shark during 2001. These         cost of approximately $500/year, and          Magnuson-Stevens Act, NMFS cannot
120 vessels could be affected by all         approximately $1.44/day for position          exempt small entities or change the
proposed commercial requirements             reports. This alternative would likely        reporting requirements only for small
including managing LCS as one group,         increase costs but should not increase        entities. Additionally, many of the
the proposed quota level, regional           the needed skill level required for HMS       proposed measures such as quotas for
quotas, trimester quotas, and bycatch        fisheries.                                    the fishing season, retention limits for
reduction methods. There are 34 permit          Some of the proposed regulations           the recreational fishery, and gear
holders (approximately 5 percent of all      such as defining the recreational             restrictions would not be as effective
permit holders) located in Virginia,         authorized gear, prohibiting drift gillnet    with different compliance and reporting
South Carolina and North Carolina.           gear, implementing a time/area closure,       requirements. Thus, there are no
These permit holders could be directly       installing VMS, obtaining gear to reduce      alternatives available under the first and
affected by the proposed time/area           bycatch or bycatch mortality, and             fourth categories listed above.
45204               Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

Alternatives under the second and third       that profits could increase due to less      the protection of juvenile sharks,
categories are discussed below.               time taken to sort the catch. No other       rebuilding of LCS could be delayed,
   The group of proposed measures for         measure, other than banning gillnet gear     contrary to the provision of the
commercial minimum size and quotas            altogether, would be as effective at         Magnuson-Stevens Act.
was designed to minimize economic             minimizing bycatch in the gillnet               NMFS does not know of any
impacts incurred on fishermen while           fishery. The no action alternative would     performance standards or design
also, consistent with the Magnuson-           minimize the economic impacts on             specifications that would help reduce
Stevens Act and other domestic laws,          individual fishermen but would not           bycatch of sandbar, dusky, juvenile, or
enhancing equity among user groups,           address bycatch issues in this fishery       other sharks in this fishery. However,
allowing healthy stocks to be managed         and therefore would not be consistent        NMFS could issue EFPs to fishermen or
at optimum yield, and allowing                with the Magnuson-Stevens Act.               scientists who want to conduct research
overfished stocks to rebuild. For                NMFS is proposing a time/area             on this issue, similar to what is being
example, eliminating the minimum size         closure for sandbar and dusky shark          done in the Northeast Distant Statistical
could increase profits for individual         nursery and pupping areas off North          Area with the pelagic longline fishery.
fishermen by reducing costs associated        Carolina during the winter fishery. This        NMFS is also proposing to require
with the lengthening of trips (i.e., fuel,    alternative is designed to reduce            vessels that use strikenet gear during
bait, and ice). Maintaining the minimum       bycatch of neonate and juvenile sandbar      right whale calving season, consistent
size could result in decreased profits        and dusky sharks and is likely to have       with the large whale take reduction
due to the costs incurred taking longer       significant impacts on 34 permit holders     plan, or bottom longline gear in the
trips and the time taken to sort through      by closing large sections of coastal         south- and mid-Atlantic regions during
the catch. The proposed measure to            waters to shark fishing. This amounts to     the time/area closure to install VMS
aggregate LCS into one management             a direct economic impact on 14 percent       units. This would result in increased
group also simplifies compliance and          of the directed shark fleet.                 costs in the short-term. However, in the
reporting requirements under the                 During 2001, only 13 permit holders       long-term, VMS could result in
proposed rule for small entities.             with home ports located in South             increased revenues by preventing more
   While NMFS considered other                Carolina, North Carolina, and Virginia       burdensome regulations and allowing
commercial quota-related alternatives         reported shark landings. These vessels       more fishing time. Additionally, under
that could, in combination with other         reported gross revenues totaling             this alternative, bottom longline vessels
alternatives, result in larger quotas and,    $351,600 during that year. Economic          would be able to traverse closed area
therefore, fewer negative economic            analyses indicate that, if effort is not     and gillnet vessels might require less
impacts or greater profits for individual     redistributed, the proposed time/area        observer coverage. The VMS units for
fishermen. These alternatives included        closure would result in a 4–percent          the HMS pelagic longline fleet have an
establishing the LCS quotas on a more         reduction in total gross revenues for the    initial average cost of approximately
species-specific basis, establishing the      fishery as a whole and in a 27–percent       $1,900–3,250 ($1,600–2,500 per unit
LCS and SCS quotas based on recent            reduction of revenues for the small          and $300–750 installation fee), an
landings, maintaining the commercial          entities directly affected by the            average annual maintenance cost of
minimum size, and not establishing            proposed closure. Fishermen would be         approximately $500/year, and
regional quotas. These alternatives           directly impacted by a reduction in          approximately $1.44/day for position
could also increase confusion for fishery     catch and income from areas that they        reports.
