[Federal Register Volume 69, Number 180 (Friday, September 17, 2004)]
[Proposed Rules]
[Pages 56024-56030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21002]



[[Page 56024]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 040910261-4261-01; I.D. 072704A]
RIN 0648-ASO8


Atlantic Highly Migratory Species; Atlantic Commercial Shark 
Management Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would adjust the regional and trimester 
quotas for Large Coastal Sharks (LCS) and Small Coastal Sharks (SCS) 
based on updated landings information. This proposed rule includes a 
framework mechanism for the annual adjustment of quotas to account for 
future overharvests and season closures, for transferring under- and 
overharvests during the transition from semi-annual to trimester 
seasons, and for notifying participants of season openings and 
closures. In addition, this rule proposes the opening and closing dates 
for the LCS fishery based on the proposed changes to the regional and 
trimester quotas. This action is necessary to ensure that the landings 
quotas in the Atlantic commercial shark fishery represent the latest 
landings data, and accurately reflect historic and current fishing 
effort.

DATES: Written comments will be accepted until 5 p.m. on October 18, 
2004.
    NMFS will hold three public hearings to receive comments from 
fishery participants and other members of the public regarding the 
proposed shark regulations. The hearing dates are:
    1. Tuesday, September 28, 2004, 7-9 p.m., Manteo, NC.
    2. Wednesday, September 29, 2004, 4-6 p.m., Cocoa Beach, FL.
    3. Thursday, September 30, 2004, 7-9 p.m., Madeira Beach, FL.

ADDRESSES: The hearing locations are:
    1. Manteo - North Carolina Aquarium, Roanoke Island, Airport Road, 
Manteo, NC 27954.
    2. Cocoa Beach - Cocoa Beach Public Library, 550 North Brevard 
Avenue, Cocoa Beach, FL 32931.
    3. Madeira Beach - City of Madeira Beach, 300 Municipal Dr., 
Madeira Beach, FL 33708.
    Written comments on the proposed rule or the Draft Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (Draft EA/RIR/IRFA) may be submitted to Christopher Rogers, 
Chief, Highly Migratory Species Management Division:
     E-mail: [email protected].
     Mail: 1315 East-West Highway, Silver Spring, MD 20910. 
Please mark the outside of the envelope ``Comments on Proposed Rule for 
LCS and SCS Quota Adjustments.''
     Fax: 301-713-1917.
     Federal e-Rulemaking portal: http://www.regulations.gov. 
Include in the subject line the following identifier: I.D. 072704A.
    Copies of the Draft EA/RIR/FRFA or Amendment 1 to the Fishery 
Management Plan for Atlantic Tunas, Swordfish, and Sharks or its 
implementing regulations, may be obtained by using the above mailing 
address, and are also available on the internet at http://www.nmfs.noaa.gov/sfa/hms.

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

SUPPLEMENTARY INFORMATION: The Atlantic shark fishery is managed under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act. The Fisheries Management Plan for Atlantic Tunas, 
Swordfish, and Sharks (HMS FMP) and Amendment 1 to the HMS FMP are 
implemented by regulations at 50 CFR part 635.

Background

    On December 24, 2003, NMFS published a final rule (68 FR 74746) for 
Amendment 1 to the HMS FMP that established, among other things, the 
2004 annual landings quota for LCS at 1,017 metric tons (mt) dressed 
weight (dw), and the annual landings quota for SCS at 454 mt dw. The 
final rule also established regional LCS and SCS 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 among 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. The quota for SCS was split among the three regions as 
follows: 4 percent to the Gulf of Mexico, 83 percent to the South 
Atlantic, and 13 percent to the North Atlantic.
    Recent updates to the regional landings data and new data collected 
since the December 2003 (68 FR 74746) final rule indicate that the 
regional quotas need to be adjusted. This action considers alternatives 
for adjusting the regional quotas.
    In addition, beginning in January 2005, each regional quota will be 
divided among three trimester seasons rather than two semi-annual 
seasons. The first trimester season will operate between January 1 and 
April 30, the second trimester season will operate between May 1 and 
August 31, and the third trimester season will operate between 
September 1 and December 31. This action and the associated EA consider 
alternatives for dividing each region's quota among the three seasons, 
as well as accounting for over- or underharvests in the transition from 
semi-annual to trimester seasons.

