[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Rules and Regulations]
[Pages 33321-33323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13452]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 040430138-4173-02; I.D. 042204C]
RIN 0648-AS28


Atlantic Highly Migratory Species (HMS) Fisheries; Adjustment of 
the Semiannual Quotas for Large Coastal Sharks (LCS) in the North 
Atlantic Region; Shark Fishing Season

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: This final rule adjusts the North Atlantic region seasonal 
quota split from an equal percentage to a 20- to 80- percentage split 
between the first and second 2004 semiannual seasons, respectively. 
This action also notifies eligible participants of the opening and 
closing dates for the commercial Atlantic LCS fishery for the 2004 
second semiannual fishing season in the North Atlantic region.

DATES: This rule is effective on July 9, 2004. The fishery opening for 
LCS in the North Atlantic region is effective 12:01 a.m., local time, 
July 1, 2004, through 11:30 p.m., local time, July 15, 2004, and the 
closure is effective 11:30 p.m., local time, July 15, 2004, through 
11:59 p.m., local time December 31, 2004.

ADDRESSES: For copies of Amendment 1 to the Fisheries Management Plan 
for Atlantic Tunas, Swordfish, and Sharks or its implementing 
regulations, please write to Highly Migratory Species (HMS) Management 
Division (F/SF1), Office of Sustainable Fisheries, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, or 
visit the webpage http://www.nmfs.noaa.gov/sfa/hms.

FOR FURTHER INFORMATION CONTACT: Chris Rilling, Karyl Brewster-Geisz, 
or Heather Stirratt, phone 301-713-2347 or fax 301-713-1917.

SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). The 1999 Fishery Management Plan 
for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), and Amendment 1 to 
the HMS FMP, finalized in 2003, are implemented by regulations at 50 
CFR part 635.
    On December 24, 2003, NMFS issued a final rule (68 FR 74746) that 
established the 2004 annual landings quota for LCS at 1,017 metric tons 
(mt) dressed weight (dw). The final rule also established regional LCS 
quotas for the commercial shark fishery in the Gulf of Mexico (Texas to 
the West coast of Florida), South Atlantic (East coast of Florida to 
North Carolina and the Caribbean), and North Atlantic (Virginia to 
Maine). The quota for LCS was split between the three regions as 
follows: 42 percent to the Gulf of Mexico, 54 percent to the South 
Atlantic, and 4 percent to the North Atlantic. As was done since 1993, 
the quotas for each region were further split evenly between the 2004 
first and second semiannual fishing seasons.
    On May 13, 2004, NMFS published a proposed rule to adjust the 
seasonal quota split for the North Atlantic region (69 FR 26540). The 
comment period on that proposed rule closed on May 28, 2004. As 
described in the proposed rule, landings data from 2000-2002 indicated 
that the majority of LCS in the North Atlantic region were landed in 
the second semiannual season. Historically, first season landings, 
including state landings after a Federal closure, have ranged from 6 to 
38 percent, with an average of approximately 20 percent of the annual 
regional quota for the North Atlantic being landed during the first 
season. Second season landings, including state landings after a 
Federal closure, have ranged from 62 to 94 percent, with an average of 
approximately 80 percent of the annual regional quota for the North 
Atlantic being landed during the second season. In addition, as of 
April 23, 2004, there were no reported landings of LCS for the North 
Atlantic region during the first semiannual season, indicating that the 
current 50-percent split between the two semiannual seasons does not 
reflect the historic or current landings for the North Atlantic region.
    Thus, this final rule adjusts the seasonal quota split from an even 
split (50/50) to a 20/80 split resulting in 8.1 mt dw (17,857.3 lb dw) 
for the first semiannual season and 32.6 mt dw (71,870.0 lb dw) for the 
second semiannual season, not adjusted for any over- or underharvest. 
This action will not affect the overall LCS landings quota for the 
fishery or the region (40.7 mt dw or 89,727.2 lb dw for the North 
Atlantic), but will adjust the North Atlantic 2004 semiannual season 
quotas to result in a longer second season that more accurately 
reflects historical and current landings in the region. Available 
information regarding any over- or underharvest from both seasons will 
be considered before establishing the trimester season that begins in 
2005.
    There have been no changes from the proposed to the final rule.
    Since neither the annual quotas, nor the overall regional quotas 
will be changed, NMFS does not expect this action to result in any 
negative economic consequences. This action will likely have a positive 
economic impact by allowing fishermen to harvest an amount closer to 
the actual historic landings for the region. Without making this 
adjustment, the length of the second semiannual season would have to be 
shortened when the lower existing quota was reached, thus preventing 
fishermen from landing as many sharks as they have historically. The 
shortened season would also make effective management and reporting of 
the data in a timely manner impracticable. Dealer reports of shark 
landings are received on a bi-weekly basis, and under the lower 
existing quota the season would have to be closed in a matter of days 
rather than weeks, thus not allowing sufficient time to review landings 
reports.
    On June 1, 2004, NMFS published a notice in the Federal Register 
(68 FR 30837) announcing the opening and closing dates for the 
commercial Atlantic large coastal, small coastal, and pelagic shark 
fisheries for the 2004

[[Page 33322]]

second semiannual fishing season and the quotas for the Gulf of Mexico 
and the South Atlantic regions. This information is not repeated here.