participants by establishing several          have traditionally relied upon. Fishing         An economic analyses of the impacts
different closure dates and requiring         practices and behavior of fishermen          associated with VMS requirements
greater skill at species identification.      would also be affected by requiring          indicate that only 6 percent of the fleet
Additionally, these alternatives could        fishermen to travel further offshore. Due    would be affected and that this would
result in delays in rebuilding LCS,           to greater distances traveled, fishermen     result in a 9–percent reduction in total
contrary to the Magnuson-Stevens Act          would spend more time at sea, and            gross revenues for fishery as a whole
and the goals of the proposed rule.           associated costs of food, fuel, and labor    and a one time 31–percent reduction in
   NMFS is also proposing several             could increase and profits decrease.         total gross revenues for the vessels
management measures designed,                 This could cause some fishermen to go        directly affected by this proposed
consistent with the Magnuson-Stevens          out of business, move to new areas, or       requirement as a result of the purchase
Act, to reduce, to the extent practicable,    alter fishing patterns in other ways. This   and installation of the units. To provide
bycatch and bycatch mortality of HMS,         alternative could result in a change in      vessel owners with flexibility and help
protected species, and other fish in          the distribution of benefits and costs,      minimize costs, NMFS would type-
shark fisheries. Specifically, the            with the financial costs of operating in     approve several different VMS units and
alternative that prohibits drift gillnet      the fishery increasing and benefits          manufacturers for use, similar to the
gear and allows strikenet gear is likely      decreasing. However, the preferred           units approved for use in the pelagic
to result in negative economic impacts        alternative may result, once LCS             longline fisheries. No VMS units have
for a limited number of small entities        rebuild, in slight benefits for fishery      been type-approved yet specifically for
(i.e., three of the six vessels actively      participants that are not directly           use in the Atlantic shark fisheries as of
fishing in the shark gillnet fishery).        affected by the closure and it minimizes     this date. Based on the range of VMS
Because of the one-time costs involved,       the economic impacts compared to the         units commercially available, NMFS
switching to strikenet gear could put         other time/area closure alternatives         expects any VMS unit type-approved for
these fishermen out of business.              considered. The no action alternative        Atlantic shark fisheries to be similar or
However, NMFS knows that three of             could also minimize the impacts but          identical to those type-approved for the
these vessels already use strikenet gear      that alternative would not minimize          pelagic longline fisheries. Once the
and strikenet gear has almost no bycatch      bycatch and bycatch mortality, to the        type-approval is complete, it is likely
while drift gillnet gear has interactions     extent practicable, consistent with the      that this alternative will result in
with many different species including         Magnuson-Stevens Act, and would not          simplification of compliance and
sharks, fish, and sea turtles. Once the       protect juvenile sharks as recommended       reporting requirements under the
switch to strikenet is made, it is possible   by the LCS stock assessment. Without         proposed rule for such small entities.
                    Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                            45205

VMS would only be needed if there is        proposing several management                    These proposed regulations are not
a time/area closure in order to ensure      measures that are likely to result in        expected to increase endangered species
adequate compliance with the closure.       minor, if any, economic costs or benefits    or marine mammal interaction rates. A
Not requiring VMS could result in           on small entities. Some of these             Biological Opinion (BiOp) issued June
inadequate enforcement of a time/area       measures may simplify existing               14, 2001, concluded that continued
closure that minimizes bycatch and aids     compliance and reporting requirements.       operation of the Atlantic pelagic
in rebuilding LCS. Thus, not requiring      These measures are: limiting the             longline fishery is likely to jeopardize
VMS is not consistent with the              authorized gear in the shark recreational    the continued existence of endangered
objectives of this proposed rule or the     fishery to handline and rod and reel         and threatened sea turtle species under
Magnuson-Stevens Act.                       (most fishermen already use these gear
                                                                                         NOAA Fisheries jurisdiction, and that
   The other proposed bycatch measures      types); removing the species group
would require vessels to buy release                                                     other HMS fisheries would adversely
                                            ‘‘deepwater and other sharks’’ from the
equipment or gear that would reduce         management unit and specifying these         affect, but were not likely to jeopardize,
post-release mortality. In addition,        species for data collection purposes         the continued existence of endangered
vessels would be required to move one       only; retaining the current 19 prohibited    and threatened marine mammal or sea
nautical mile away immediately after        species and establishing criteria for the    turtle populations. On July 9, 2002 (67
interacting with a protected species.       addition/removal of other species to/        FR 45393), NOAA Fisheries
These measures would likely result in       from the prohibited species group;           implemented the reasonable and
minor economic impacts to small             updating identified EFH; and changing        prudent alternative required by the
entities, primarily because the cost        the name of a permit.                        BiOp. Regarding the pelagic longline
associated with purchasing release             This proposed rule contains new           fishery, these proposed regulations
equipment is minimal and is a one time      collection-of-information requirements       would not have any additional impact
cost. The requirement to move one           subject to review and approval by the        on sea turtles as these actions would not
nautical mile after an interaction with a   Office of Management and Budget              change pelagic longline fishery
marine mammal or sea turtle would           (OMB) under the Paperwork Reduction          regulations and therefore, would not
likely increase fuel costs due to           Act (PRA). The following requirements        change pelagic longline fishing effort or
increased time transiting to another        and estimated times per response have        patterns. Regarding the shark bottom
fishing area and increased time needed      been submitted to OMB for approval: 4        longline, gillnet, and recreational
to fish if alternate fishing grounds are    hours for installation of a VMS, 5           fisheries, these proposed regulations are
not as productive for target species.       minutes for completion of a VMS
                                                                                         expected to decrease bycatch and
However, because few marine mammals         certification statement, 2 hours per year
                                                                                         bycatch mortality of protected species
or sea turtles have been observed           for VMS maintenance, and 0.3 seconds
caught, NMFS does not believe that this     for an automated position report from a      by reducing fishing effort (e.g., reducing
requirement would affect more than a        VMS.                                         the LCS commercial quota,
few trips for all vessels combined, each       This proposed rule also contains          implementing a bottom longline time
year. Not requiring the release             collection-of-information requirements       and area closure, expanding the
equipment or movement after a               that have already been approved by           restriction for gillnet vessels to strikenet
protected species interaction would not     OMB under control number 0648–0471.          at all times, requiring vessel monitoring
minimize bycatch and bycatch mortality      These requirements and their estimated       systems (VMS) on gillnet and bottom
as is required under the Magnuson-          response times are 30 minutes for an         longline vessels to enforce time and area
Stevens Act and the Endangered Species      application for a shark display permit,      closures, increasing outreach and
Act.                                        and 5 minutes for a catch report from a      enforcement of recreational retention
   The proposed recreational retention      holder of a shark display permit.            and size limits, and requiring vessels
limit (existing size and bag limit plus        Public comment is sought regarding:       with bottom longline gear to move 1
one bonnethead shark per person per         whether these proposed collections of        nmi after an interaction) and decreasing
trip with no minimum size) was also         information are necessary for the proper     post-release mortality (requiring non-
designed to minimize the economic           performance of the functions of the          stainless steel hooks, dipnets, line
impacts on recreational fishermen while     agency, including whether the
                                                                                         cutters, and dehooking devices).