Regional Quota Distribution

    The regional quotas, along with trimester seasons, were implemented 
in Amendment 1 to the HMS FMP to ensure that historical catches were 
maintained, account for regional differences in fishing effort, and 
provide fishery managers with the flexibility to reduce mortality of 
juvenile and reproductive female sharks. For example, the quotas for 
the second trimester could be reduced and the fishing season shortened 
to minimize impacts during part of the primary shark pupping season.
    The current regional quotas were based upon average historical 
landings (1999-2001) from the General Canvass and Quota Monitoring 
System (QMS) databases. Average landings were calculated in order to 
minimize the uncertainty associated with inter-annual fluctuations in 
regional landings as well as differences in reported landings between 
the two databases.
    As of July 30, 2004, the overall semi-annual quota for LCS, but not 
SCS, was exceeded. Reported landings of LCS were at 107 percent of the 
LCS semi-annual quota, and SCS landings were at 31 percent of the SCS 
semi-annual quota for the three regions combined. The Gulf of Mexico 
experienced an overharvest of 21 and 22 percent of its LCS and SCS 
regional quotas, respectively, during the first semi-annual season of 
2004, and the South Atlantic experienced an overharvest of 5 percent of 
its LCS quota.
    For this proposed rule, NMFS examined commercial LCS and SCS 
landings data from 2002-2004 to determine the cause and nature of the 
increased harvests in the Gulf of Mexico. Preliminary information 
indicates that there was an increase in fishing effort in the Gulf of 
Mexico in

[[Page 56025]]

2002 and 2003 coupled with a reduction in effort in the North Atlantic 
region. Based on updated landings data, NMFS considered alternatives 
that would adjust the percentages of the overall LCS and SCS quotas 
among the regions to more accurately reflect current fishing effort.
    The preferred alternative, A3, would establish new regional quotas 
based on updated landings information and include a framework for 
annual adjustment of regional quotas, as necessary. NMFS proposes to 
adjust the regional quota split for LCS in the Gulf of Mexico, South 
Atlantic, and North Atlantic to 49, 38, and 13 percent of the overall 
LCS landings quota for each of the regions, respectively. Comparing 
these revised quotas to those published in Amendment 1, this represents 
an increase in the regional LCS quota for the Gulf of Mexico (+7 
percent) and North Atlantic (+9 percent), and a decrease in the 
regional LCS quota for the South Atlantic (-16 percent).
    The regional SCS quotas for the Gulf of Mexico, South Atlantic, and 
North Atlantic would be adjusted to 10, 87, and 3 percent of the 
overall SCS landings quota for each of the three regions, respectively. 
These quotas represent an increase in the regional quota for the Gulf 
of Mexico (+6 percent) and South Atlantic (+4 percent), and a decrease 
in the SCS quota for the North Atlantic (-10 percent).
    In proposing new regional quotas, NMFS examined updated landings 
from the General Canvass, QMS, Northeast Commercial Fisheries Database 
System (CFDBS), and the Coastal Fisheries Logbook databases. The 
updated landings include two additional years of data (2002 and 2003) 
that were not available during preparation of Amendment 1 to the HMS 
FMP. The four databases were used to collect all relevant data 
regarding shark landings. The General Canvass data are collected 
directly from all seafood dealers in the Southeast and Gulf of Mexico, 
the QMS data are collected from Federally-permitted shark dealers in 
the Southeast and Gulf of Mexico, the CFDBS data are collected from 
seafood dealers in the Northeast, and the Coastal Fisheries logbook 
data are submitted by commercial fishermen with any of the following 
permits: Gulf of Mexico Reef Fish, South Atlantic Snapper-Grouper, King 
and Spanish Mackerel, or Shark. In addition, NMFS re-reviewed data from 
1999-2001 and made some corrections in how the data were compiled.
    Overall economic impacts of adjusting the regional quotas are 
expected to be minimal. Economic data from LCS revenues generated in 
2003 indicate that the proposed adjustments to the regional quotas 
would result in an increase in gross revenues to the Gulf of Mexico (+1 
percent; $18,036) and North Atlantic (+6 percent; $19,612) regions, and 
a decrease in gross revenues to the South Atlantic (-6 percent; 
$130,169) region. Economic data for the SCS fishery indicate that gross 
revenues for the Gulf of Mexico would decrease (-57 percent; $14,885) 
while the gross revenues would increase for the South Atlantic (+54 
percent $27,443) and the North Atlantic (+3 percent; revenues unknown 
because of lack of landings in 2003). The percentage change in gross 
revenues for SCS is larger than for LCS in some of the regions, 
however, the total dollar value for the SCS fishery is minimal compared 
to the total gross revenues generated by the LCS fishery (approximately 
$93,734 for SCS vs. approximately $4,402,136 in 2002 for LCS).
    No ecological impacts are expected as a result of adjusting the 
regional quotas because the overall LCS and SCS quotas are not being 
changed, only the proportion of the quota being assigned to particular 
regions. For example, even though the quota for LCS in the Gulf of 
Mexico is being increased by approximately 7 percent, the LCS quota for 
the South Atlantic is proposed to be decreased by 16 percent, based 
upon updated landings data. As a result, there may be increased effort 
in the Gulf of Mexico, but a corresponding decline in effort in the 
South Atlantic.
    The overall quota for LCS was reduced in Amendment 1 by 
approximately 35 percent from the 2003 quota of 1,714 mt dw, and 14 
percent from 1997-2002 quotas of 1,285 mt dw. Since the overall quota 
will remain the same in this action as the one established in Amendment 
1 (1,017 mt dw), the regional quotas are still well below the historic 
average for any of the regions. The reduction in overall quotas, as 
well as regional quotas, resulted in a decline in overall and regional 
fishing effort for the shark bottom longline fishery beginning in 2004, 
and will likely continue in 2005. Thus, even though NMFS proposes to 
increase the regional quota for the Gulf of Mexico and North Atlantic 
when compared to Amendment 1, these quotas are still much lower than in 
years 1997-2003. Furthermore, these quotas are based upon effort from 
previous years 1999-2003, and are believed to be a more accurate 
reflection of current and historic fishing effort in all regions. NMFS 
does not anticipate that changes to regional quotas will result in 
activation of latent fishing effort, because even though the percentage 
given to a particular region may increase, the overall LCS and SCS 
quotas are not being changed.
    In addition to revising the regional quotas, NMFS is also proposing 
a framework mechanism for the annual adjustment of quotas among regions 
to minimize unharvested quotas using the following guidelines: if a 
region has an overharvest of 10 percent or greater of its regional 
quota, and another region or regions has an underharvest of more than 
10 percent of their respective quotas, then NMFS may transfer up to 10 
percent of the quota from the region or regions with the 
underharvest(s) to the region with the overharvest. Any overharvest 
above that 10 percent would be counted against that region's quota for 
the following year. For example, if a region had an overharvest of 15 
percent, 10 percent may be transferred from another region or regions, 
provided they had an underharvest greater than 10 percent each, and 5 
percent would be counted against the overharvesting region's quota for 
the following year. If the underharvest is less than 10 percent of the 
quota for any other region or regions, NMFS would not transfer any 
quota, even if another region or regions had an overharvest in excess 
of 10 percent. NMFS would transfer no more than 10 percent of a 
region's quota in any given year. If the overharvest is less than 10 
percent, NMFS would not transfer any quota, but rather, would subtract 
any overharvest from that region's quota for the same season of the 
following year. Other factors NMFS would consider before making a 
transfer include the likelihood of protected species interactions and 
bycatch rates within a region, historic landings for the region, total 
landings reported for all regions at the end of their respective 
seasons, the number of storms during the open season, the size of a 
region's quotas, the amount of available quota remaining, the projected 
ability of the vessels fishing in the region from which the quota is 
proposed to be removed to harvest the remaining quota, and the 
projected ability of vessels fishing in the region receiving the quota 
to harvest the additional quota. NMFS would file with the Office of the 
Federal Register for publication, consistent with the Administrative 
Procedure Act, any annual quota adjustments. These quota adjustments 
would not take place until the first trimester season of 2006. Any 
quota transferred to a region would be divided among the three 
trimester seasons based upon historical landings for each season, as 
described below under trimester quota alternatives.