Response to Comments

    Comments on the proposed rule received during the public comment 
period are summarized here together with NMFS' responses.
    Comment 1: The quotas have resulted in too short of a fishing 
season in the South Atlantic. If the quota split for the North Atlantic 
region is going to result in a longer second semiannual fishing season 
for the North Atlantic, then the South Atlantic region should have been 
allowed to have a longer first semiannual fishing season.
    Response: The lower overall LCS quota implemented in Amendment 1 to 
the HMS FMP, combined with splitting the quota among three regions, has 
resulted in a shorter fishing season for each of the regions. Adjusting 
the North Atlantic regional quota split between the first and second 
semiannual seasons is necessary because, as of April 23, 2004, there 
had been no reported landings of LCS for the first semiannual season in 
the North Atlantic region. By contrast, as of April 23, 2004, 87 
percent of the South Atlantic regional quota for the first season had 
been reported landed. The closure of the fishery in the South Atlantic 
region was thus timed appropriately to avoid an overharvest of LCS. If 
there had been a similar significant underharvest of LCS in other 
regions, along with historical data indicating a majority of landings 
in the second season, NMFS would have considered taking similar action 
to allow additional harvest during the second semiannual season, as 
appropriate, given the overall quota. For any quota not fully taken in 
any region, the underharvest will be added to the quota in the 2005 
fishing year, consistent with Sec.  635.27(b)(1)(vi).
    Comment 2: NMFS should not allow any harvest of sharks.
    Response: The Atlantic commercial shark fishery is being managed to 
allow for LCS to rebuild, consistent with the Magnuson-Stevens Act. In 
Amendment 1 to the HMS FMP, NMFS established the overall annual quota 
for LCS at 1,017 mt dw based on the latest stock assessments, and 
established a revised rebuilding plan for LCS. The environmental 
impacts of the overall regional quotas were analyzed in Amendment 1 to 
the HMS FMP and the final rule published on December 24, 2003, (68 FR 
74746). This action does not change the 40.7-mt dw quota allocated for 
the North Atlantic region as part of the rebuilding plan. Adjusting the 
2004 quota allocation for the North Atlantic region between the first 
and second semiannual seasons is not expected to have a negative impact 
on shark populations.
    Comment 3: The 15-day comment period was too short to allow true 
public comment.
    Response: The 15-day comment period was necessary in order to 
ensure sufficient notice of the closing date for the North Atlantic 
region's second semiannual fishing season prior to the start of that 
season on July 1, 2004.
    Comment 4: Adjusting the semiannual quota split from a 50/50 split 
to a 80/20 split is appropriate given that no LCS were reported landed 
in the North Atlantic region during the first semiannual fishing 
season.
    Response: The 80/20 split in this action ensures that the quota 
represents the true historical landings for the second semiannual 
season in the North Atlantic, without exceeding the overall quota for 
the region or the fishery as a whole.
    Regulations at 50 CFR 635.27(b) provide for adjustments of shark 
fishing quotas via a framework regulatory action.

Available Quota

    On December 24, 2003 (68 FR 74746), NMFS announced that the 2004 
annual landings quotas for LCS was established at 1,017 metric tons 
(mt) dressed weight (dw) (2,242,078.2 lb dw). The LCS quotas was also 
further split, consistent with Sec.  635.27(b)(1)(iii), between three 
fishing regions. The North Atlantic fishing region received four 
percent of the quota or 40.7 mt dw (89,727.2 lb dw).
    This final rule allocates 20 percent of the North Atlantic regional 
quota to the first 2004 semiannual fishing season and 80 percent to the 
second 2004 semiannual fishing season. Without accounting for any 
under- or overharvests, the 2004 North Atlantic regional semiannual LCS 
quota levels are 8.1 mt dw (17,857.3 lb dw) and 32.6 mt dw (71,870 lb 
dw) for the first and second semiannual seasons, respectively.
    In the December 2003 final rule, NMFS announced that due to an 
overharvest of the quota in the first 2003 semiannual season, the 2004 
first semiannual quota for all regions needed to be reduced by 55.4 mt 
dw (122,134.8 lb dw). Thus, accounting for four percent of the 
overharvest (2.2 mt dw or 4,850 lb dw), the North Atlantic regional LCS 
quota for the first 2004 semiannual season is now 5.9 mt dw (13,007 lb 
dw).
    In the fishing season Federal Register notice for the second 2004 
semiannual fishing season (69 FR 30837, June 1, 2004), NMFS announced 
that due to an underharvest in the 2003 second semiannual fishing 
season, the North Atlantic fishing region would have 7 mt dw (15,432.2 
lb dw) added to its available quota. Thus, the 2004 second semiannual 
fishing season LCS quotas for the North Atlantic region is 39.6 mt dw 
(87,302.2 lb dw).
    NMFS will take appropriate action before January 1, 2005, in order 
to determine and announce the 2005 first trimester quotas for the 
Atlantic shark fisheries, consistent with Sec.  635.27(b)(1)(iii).