also allowing for healthy stocks to be      information shall have practical utility;
managed at optimum yield and                the accuracy of the burden estimate;            This proposed rule has been
overfished stocks to rebuild. Because       ways to enhance the quality, utility, and    determined to be not significant for
this alternative relieves a previous        clarity of the information to be             purposes of Executive Order 12866.
restriction by allowing for more sharks     collected; and ways to minimize the
                                                                                         List of Subjects
to be harvested, this alternative may       burden of the collection of information,
increase revenues to charter/headboats      including through the use of automated       50 CFR Part 600
and other small entities who rely on the    collection techniques or other forms of
                                                                                           Administrative practice and
recreational shark fishery for income       information technology. Send comments
and could increase the willingness to       on these or any other aspects of the         procedure, Confidential business
pay and angler consumer surplus. While      collection of information to the HMS         information, Fisheries, Fishing, Fishing
some other retention limit alternatives     Division and to OMB at the                   vessels, Foreign relations,
considered could further relieve            ADDRESSES above.                             Intergovernmental relations, Penalties,
restrictions to the recreational fishery       Notwithstanding any other provision       Reporting and recordkeeping
and increase profitability of charter/      of the law, no person is required to         requirements, Statistics.
headboat fishermen, those alternatives      respond to, nor shall any person be          50 CFR Part 635
may not allow for overfished LCS to         subject to a penalty for failure to comply
                                                                                           Fisheries, Fishing, Fishing vessels,
rebuild, as required under the              with, a collection of information subject
                                                                                         Foreign relations, Imports, Penalties,
Magnuson-Stevens Act.                       to the requirements of the PRA, unless
   In addition to the management            that collection of information displays a    Reporting and recordkeeping
measures described above, NMFS is also      currently valid OMB Control Number.          requirements, Treaties.
45206                     Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

  Dated: July 25, 2003.                            PART 635—ATLANTIC HIGHLY                        § 635.5    Recordkeeping and reporting.
Rebecca Lent,                                      MIGRATORY SPECIES                               *      *    *      *     *
Deputy Assistant Administrator for                                                                    (e) Inspection. Any person authorized
Regulatory Programs, National Marine                 3. The authority citation for 50 CFR          to carry out enforcement activities
Fisheries Service.                                 part 635 continues to read as follows:          under the regulations in this part has
  For the reasons set out in the                     Authority: 16 U.S.C. 971 et seq.; 16 U.S.C.   the authority, without warrant or other
preamble, 50 CFR parts 600 and 635 are             1801 et seq.                                    process, to inspect, at any reasonable
proposed to be amended as follows:                    4. In § 635.2, the definition of             time, catch on board a vessel or on the
                                                   ‘‘Management unit,’’ under paragraph            premises of a dealer, logbooks, catch
PART 600—MAGNUSON-STEVENS                          (5), is revised and new definitions for         reports, statistical records, sales
ACT PROVISIONS                                     ‘‘Display permit,’’ ‘‘Mid-Atlantic shark        receipts, or other records and reports
                                                   closed area,’’ and ‘‘Strikenet or to fish       required by this part to be made, kept,
  1. The authority citation for 50 CFR             with strikenet gear’’ are added in
part 600 continues to read as follows:                                                             or furnished. An owner or operator of a
                                                   alphabetical order to read as follows:          fishing vessel that has been issued a
   Authority: 5 U.S.C. 561 and 16 U.S.C. 1801                                                      permit under § 635.4 or § 635.32 must
et seq.                                            § 635.2 Definitions.
                                                                                                   allow NMFS or an authorized person to
  2. In § 600.725, section IX of the list          *      *     *     *    *                       inspect and copy any required reports
of authorized fisheries and gears in                  Display permit means a permit issued         and the records, in any form, on which
paragraph (v) is revised to read as                in order to catch and land sharks for the       the completed reports are based,
follows:                                           purpose of public display pursuant to           wherever they exist. An agent of a
                                                   § 635.32.                                       person issued a vessel or dealer permit
§ 600.725 General prohibitions.
                                                   *      *     *     *    *                       under this part, or anyone responsible
*       *     *      *      *                         Management unit means in this part:
    (v) * * *                                                                                      for offloading, storing packing, or selling
                                                   *      *     *     *    *                       regulated HMS for such permittee, shall
                                    Authorized
                                                      (5) For sharks, means all fish of these      be subject to the inspection provisions
              Fishery 	                            species in the western north Atlantic           of this section.