[[Page 56026]]

    NMFS considered several other alternatives for regional quota 
distribution and adjustment, including: (A1) maintaining the current 
regional quota distribution (status quo); (A2) establishing new quotas 
based on updated landings information without an annual framework 
adjustment mechanism; (A4) establishing a single quota for LCS and SCS; 
(A5) maintaining regional quotas for LCS but a single quota for SCS; 
and (A6) combining the quotas for the Gulf of Mexico and South Atlantic 
regions. NMFS selected alternative A3 as its preferred alternative 
because it would revise quotas using updated landings information and 
provide managers with the ability to adjust future quotas based on a 
number of factors, including, but not limited to: the current fishing 
year's landings, the amount of available quota remaining, the size of a 
region's quota, and the ability of vessels in all regions to harvest 
their remaining quota. Alternative A3 would also provide NMFS with the 
ability to update regional quotas to reflect changes in fishing effort 
and landings on an annual basis.
    The other options considered may have negative economic impacts on 
participants if there is not flexibility to address over- or 
underharvests, if any, of regional quotas. One of the alternatives 
would establish a single quota for LCS and SCS and eliminate the 
existing regional quotas. While a single quota system would simplify 
management and monitoring of the fishery, regional quotas provide a 
better means of ensuring that historical catches are maintained, 
accounting for regional differences in fishing effort, and providing 
flexibility to reduce mortality on juveniles and reproductive female 
sharks.