Fishing Season Notification

    As announced in a separate Federal Register notice (69 FR 30837, 
June 1, 2004), the 2004 second semiannual commercial fishing season for 
LCS, SCS, pelagic sharks, blue sharks, and porbeagle sharks in all 
regions in the western north Atlantic Ocean, including the Gulf of 
Mexico and the Caribbean Sea, will open July 1, 2004. To estimate the 
LCS fishery closure dates, NMFS calculated the average reported catch 
rates for each region from the second seasons from recent years (2000, 
2001, 2002, and 2003) and used these average catch rates to estimate 
the amount of available quota that would likely be taken by the end of 
each dealer reporting period. Because state landings after a Federal 
closure are counted against the quota, NMFS also calculated the average 
amount of quota reported received after the Federal closure dates of 
the years used to estimate catch rates. Additionally, pursuant to Sec.  
635.5 (b)(1), shark dealers must report any sharks received twice a 
month: those sharks received between the first and 15th of every month 
must be reported to NMFS by the 25th of that same month and those 
received between the 16th and the end of the month must be reported to 
NMFS by the 10th of the following month. Thus, in order to simplify 
dealer reporting and aid in managing the fishery, NMFS will close the 
Federal LCS fishery on either the 15th or the end of any given month.
    Based on average LCS catch rates in recent years in the North 
Atlantic region, approximately 76 percent of the available LCS quota 
would likely be taken by the second week of July and 152 percent of the 
available LCS quota would likely be taken by the end of July. Dealer 
data also indicate that, on average, approximately 9 mt dw (19,841 lb 
dw) of LCS have been reported received by dealers after a Federal 
closure. This is approximately 24 percent of the available quota. Thus, 
if catch rates in 2004 are similar to the

[[Page 33323]]

average catch rates from 2000 to 2003, 100 percent (76 + 24 percent) of 
the quota could be caught over the entire semiannual season if Federal 
waters are closed during the second week of July. If the fishery 
remains open until the end of July, the quota would likely be exceeded 
(152 + 24 percent = 176 percent). Accordingly, the Assistant 
Administrator for Fisheries (AA) has determined that the North Atlantic 
LCS quota for the second 2004 semiannual season will likely be attained 
by July 15, 2004. Thus, the North Atlantic LCS fishery will close on 
July 15, 2004, at 11:30 p.m. local time.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. 
The AA previously determined in Amendment 1 to the HMS FMP that the 
implementation of regional quotas was necessary to ensure effective 
implementation of the commercial shark fishery. The AA has determined 
that this final rule is consistent with the Magnuson-Stevens Act and 
other applicable laws.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. No comments were received concerning the economic impact of 
the rule. As a result, a regulatory flexibility analysis was not 
prepared.
    As of October 2003, there were 56 directed shark limited access 
permits in the North Atlantic region that would be affected by this 
rule, all of which are considered small entities. This final rule will 
have a positive economic impact because it would allow the fishery to 
stay open longer, thus providing fishermen with a better opportunity to 
catch the quota. The positive economic impact is not expected to be 
significant because the overall quota would not be changed, only the 
period during which the quota may be harvested. By not making this 
adjustment, the second semiannual season length would be considerably 
shorter because the fishery would have to close when the lower existing 
quota was reached, the quota would not reflect historic and current 
landings in the fishery, and there could be a negative economic impact 
on fishermen due to the early closure and lower landings.
    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
final rule is not significant.
    NMFS notified all states, consistent with the Coastal Zone 
Management Act, of the regional quotas during the rulemaking for 
Amendment 1 of the HMS FMP. No states indicated that the regional quota 
requirement was inconsistent with their coastal zone management 
programs. Thus, NMFS has determined that adjusting the semiannual 
regional quota for the North Atlantic region would be consistent to the 
maximum extent practicable with the enforceable policies of those 
Atlantic, Gulf of Mexico, and Caribbean coastal states that have 
approved coastal zone management programs.
    The environmental impacts of the overall regional quotas were 
analyzed in Amendment 1 to the HMS FMP and the final rule published on 
December 24, 2003, (68 FR 74746). Adjusting the 2004 quota allocation 
for the North Atlantic region between the first and second semiannual 
seasons is not expected to have impacts on endangered species or marine 
mammal interaction rates beyond those impacts considered in the October 
29, 2003, Biological Opinion. NOAA Fisheries intends to act 
expeditiously to inform the interested public about this final action 
using direct email notification, a fax notice, and the internet.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: June 9, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 04-13452 Filed 6-9-04; 3:27 pm]
BILLING CODE 3510-22-S