                                    gear types
                                                   Ocean, including the Gulf of Mexico             *      *    *      *     *
*         *           *         *       *          and the Caribbean Sea, excluding those
                                                   species listed in Table 2 of Appendix A.        § 635.16    [Reserved]
                                                   *      *     *     *    *                         7. Remove and reserve § 635.16.
       IX. SECRETARY OF COMMERCE                                                                     8. In § 635.20, paragraph (e) is revised
1. Atlantic Tunas, Swordfish,                         Mid-Atlantic shark closed area means
   and Sharks Fisheries                            the Atlantic Ocean area seaward of the          to read as follows:
   (FMP):                                          inner boundary of the U.S. EEZ from a           § 635.20    Size limits.
A. Swordfish handgear fishery A. Rod and           point intersecting the inner boundary of
                                   reel, har­      the U.S. EEZ at 37°30′ N. lat. near             *     *     *     *     *
                                   poon,                                                             (e) Sharks. All sharks landed under
                                                   Wachapreague Inlet, Virginia, and
                                   handline,                                                       the recreational retention limits
                                                   proceeding due east to connect by
                                   bandit gear                                                     specified at § 635.22(c) must have the
                                                   straight lines the following coordinates
B. Pelagic longline fishery     B. Longline                                                        head, tail, and fins attached and be at
                                                   in the order stated: 37°30′N. lat., 74°15′
C. Shark gillnet fishery        C. Strikenet                                                       least 54 inches (137 cm) FL, except that
D. Shark bottom longline fish- D. Longline         W. long.; 33°00′ N. lat., 74°15′ W. long.;
                                                                                                   the minimum size limit does not apply
   ery                                             then proceeding due west to intersect
                                                                                                   for Atlantic sharpnose sharks or for
E. Shark handgear fishery	      E. Rod and         the inner boundary of the U.S. EEZ at
                                                                                                   bonnethead sharks.
                                   reel,           33°00′ N. lat. near Cape Romain, South
                                   handline,       Carolina.                                       *     *     *     *     *
                                   bandit gear                                                       9. In § 635.21, paragraph (d) is
                                                   *      *     *     *    *                       redesignated as paragraph (e), a new
F. Shark recreational fishery   F. Rod and
                                                      Strikenet or to fish with strikenet gear
                                   reel,                                                           paragraph (d) is added, and the newly
                                   handline        means a gillnet with webbing of 5
                                                                                                   redesignated paragraphs (e)(3)(i)
G. Tuna purse seine fishery     G. Purse           inches or greater stretched mesh that is
                                                                                                   through (e)(3)(iv) are revised to read as
                                   seine           designed so that, when it is deployed,
                                                                                                   follows:
H. Tuna recreational fishery    H. Rod and         it encircles or encloses an area of water
                                   reel,           either with the net or by utilizing the         § 635.21 Gear operation and deployment
                                   handline        shoreline to complete encirclement, or          restrictions.
I. Tuna handgear fishery 	      I. Rod and         to fish with such a net and method.             *     *     *      *     *
                                   reel, har­                                                        (d) Bottom longlines. For the purposes
                                   poon,           *      *     *     *    *
                                   handline,          5. In § 635.3, paragraph (d) is revised      of this part, a vessel is considered to
                                   bandit gear     to read as follows:                             have bottom longline gear on board
J. Tuna harpoon fishery         J. Harpoon                                                         when a power-operated longline hauler,
                                                   § 635.3 Relation to other laws.                 a mainline, weights and/or anchors
2. Atlantic Billfish Fishery
   (FMP):                                          *     *     *     *    *                        capable of maintaining contact of the
Recreational fishery            Rod and reel         (d) An activity that is otherwise             mainline with the ocean bottom, and
3. Commercial Fisheries         Rod and reel,      prohibited by this part may be                  leaders (gangions) with hooks are on
   (Non-FMP) 	                     handline,       conducted if authorized as scientific           board. Removal of any one of these
                                   longline,       research activity, exempted fishing or          elements constitutes removal of bottom
                                   gillnet, har­   exempted educational activity, or for
                                   poon, ban­
                                                                                                   longline gear. If a vessel issued a permit
                                                   public display, as specified in § 635.32.       under this part is in a closed area
                                   dit gear,
                                   purse seine     *     *     *     *    *                        designated under paragraph (d)(1) of
*           *          *      *         *            6. In § 635.5, paragraph (e) is revised       this section with bottom longline gear
                                                   to read as follows:                             on board, it is a rebuttable presumption
                     Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                            45207

that fish on board such a vessel were            (ii) No person may fish for sharks           12. In § 635.27, paragraph (b) is
taken with bottom longline in the closed      with a strikenet with a total length of 2.5   revised to read as follows:
area.                                         km or more. No person may have on
   (1) If bottom longline gear is on board    board a vessel a gillnet with a total         § 635.27   Quotas.
a vessel issued a permit under this part,     length of 2.5 km or more.                     *       *    *     *     *
persons aboard that vessel may not fish          (iii) Provisions on gear deployment           (b) Sharks. (1) Commercial quotas.
or deploy any type of fishing gear in the     for the southeast U.S. shark gillnet          The commercial quotas for sharks
mid-Atlantic shark closed area from           fishery to implement the Atlantic Large       specified in paragraphs (b)(1)(i) through
January 1 through July 31 each calendar       Whale Take Reduction Plan are set forth       (b)(1)(vi) of this section apply to sharks
year.                                         in § 229.32(f) of this title.                 harvested from the management unit,
   (2) When a marine mammal or sea               (iv) While fishing for Atlantic sharks     regardless of where harvested.