Trimester Quota Alternatives

    NMFS also considered alternatives for dividing regional quotas 
among the trimester seasons, which are scheduled to take effect in 
January 2005. Amendment 1 to the HMS FMP implemented trimester seasons 
to provide flexibility to adjust the shark seasons to account for 
differences in the timing of shark pupping among regions, and to 
improve the market by allowing for the fishing seasons to be spread 
throughout the year. In the December 2003 final rule (69 FR 74746), 
implementing Amendment 1 to the HMS FMP, NMFS anticipated splitting the 
quotas equally among trimester seasons. After further analysis, NMFS 
had determined that this could lead to unharvested quotas (e.g., LCS 
quota for the first 2004 semi-annual season in the North Atlantic) and 
corresponding overharvested quotas in other seasons. Thus, NMFS 
considered three alternatives for dividing trimester season quotas, 
including: (B1) equal quotas for each trimester season regardless of 
historical landings (i.e., 33 percent of quota/trimester season); (B2) 
dividing quotas in proportion to the historical landings during each 
trimester season; and (B3) dividing quotas in proportion to the 
historical landings for each trimester season and reviewing landings 
annually to make adjustments as necessary.
    In order to adapt to the change from semi-annual to trimester 
seasons beginning in 2005, NMFS is proposing that quotas be divided 
among the three seasons based on updated historical landings (1999-
2003) within each region, and that trimester season quotas be reviewed 
and updated as necessary (alternative B3). NMFS would make adjustments 
to trimester season quotas based on a number of factors including, but 
not limited to: the historic landings for each trimester season in a 
particular region, total landings reported for all seasons at the end 
of their respective seasons, the number of storms during each open 
season, the size of each seasonal quota, the amount of available quota 
remaining, and the projected ability of vessels fishing in the season 
receiving additional quota to harvest the additional quota.
    Landings data across all regions indicate that there are temporal 
variations in catches with highest catches currently occurring in 
January and July. Fewer sharks have been caught during the third 
trimester season because the fishery has historically been closed 
during that period. NMFS anticipates that the change from semi-annual 
to trimester seasons in 2005 will result in additional landings during 
the third trimester over time and that it may take time for effort and 
landings to stabilize. Maintaining an even distribution of quotas 
across trimester seasons (alternative B1) could result in consistent 
over- and underharvests as fishing effort has not historically been 
evenly distributed throughout the year due to shark migration patterns 
and geographic location of fishermen. Alternative B2 would divide 
quotas in proportion to historic landings during each trimester season, 
but would not provide a mechanism for making necessary adjustments as 
would preferred alternative B3.

Transition from Semi-Annual to Trimester Seasons

    NMFS also considered alternatives to account for any over- or 
underharvests during the transition from two semi-annual seasons in 
2004 to three trimester seasons in 2005. The first semi-annual season 
(January-June) partially overlaps with the first two trimesters 
(January-April and May-August) and the second semi-annual season (July-
December) partially overlaps with the second and third trimester 
seasons (May-August and September-December), respectively. The 
alternatives considered would only apply to the transition year: 2005. 
Any over- or underharvest in subsequent years would be applied to the 
same trimester season of the following year, in the region in which it 
occurred, per the current regulations at 50 CFR 635.27(b)(1)(vi).
    Alternatives considered for the transition include: (C1) dividing 
any over- or underharvests from the 2004 semi-annual seasons equally 
among the 2005 trimester seasons; (C2) carrying over any over- or 
underharvest from the first semi-annual season to the first trimester 
season, and any over- or underharvest from the second semi-annual 
season to the second trimester season; (C3) transferring over- or 
underharvests from the first semi-annual season to the first trimester 
season and dividing any over- or underharvest from the second semi-
annual season equally between the second and third trimester seasons; 
and (C4) dividing over- or underharvests from the first semi-annual 
season equally between the first and second trimester season and 
dividing any over- or underharvest from the second semi-annual season 
equally between the second and third trimester seasons.
    NMFS prefers alternative C3 because it would account for over- and 
underharvests in a manner that is most consistent with the historical 
landings in semi-annual seasons. For example, the opening of the first 
semi-annual season corresponds to the first trimester season, thus, 
this alternative would keep accounting of over- and underharvests 
consistent between the two years' seasons. This alternative also 
accounts for the overlap between the second semi-annual season and the 
second and third trimester seasons.
    NMFS believes the preferred alternative would have no adverse 
impact on targeted species and minimal ecological impact on protected 
species because the number of interactions during the third trimester 
season has historically been low. Economically, it would provide the 
greatest benefit to those fishermen who will not have an opportunity to 
fish for sharks during the mid-Atlantic closure from January 1 through 
July 31, 2005. Any under- or

[[Page 56027]]

overharvests from the 2004 second semi-annual would be divided equally 
between the second and third trimester seasons, and fishermen in the 
South Atlantic region would thus have an opportunity to harvest a 
potentially larger quota during the third trimester season compared to 
the other alternatives.
    Alternative C1 is not preferred because it does not account for the 
overlap between seasons, and does not account for differences in effort 
and landings among the three seasons. Alternative C2 does not account 
for the third trimester season, and would keep quotas for the third 
trimester season low, resulting in reduced revenues and temporal 
shortages of shark products, particularly for fishermen in the South 
Atlantic region who are already impacted by the mid-Atlantic closure 
area. Alternative C4 may reduce the quota for the second trimester 
season unnecessarily because overharvests from the first and second 
semi-annual seasons would both be subtracted from the second trimester 
season. This could result in additional negative economic impacts on 
the South Atlantic region which is already impacted by the mid-Atlantic 
closure.

Notification of the Length of Fishing Seasons and Annual Adjustments

    Currently, pursuant to 50 CFR 635.27(b)(1)(iii) and (vi), NMFS 
files a notification of a shark fishing season's length and annual 
adjustments at least 30 days prior to the start of the season. This 
requirement was originally intended to address the need to provide 
shark fishermen with ample advance notice to prepare for the upcoming 
season. Given Amendment 1 to the HMS FMP and recent and proposed 
changes to shark management, NMFS proposes to remove the 30-day 
notification provisions and, as necessary and appropriate, issue 
proposed and final rules for season lengths and quotas to facilitate 
more opportunity for public comment. Prior to the beginning of the 
season, NMFS will file with the Office of the Federal Register for 
publication the length of each season and any annual adjustments.

Proposed Available Quotas

    Per Amendment 1 to the HMS FMP, the 2005 annual landings quotas for 
LCS and SCS are established at 1,017 mt dw (2,242,078 lbs dw) for LCS 
and 454 mt dw (1,000,888.4 lbs dw) for SCS. The 2005 quota levels for 
pelagic, blue, and porbeagle sharks are established at 488 mt dw 
(1,075,844.8 lbs dw), 273 mt dw (601,855.8 lbs dw), and 92 mt dw 
(202,823.2 lbs dw), respectively. This rule does not change any of 
these quotas.
    An emergency rule that published on December 27, 2002 (67 FR 78990; 
extended May 29, 2003, 68 FR 31983), implemented a new management 
measure from the 1999 HMS FMP that required dead discards from 2003 be 
subtracted from the commercial shark quotas in 2005. This emergency 
rule expired on December 27, 2003. In November 2003, NMFS released 
Amendment 1 to the HMS FMP; the final rule implementing this Amendment 
was published on December 24, 2003 (68 FR 74746). Amendment 1 to the 
HMS FMP also dealt with the issue of dead discards and devised a 
process for subtracting them when calculating maximum sustainable yield 
(MSY), in conjunction with establishing a timeframe for rebuilding 
stocks of LCS by 2030, while still allowing fishing by enacting other 
conservation measures including reducing quotas, time/area closures, 
and gear restrictions. Dead discards are already accounted for under 
the new process for determining MSY, thus if NMFS were to count the 
2003 dead discards against the 2005 quota as stated in the December 27, 
2002 rule (69 FR 78990), NMFS would be improperly recording dead 
discards against the quota twice, once prior to formulating this year's 
quota, and once after the quota had been formulated. Quotas were 
already reduced under Amendment 1 and further reductions could cause 
negative economic impacts with negligible effects on the rebuilding 
plan. Therefore, NMFS does not believe it is appropriate to count the 
2003 dead discards against the 2005 commercial fishing quotas as stated 
in the 2002 emergency rule.
    The first 2004 semiannual fishing season quota for LCS was set at 
443.1 mt dw (December 24, 2003, 68 FR 74746 and June 9, 2004, 69 FR 
33321). This equated to 244.7, 190.3, and 18.12 mt dw for the South 
Atlantic, Gulf of Mexico, and North Atlantic regions, respectively. As 
of July 2004, approximately 486.9 mt dw LCS had been reported landed 
from all regions.
    Consistent with this proposed rule, the annual LCS quota (1,017 mt 
dw) would be split among the regions as follows: 49 percent to the Gulf 
of Mexico, 38 percent to the South Atlantic, and 13 percent to the 
North Atlantic. Any over- or underharvest in a given region for the 
first 2004 season would result in an equivalent increase or decrease in 
that region's quotas for the first 2005 trimester season.
    Also consistent with this proposed rule, the quota for each region 
would be further split among the three fishing seasons according to 
historical catches during that season, and adjusted for over- or 
underharvests from the 2004 first season. The percentages for the 
first, second, and third trimester seasons for each region would be as 
follows: 47, 44, and 9 percent to the Gulf of Mexico, respectively; 63, 
28, and 9 percent to the South Atlantic, respectively; and 34, 58, and 
8 percent to the North Atlantic, respectively. In 2004, preliminary 
data indicate that the Gulf of Mexico had an overharvest of 39.7 mt dw, 
the South Atlantic had an overharvest of 11.1 mt dw, and the North 
Atlantic had an underharvest of 7.0 mt dw. Thus, the LCS quotas for the 
2005 first trimester season would be as follows: the Gulf of Mexico - 
194.5 mt dw (428,795 lbs dw); South Atlantic - 232.4 mt dw (512,349 lbs 
dw); and North Atlantic - 52.0 mt dw (114,639 lbs dw).
    In the 2004 first semiannual fishing season for SCS, the quota was 
established at 280.9 mt dw (December 24, 2003, 68 FR 74746). This 
equated to 233.15, 36.5, and 11.23 mt dw for the South Atlantic, North 
Atlantic, and the Gulf of Mexico regions, respectively. As of July 
2004, approximately 86.3 mt dw had been reported landed from all 
regions. This constitutes an underharvest for the first 2004 semiannual 
fishing season of 194.6 mt dw from all regions.
    Consistent with this proposed rule, the annual SCS quota (454 mt 
dw) would be split among the regions as follows: 10 percent to the Gulf 
of Mexico, 87 percent to the South Atlantic, and 3 percent to the North 
Atlantic. Any over- or underharvest in a given region for the first 
2004 season would result in an equivalent increase or decrease in that 
region's quotas for the first 2005 trimester season.
    Also consistent with this proposed rule, the quota for each region 
would be further split among the three fishing seasons according to 
historical catches during that season in each of the regions. The 
percentages for the first, second, and third trimester seasons for each 
region would be as follows: 59, 29, and 12 percent to the Gulf of 
Mexico, respectively; 20, 53, and 27 percent to the South Atlantic, 
respectively; and 6, 17, and 77 percent to the North Atlantic, 
respectively. In 2004, preliminary data indicate that the Gulf of 
Mexico had an overharvest of 2.4 mt dw, the South Atlantic had an 
underharvest of 161.0 mt dw, and the North Atlantic had an underharvest 
of 36.1 mt dw. Thus, the SCS quotas for the 2005 first trimester season 
are proposed as follows: the Gulf of Mexico - 24.4 mt dw (53,351 lbs 
dw); South Atlantic - 240.0 mt dw (529,104