turtle is hooked or entangled by bottom       with a strikenet, the strikenet must          Commercial quotas are specified for
longline gear, the operator of the vessel     remain attached to at least one vessel at     each of the management groups of large
must immediately release the animal,          one end, except during net checks.            coastal sharks, small coastal sharks, and
retrieve the bottom longline gear, and        *       *    *     *     *                    pelagic sharks. No prohibited sharks
move at least 1 nm (2 km) from the               10. In § 635.22, paragraph (c) is          listed in table 1(d) of appendix A to this
location of the incident before resuming      revised as follows:                           part may be retained except as
fishing. Reports of marine mammal                                                           authorized under § 635.32.
entanglements must be submitted to            § 635.22 Recreational retention limits.          (i) Fishing seasons. The commercial
NMFS consistent with regulations in           *      *     *     *     *                    quotas for large coastal sharks, small
§ 229.6 of this title.                           (c) Sharks. One shark from either the      coastal sharks, and pelagic sharks are
   (3) The operator of a vessel required      large coastal, small coastal, or pelagic      split between three fishing seasons:
to be permitted under this part and that      group may be retained per vessel per          January 1 through April 30, May 1
has bottom longline gear on board must:       trip, subject to the size limits described    through August 30, and September 1
   (i) Undertake the same bycatch             in § 635.20(e), and, in addition, one         through December 31.
mitigation measures as specified in           Atlantic sharpnose shark and one                 (ii) Regions. The commercial quotas
paragraphs (c)(5)(i), (ii), and (iii)(B) of   bonnethead shark may be retained per          for large coastal sharks, small coastal
this section to release sea turtles,          person per trip. Regardless of the length     sharks, and pelagic sharks are split
prohibited sharks, and other animals, as      of a trip, no more than one Atlantic          between three regions. The regions are:
appropriate.                                  sharpnose shark and one bonnethead            Gulf of Mexico, South Atlantic, and
   (ii) Possess and use a dehooking           shark per person may be possessed on          North Atlantic. For the purposes of this
device that meets the minimum design          board a vessel. No prohibited sharks          section, the Gulf of Mexico region
standards. The dehooking device must          listed in table 1(d) of appendix A to this    includes all waters of the U.S. EEZ west
be carried on board and must be used          part may be retained. The recreational        and north of the boundary stipulated at
to remove the hook from any hooked sea        retention limit for sharks applies to a       50 CFR 600.105(c). The South Atlantic
turtle, prohibited shark, or other animal,    person who fishes in any manner,              region includes all waters east of the
as appropriate. NMFS will file with the       except to a person aboard a vessel who        Gulf of Mexico up to 36°30′ N. lat.,
Office of the Federal Register for            has been issued an Atlantic shark LAP         including the waters surrounding the
publication the minimum design                under § 635.4. If an Atlantic shark quota     Caribbean. The North Atlantic region
standards for approved dehooking              is closed under § 635.28, the                 includes all waters north of 36°30′ N.
devices. NMFS may also file with the          recreational retention limit for sharks       lat.
Office of the Federal Register for            may be applied to persons aboard a               (iii) Large coastal sharks. The annual
publication any additions and/or              vessel issued an Atlantic shark LAP           commercial quota for large coastal
amendments to the minimum design              under § 635.4, only if that vessel has        sharks is 1,109 mt dw (unless otherwise
standards.                                    also been issued an HMS Charter/              specified in the Federal Register as
   (e) * * *                                  Headboat permit issued under § 635.4          provided in paragraph (b)(1)(vi) of this
   (3) * * *                                  and is engaged in a for-hire trip.            section). This annual quota is split
   (i) No person issued a shark LAP           *      *     *     *     *                    between the regions as follows: 42
under § 635.4 may possess a shark in the         11. In § 635.24, paragraph (a)(2) is       percent to the Gulf of Mexico, 54
EEZ if the shark was taken from its           revised to read as follows:                   percent to the South Atlantic, and 4
management unit by any gear other than                                                      percent to the North Atlantic. The
rod and reel, handline, bandit gear,          § 635.24 Commercial retention limits for      length of each fishing season will be
longline, or strikenet, except that such      sharks and swordfish.                         determined based on the projected catch
sharks taken incidentally while fishing       *      *     *   *     *                      rates, available quota, and other relevant
with drift gillnet may be retained               (a) * * *                                  factors. At least 30 days prior to the
subject to restrictions specified in             (2) Persons who own or operate a           beginning of the season, NMFS will file
§ 635.24 (a)(2). No person issued an          vessel that has been issued an incidental     with the Office of the Federal Register
HMS Angling permit or an HMS                  LAP for sharks may retain, possess or         for publication the length of each
Charter/headboat permit under § 635.4         land no more than 5 LCS and 16 SCS            season.
may possess a shark in the EEZ if the         and pelagic sharks, combined, per trip.          (iv) Small coastal sharks. The annual
shark was taken from its management           Persons aboard a vessel that has been         commercial quota for small coastal
unit by any gear other than rod and reel      issued a LAP for shark, that has a drift      shark is 454 mt dw, (unless otherwise
or handline, except that persons on a         gillnet on board, and upon which non-         specified in the Federal Register as
vessel issued both an HMS Charter/            HMS fish constitute not less than 75          provided in paragraph (b)(1)(vi) of this
headboat permit and a shark LAP may           percent by weight of the total fish on        section). This annual quota is split
possess sharks taken with bandit gear,        board or offloaded may retain, possess,       between the regions as follows: 4
longline, or strikenet if the vessel is not   or land no more than 5 LCS and 16 SCS         percent to the Gulf of Mexico, 83
engaged in a for-hire recreational fishing    and pelagic sharks, combined, per trip.       percent to the South Atlantic, and 13
trip.                                         *      *     *   *     *                      percent to the North Atlantic.