[[Page 56028]]

lbs dw); and North Atlantic - 37.0 mt dw (81,570 lbs dw).
    The 2005 annual quotas for pelagic, blue, and porbeagle sharks 
would be established at 488 mt dw (1,075,844.8 lbs dw), 273 mt dw 
(601,855.8 lbs dw), and 92 mt dw (202,823.2 lbs dw), respectively. 
These are the same quotas that were established in the HMS FMP. As of 
July 2004, approximately 44 mt dw had been reported landed in the first 
2004 semiannual fishing season in total for pelagic, blue, and 
porbeagle sharks combined. Thus, the pelagic shark quota does not need 
to be reduced consistent with the current regulations 50 CFR 
635.27(b)(1)(iv). Thus, the 2005 first trimester quotas for pelagic, 
blue, and porbeagle sharks would be established at 162.6 mt dw 
(358,688.4 lbs dw), 91 mt dw (200,618.6 lbs dw), and 30.7 mt dw 
(67,681.2 lbs dw), respectively.
    These proposed quotas may change depending on the final decision 
regarding the regional quotas split, the trimester transition, and any 
updates to the reported landings in first 2004 semi-annual season.

Proposed Fishing Season Notification

    The first trimester fishing season of the 2005 fishing year for 
LCS, SCS, pelagic sharks, blue sharks, and porbeagle sharks in all 
regions in the northwestern Atlantic Ocean, including the Gulf of 
Mexico and the Caribbean Sea, is proposed to open on January 1, 2005. 
To estimate the LCS fishery closure dates, NMFS calculated the average 
reported catch rates for each region from the second seasons from 
recent years (2001-2004) 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.
    Pursuant to 50 CFR 635.5(b)(1), shark dealers must report any 
sharks received twice a month. More specifically, 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 proposes to 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 Gulf of 
Mexico region, approximately 84 percent of the proposed available LCS 
quota would likely be taken by the second week of March and 98 percent 
of the available LCS quota would likely be taken by the end of March. 
Dealer data also indicate that, on average, approximately 27 mt dw 
(59,524 lb dw) of LCS have been reported received by dealers after a 
Federal closure. This is approximately 14 percent of the proposed 
available quota. Thus, if catch rates in 2005 are similar to the 
average catch rates from 2001 to 2004, 99 percent (85 + 14 percent) of 
the proposed quota could be caught by the second week of March. If the 
fishery remains open until the end of March, the proposed quota would 
likely be exceeded (98 + 14 percent = 112 percent). Accordingly, NMFS 
is proposing to close the Gulf of Mexico LCS fishery on March 15, 2005, 
at 11:30 p.m. local time.
    Based on average LCS catch rates in recent years in the South 
Atlantic region, approximately 97 percent of the proposed available LCS 
quota would likely be taken by the second week of February and 114 
percent of the proposed available LCS quota would likely be taken by 
the end of February. Dealer data also indicate that, on average, 
approximately 55 mt dw (121,253 lb dw) of LCS have been reported 
received by dealers after a Federal closure. This is approximately 24 
percent of the proposed available quota. Thus, if catch rates in 2005 
are similar to the average catch rates from 2001 to 2004, 121 percent 
(97 + 24 percent) of the quota could be caught by the second week of 
February. If the fishery remains open until the end of February, the 
quota would likely be exceeded by 138 percent (114 + 24 percent). Since 
the Mid-Atlantic closed area will be in effect from January 1 through 
July 31, 2005, landings will likely not be accumulating at the same 
rate as they have in the past. For example, during the first 2004 shark 
fishing season, North Carolina accounted for 29 percent (68 mt dw) of 
landings in the South Atlantic region. Taking into account that a large 
portion of North Carolina will be closed during the first trimester 
season of 2005, NMFS does not believe that the quota will be exceeded 
by the February 15 closure date. Thus, NMFS is proposing to close the 
South Atlantic LCS fishery on February 15, 2005, at 11:30 p.m. local 
time.
    Based on average LCS catch rates in recent years in the North 
Atlantic region, approximately 7 percent of the available proposed LCS 
quota would likely be taken by the end of April. Dealer data also 
indicate that, on average, approximately 10 mt dw (22,046 lb dw) of LCS 
have been reported received by dealers after a Federal closure. This is 
approximately 20 percent of the proposed available quota. Thus, if 
catch rates in 2005 are similar to the average catch rates from 2001 to 
2004, 27 percent (7 + 20 percent) of the proposed quota could be caught 
by the end of April. Accordingly, NMFS is proposing to close the North 
Atlantic LCS fishery on April 30, 2005, at 11:30 p.m. local time.

Request for Comments

    NMFS will hold three public hearings (see DATES and ADDRESSES) to 
receive comments from fishery participants and other members of the 
public regarding these proposed alternatives. These hearings will be 
physically accessible to people with disabilities. Requests for sign 
language interpretation or other auxiliary aids should be directed to 
Chris Rilling at (301) 713-2347 at least 5 days prior to the hearing 
date. For individuals unable to attend a hearing, NMFS also solicits 
written comments on this proposed rule (see DATES and ADDRESSES).

Classification

    This proposed rule is published under the authority of the 
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.
    As required under the Regulatory Flexibility Act, NMFS has prepared 
an Initial Regulatory Flexibility Analysis (IRFA) for this rule. The 
IRFA analyzes the anticipated economic impacts of these preferred 
actions and any significant alternatives to the proposed rule that 
could minimize economic impacts on small entities. A summary of the 
IRFA is below. The full IRFA and analysis of economic and ecological 
impacts, are available from NMFS (see ADDRESSES). NMFS does not believe 
that the proposed regulations would conflict with current relevant 
regulations, Federal or otherwise (5 U.S.C. 603(b)(5)).
    This proposed rulemaking is being initiated to update the LCS and 
SCS regional and trimester quotas based on updated landings information 
and implement a framework for annual adjustment of quotas based on 
over- or underharvests, to address the transfer of over- and 
underharvests between semi-annual (2004) and trimester (2005) seasons, 
and to modify the fishing season notification requirement. This rule 
could directly impact commercial shark fishermen and dealers on the 
Atlantic Ocean in the United States. NMFS estimates that as of April 
2004, there were approximately 253 directed and 358 incidental permit 
holders, of which 199 (32 percent) reported landings in 2003. As of 
September 2003,

[[Page 56029]]