45208                  Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

   (v) Pelagic sharks. The annual            for publication a notice of closure at         part, NMFS has the sole authority to
commercial quotas for pelagic sharks are     least 14 days before the effective date.       issue permits, authorizations, and
92 mt dw for porbeagle sharks, 273 mt        From the effective date and time of the        acknowledgments. If a regulated species
dw for blue sharks, and 488 mt dw for        closure until additional quota becomes         landed or retained under the authority
pelagic sharks other than porbeagle or       available, the fishery in that particular      of this section is subject to a quota, the
blue sharks (unless otherwise specified      region for the appropriate shark species       fish shall be counted against the quota
in the Federal Register as provided in       group is closed, and sharks of that            category as specified in the written
paragraph (b)(1)(vi) of this section).       species group may not be retained on           authorization. Inspection requirements
   (vi) Annual adjustments. (A) NMFS         board a fishing vessel issued a                specified in § 635.5(e) of this part apply
will adjust the next year’s fishing season   commercial permit pursuant to § 635.4          to the owner or operator of a fishing
quotas for large coastal, small coastal,     in that particular region.                     vessel that has been issued a exempted
and pelagic sharks to reflect actual            (3) When the fishery in a particular        fishing permit, scientific research
landings during any fishing season in        region for a shark species group is            permit, or display permit.
any particular region. For example, a        closed, a fishing vessel issued an             *      *    *      *     *
commercial quota underharvest or             Atlantic Sharks LAP pursuant to § 635.4           (d) Display permits. (1) For activities
overharvest in the fishing season in one     may not possess or sell a shark of that        consistent with the purposes of this
region that begins January 1 will result     species group, except under the                section and § 600.745(b)(1) of this
in an equivalent increase or decrease in     conditions specified in § 635.22 (a) and       chapter, NMFS may issue display
the following year’s quota for that region   (c), and a permitted shark dealer may
                                                                                            permits. Application procedures shall
for the fishing season that begins           not purchase or receive a shark of that
                                                                                            be as indicated under § 600.745(b)(2) of
January 1. NMFS will file any                species group from a vessel issued an
                                                                                            this chapter, except that NMFS may
adjustment with the Office of the            Atlantic Sharks LAP, except that a
                                                                                            consolidate requests for the purposes of
Federal Register for publication at least    permitted shark dealer or processor may
                                                                                            obtaining public comment. In such
30 days prior to the start of the next       possess sharks that were harvested, off-
                                                                                            cases, NMFS may file with the Office of
fishing season.                              loaded, and sold, traded, or bartered,
                                                                                            the Federal Register for publication
   (B) NMFS will reduce the annual           prior to the effective date of the closure
                                                                                            notification on an annual or, as
commercial quota for pelagic sharks by       and were held in storage.
                                                                                            necessary, more frequent basis to report
the amount that the blue shark quota is      *      *     *    *     *                      on previously authorized public display
exceeded at least 30 days prior to the          14. In § 635.32, paragraph (a) is           fishing activities and to solicit public
start of the next fishing season.            revised; paragraph (c)(2) is removed;
   (C) Sharks taken and landed from                                                         comment on anticipated public display
                                             paragraphs (c)(3) and (c)(4) are               fishing requests.
state waters are counted against the         redesignated as paragraphs (c)(2) and
fishery quota for the applicable region                                                        (2) Notwithstanding the provisions of
                                             (c)(3), respectively; and paragraph (d) is
and time period.                                                                            § 600.745 of this chapter and other
                                             added to read as follows:
   (2) Public display and research quota.                                                   provisions of this part, a valid display
The annual quota for persons who             § 635.32 Specifically authorized activities.   permit is required to fish for, take,
collect sharks from any of the                  (a) General. Consistent with the            retain, or possess a shark in or from the
management groups under a display            provisions of § 600.745 of this chapter,       Atlantic EEZ for the purposes of public
permit or EFP is 60 mt whole weight (43      except as indicated in this section,           display under the shark public display
mt dw). All sharks collected under the       NMFS may authorize for the conduct of          and research quota specified in
authority of a display permit or EFP,        scientific research or the acquisition of      § 635.27(b)(2). A valid shark display
subject to restrictions at § 635.32, will    information and data, for the                  permit must be on board the harvesting
be counted against this quota.               enhancement of safety at sea, for the          vessel, must be available when the shark
                                             purpose of collecting animals for public       is landed, must be available when the
*      *     *     *    *
   13. In § 635.28, paragraph (b) is         education or display, or for investigating     shark is transported to the display
revised to read as follows:                  the reduction of bycatch, economic             facility, and must be presented for
                                             discards or regulatory discards,               inspection upon request of an
§ 635.28   Closures.                         activities otherwise prohibited by the         authorized officer. A shark display
*      *    *      *    *                    regulations contained in this part.            permit is valid for the specific time,
   (b) Sharks. (1) The commercial fishery    Activities subject to the provisions of        area, gear, and species specified on it.
for large coastal sharks will remain open    this section include, but are not limited         (3) To be eligible for a shark display
in each region under the fishing seasons     to, scientific research resulting in, or       permit, a person must provide all
and regional quotas, as specified at         likely to result in, the take, harvest or      information concerning his or her
§ 635.27(b)(1). From the effective date      incidental mortality of Atlantic HMS,          identification, numbers by species of
and time of a season closure in a            exempted fishing and exempted                  sharks to be collected, when and where
particular region until additional quota     educational activities, or programs            they will be collected, vessel(s) and gear
becomes available, the fishery for large     under which regulated species retained         to be used, description of the facility
coastal sharks in that particular region     in contravention to otherwise applicable       where they will be displayed, and any
is closed, and sharks of that species        regulations may be donated through             other information that may be necessary
group may not be retained on board a         approved food bank networks. Such              for the issuance or administration of the
fishing vessel issued a commercial           activities must be authorized in writing       permit, as requested by NMFS.
permit pursuant to § 635.4 in that           and are subject to all conditions                 (4) Written reports on fishing
particular region.                           specified in any letter of                     activities and disposition of catch must
   (2) When the fishing season quota for     acknowledgment, exempted fishing               be submitted to NMFS at an address
small coastal sharks or pelagic sharks       permit, scientific research permit, or         designated by NMFS, for each fish
specified in § 635.27(b)(1) for a            display permit issued in response to           collected within 5 days of the
particular region is reached, or is          requests for authorization under this          collection. An annual written summary
projected to be reached, NMFS will file      section. For the purposes of all               report of all fishing activities and
with the Office of the Federal Register      regulated species covered under this           disposition of all fish collected under
                    Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules                              45209

the permit must also be submitted to           (4) The species is difficult to            gear subject to the VMS provisions of
NMFS at an address designated by             distinguish from other prohibited            this section must allow NMFS, the
NMFS. NMFS will provide specific             species.                                     USCG, and their authorized officers and
conditions and requirements, consistent      *     *     *    *     *                     designees access to the vessel’s position
with the Fishery Management Plan for           16. In § 635.69, paragraphs (a), (e),      data obtained from the VMS at the time
Atlantic Tunas, Swordfish, and Sharks        and (h) are revised to read as follows:      of or after its transmission to the vendor
in the display permit.                                                                    or receiver, as the case may be.
*     *     *    *     *                     § 635.69 Vessel monitoring systems.
                                                                                          *      *     *      *      *
  15. In § 635.34, paragraph (b) is             (a) Applicability. To facilitate             17. In § 635.71, paragraphs (a)(1),
revised and paragraph (c) is added to        enforcement of time-area and fishery         (a)(2), (a)(7), (a)(14), (a)(17), (a)(18),
read as follows:                             closures, an owner or operator of a          (a)(23), (a)(26), (a)(34), (a)(36), and
                                             commercial vessel permitted to fish for      (a)(37); (b)(7) and (b)(8); (c)(1); and
§ 635.34 Adjustment of management            Atlantic HMS under § 635.4 and that
measures.                                                                                 (d)(10), (d)(12), and (d)(13) are revised,
                                             fishes with a pelagic or bottom longline     and paragraphs (a)(39) and (a)(40) are
*      *     *     *    *                    or strikenet gear is required to install a
   (b) In accordance with the framework                                                   added to read as follows:
                                             NMFS-approved vessel monitoring
procedures in the Fishery Management         system (VMS) unit on board the vessel        § 635.71   Prohibitions.
Plan for Atlantic Tunas, Swordfish, and      and operate the VMS unit whenever the        *       *    *     *      *
Sharks and the Fishery Management            vessel leaves port with pelagic longline
Plan for Atlantic Billfishes, NMFS may                                                       (a) * * *
                                             gear on board; whenever the vessel              (1) Falsify information required on an
establish or modify for species or           leaves port with bottom longline gear on
species groups of Atlantic HMS the                                                        application for a permit submitted
                                             board, is operating between 32° N. lat       under § 635.4 or § 635.32.
following management measures:               and 38° N. lat, and the mid-Atlantic
maximum sustainable yield or optimum                                                         (2) Fish for, catch, possess, retain, or
                                             shark closed area is closed to bottom
yield levels based on the latest stock                                                    land an Atlantic HMS without the
                                             longline fishing as specified in
assessment or updates in the SAFE                                                         appropriate valid vessel permit, LAP,
                                             § 635.21(d)(1)(i); or whenever the vessel
report; domestic quotas; recreational                                                     EFP, or display permit on board the
                                             leaves port with a strikenet on board
and commercial retention limits,                                                          vessel, as specified in §§ 635.4 and
                                             during the right whale calving season
including target catch requirements; size                                                 635.32.
                                             specified in the Large Whale Take
limits; fishing years or fishing seasons;    Reduction Plan in § 229.32 (f) of this       *       *    *     *      *
shark fishing regions or regional quotas;    title. A vessel is considered to have           (7) Fail to allow an authorized agent
species in the management unit and the       pelagic longline gear on board for the       of NMFS to inspect and copy reports
specification of the species groups to       purposes of this section, when gear as       and records, as specified in § 635.5(e) or
which they belong; species in the            specified at § 635.21(c) is on board. A      § 635.32.
prohibited shark species group;              vessel is considered to have bottom          *       *    *     *      *
classification system within shark           longline gear on board for the purposes         (14) Fail to install, activate, repair, or
species groups; permitting and reporting     of this section, when gear as specified      replace a vessel monitoring system prior
requirements; Atlantic tunas Purse           at § 635.21(d) is on board. A vessel is      to leaving port with pelagic longline
Seine category cap on bluefin tuna           considered to have strikenet gear on         gear, bottom longline gear, or strikenet
quota; time/area restrictions; allocations   board for the purposes of this section,      gear on board the vessel as specified in
among user groups; gear prohibitions,        when strikenet, as defined, is on board      § 635.69.
modifications, or use restrictions; effort   a vessel that has been issued a shark
restrictions; essential fish habitat; and                                                 *       *    *     *      *
                                             LAP.                                            (17) Fish for Atlantic tunas,
actions to implement ICCAT
recommendations, as appropriate.             *      *     *     *    *                    swordfish, or sharks with a gillnet or
   (c) NMFS may add species to the              (e) Operation. Owners or operators of     possess Atlantic tunas, swordfish, or
prohibited shark species group specified     vessels permitted, or required to be         sharks on board a vessel with a gillnet
in Table 1 of Appendix A if, after           permitted, to fish for HMS that have         on board, as specified in § 635.21 (b),
considering the criteria in paragraphs       pelagic or bottom longline gear or           (e)(1), (e)(3), and (e)(4)(ii).
(c)(1) through (4) of this section, the      strikenet gear on board, and that are           (18) Fail to retrieve fishing gear and
species is determined to meet at least       required to have a VMS unit installed,       move after an interaction with a marine
two of the criteria. Alternatively, NMFS     as specified in paragraph (a), must          mammal or sea turtle, as specified in
may remove species from the prohibited       activate the VMS to submit automatic         § 635.21 (c)(3) or (d)(2).
shark species group and place them in        position reports beginning 2 hours prior
                                                                                          *       *    *     *      *
the appropriate shark species group in       to leaving port and not ending until the
                                             vessel returns to port. While at sea, the       (23) Fail to comply with the
Table 1 of Appendix A if, after                                                           restrictions on use of a pelagic longline,
considering the criteria in paragraphs       unit must operate without interruption
                                             and no person may interfere with,            bottom longline, or shark strikenet as
(c)(1) through (4) of this section, NMFS                                                  specified in § 635.21 (c), (d), or (e)(3)(ii),
determines the species only meets one        tamper with, alter, damage, disable, or
                                             impede the operation of a VMS, or            (iii), and (iv).
criterion.                                                                                *       *    *     *      *
   (1) Biological information indicates      attempt any of the same. Vessels fishing
                                             outside the geographic area of operation        (26) Violate the terms and conditions
that the stock warrants protection.
   (2) Information indicates that the        of the installed VMS will be in violation    or any provision of an exempted fishing
species is rarely encountered or             of the VMS requirement.                      permit, scientific research permit, or
observed caught in HMS fisheries.            *      *     *     *    *                    display permit issued under the
   (3) Information indicates that the           (h) As a condition to obtaining a LAP     authority of § 635.32.
species is not commonly encountered or       for Atlantic swordfish, sharks, or tunas,    *       *    *     *      *
observed caught as bycatch in fishing        all vessel owners or operators using            (34) Fail to disengage any hooked or
operations for species other than HMS.       pelagic or bottom longline or strikenet      entangled sea turtle with the least harm
45210               Federal Register / Vol. 68, No. 148 / Friday, August 1, 2003 / Proposed Rules

possible to the sea turtle as specified at      (40) Deploy or fish with any fishing         (d) * * *
§ 635.21 (c)(5) or (d)(3).                   gear from a vessel with bottom longline         (10) Retain, possess, sell, or purchase
*     *     *     *     *                    gear on board without carrying a dipnet,     a prohibited shark, as specified under
                                             line clipper, and dehooking device as        § 635.22(c) and § 635.27 (b)(1) or fail to
  (36) Fish with bottom or pelagic           specified at § 635.21(d)(3).                 disengage any hooked or entangled
longline and shark strikenet gear for           (b) * * *                                 prohibited shark with the least harm
HMS without adhering to the gear                (7) Fish for, catch, retain, or possess   possible to the animal as specified at
operation and deployment restrictions        a BFT with gear not authorized for the       § 635.21(d)(3) .
required in § 635.21.                        category permit issued to the vessel or
                                                                                             ***
  (37) Fail to report to NMFS, at the        to have on board such gear when in
                                             possession of a BFT, as specified in            (12) Fish for Atlantic sharks with
number designated by NMFS, the                                                            unauthorized gear or possess Atlantic
incidental capture of listed whales with     § 635.21(e)(1).
                                                (8) Fail to request an inspection of a    sharks on board a vessel with
shark strikenet gear and sea turtle                                                       unauthorized gear on board as specified
                                             purse seine vessel, as specified in
mortalities associated with pelagic                                                       in § 635.21 (e)(3).
                                             § 635.21(e)(1)(vi)(B).
longline gear as required by § 635.5.                                                        (13) Fish for Atlantic sharks with a
                                             *      *     *     *     *
*     *     *     *     *                       (c) * * *                                 gillnet or possess Atlantic sharks on
  (39) Deploy or fish with any fishing          (1) Retain a billfish on board a vessel   board a vessel with a gillnet on board,
gear from a vessel with a bottom             with a pelagic longline on board or          except as specified in § 635.21 (e)(3).
longline on board in any closed area         harvested by gear other than rod and         *      *     *    *     *
during the time periods specified at         reel, as specified in § 635.21(e)(2).        [FR Doc. 03–19522 Filed 7–31–03; 8:45 am]
§ 635.21(d)(1).                              *      *     *     *     *                   BILLING CODE 3510–22–S

								
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