there were 267 commercial shark dealers. All permit holders are 
considered small entities according to the Small Business 
Administration's standard for defining a small entity (5 U.S.C. 
603(b)(3)). Other small entities involved in HMS fisheries such as 
processors, bait houses, and gear manufacturers might be indirectly 
affected by the proposed regulations.
    Average annual gross revenues from sharks for commercial shark 
fishermen in 2003 was $31,085.60 and $1,946.18 for directed and 
incidental permit holders, respectively. Average ex-vessel prices were 
$0.79 and $0.53/lb dw for LCS and SCS flesh, respectively and shark 
fins averaged $19.86/lb dw. Preliminary cost-earning data obtained in 
2003 indicated that fishermen, on average, spend approximately 
$1,765.49, $570.97, and $398.65 for fuel, bait, and ice, respectively, 
per trip.
    An analysis of the economic impacts of the proposed rulemaking on 
active incidental and directed shark permit holders was conducted as 
part of the IRFA. The preferred alternative to modify the regional 
quotas based on updated landings information would increase the 
existing regional quotas, and therefore potential landings, by 6 
percent for the Gulf of Mexico and 4 percent for South Atlantic for 
SCS, respectively and would decrease the SCS regional quota by 10 
percent for the North Atlantic. Based on landings and revenue 
information obtained from the appropriate 2003 logbooks, these 
potential increases in landings may result in a similar increases to 
gross revenue, however, NMFS is unable to predict future ex-vessel 
prices for shark products. For LCS, regional quotas and potential 
landings would be increased by 7 percent for the North Atlantic and 9 
percent for the Gulf of Mexico, respectively while reducing the South 
Atlantic quota by 16 percent.
    The preferred measures outlined in this proposed rule were selected 
for the commercial Atlantic LCS and SCS fisheries because they minimize 
economic, ecological, and social impacts incurred on fishermen while, 
consistent with the Magnuson-Stevens Act and other domestic laws, 
enhancing equity among user groups, and allowing stocks to be managed 
at sustainable levels. Other alternatives analyzed herein for regional 
and trimester quota distribution were not preferred because they fail 
to base quotas on updated landings information or fail to provide a 
means of annually revising quotas to adjust for over- or underharvests, 
if any, to minimize economic hardships that may result due to fishery 
closures or an inability to harvest the full quota for LCS and SCS. 
Other alternatives for the transfer of over- and underharvests between 
semi-annual (2004) and trimester (2005) seasons were not selected 
because they would reduce quotas for the third trimester season 
resulting in reduced revenues and temporal shortages of shark products, 
particularly for fishermen in the South Atlantic region who are already 
impacted by the Mid-Atlantic closure area. The alternative to remove 
the 30-day requirement to publish a fishing season's length or quotas/
annual adjustments is not expected to result in negative economic 
impacts, as it provides for more public input.
    One of the requirements of an IRFA is to describe any alternatives 
to the proposed rule which accomplish the stated objectives and which 
minimize any significant economic impacts (5 U.S.C. 603(c)). 
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4)) 
lists four categories for alternatives that should be discussed. These 
categories are: (1) establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (2) clarification, consolidation, or 
simplification of compliance and reporting requirements under the rule 
for such small entities; (3) use of performance rather than design 
standards; and (4) exemptions from coverage of the rule for small 
entities.
    As noted earlier, NMFS considers all permit holders to be small 
entities and in order to meet the objectives of this proposed rule and 
the Magnuson-Stevens Act, NMFS cannot change the requirements only for 
small entities. Additionally, all of the proposed measures in this rule 
would not be effective with exemptions for small entities. Thus, there 
are no alternatives available to satisfy the stipulations of the first 
and fourth categories listed above. NMFS is proposing these measures to 
modify regional and trimester quotas based on updated landings 
information and as such, the use of performance rather than design 
standards and the simplification of compliance and reporting 
requirements under this proposed rule are not practicable. Alternatives 
relevant to the second category are identified in the preamble and 
further discussed below.
    The preferred measures for updating regional and trimester quotas 
were selected because the other proposed alternatives do not allow NMFS 
to update the quotas based on the most up-to-date landings data 
available while installing a provision for the annual adjustment of 
these quotas to better adapt to future changes in regional fishing 
effort. Furthermore, although they may consolidate, clarify, and/or 
simplify compliance, other alternatives considered that do not maintain 
regional and trimester quotas could result in regional inequality as 
fishermen in the North Atlantic would be at a disadvantage due to their 
geographic location and these alternatives may also have negative 
impacts on shark pupping, both of which would conflict with National 
Standards (NSs) of the Magnuson-Stevens Act by inhibiting or 
discriminating against fishermen in a given state or region and 
delaying the rebuilding plan for LCS (NS 4 and NS 1). Maintaining the 
regional and trimester quotas also promote market stability by ensuring 
the availability of shark products year round and in all locales.
    There was little difference in economic impact between the 
different alternatives considered. Other proposed alternatives for the 
transition between semi-annual and trimester season are not expected to 
have adverse economic or ecological impacts, however, the preferred 
alternative was selected because it provides equitable distribution of 
quotas based on historic fishing practices. NMFS does not know of any 
performance or design standards that would satisfy the aforementioned 
objectives of this rulemaking while, concurrently, upholding the 
Magnuson-Stevens Act. This proposed rule does not contain any new 
reporting or recordkeeping requirements. This proposed rule would not 
increase the administrative burden or professional skills required of 
permit holders to maintain compliance with commercial shark 
regulations.
    The biological opinion prepared in October 2003, entitled 
``Biological Opinion on the continued operation of Atlantic shark 
fisheries under the Fishery Management Plan for Atlantic Tunas, 
Swordfish, and Sharks (HMS FMP)'', in response to the proposed measures 
in Amendment 1 to the HMS FMP, found that the continued existence of 
commercial shark fishery would not jeopardize marine mammals, sea 
turtles, or smalltooth sawfish. Regional quota administration and 
trimester seasons were actions finalized in Amendment 1 to the HMS FMP 
and therefore, were included in the aforementioned BiOp. This proposed 
rule will not increase overall quotas or landings for LCS or SCS, 
therefore interactions with, or incidental takes of, protected species 
should not increase. The preferred alternatives simply re-distribute 
quotas based on updated landings information, distribute them

[[Page 56030]]

across trimester seasons based on historical landings, and transfer 
over- or under harvests from semi-annual to trimester seasons.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has determined preliminarily that these regulations would be 
implemented in a manner consistent to the maximum extent practicable 
with the enforceable policies of those coastal states on the Atlantic 
including the Gulf of Mexico and Caribbean that have approved coastal 
zone management programs. Letters have been sent to the relevant states 
asking for their concurrence.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: September 13, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 635 is 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    1. The authority citation for 50 CFR part 635 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In Sec.  635.27, paragraphs (b)(1)(i), (b)(1)(iii), (b)(1)(iv), 
and (b)(1)(vi)(A) and (B) are revised to read as follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (i) Fishing seasons. The commercial quotas for large coastal 
sharks, small coastal sharks, and pelagic sharks will be split among 
three fishing seasons: January 1 through April 30, May 1 through August 
31, and September 1 through December 31.
    (ii) * * *
    (iii) Large coastal sharks. The annual commercial quota for large 
coastal sharks is 1,017 mt dw, unless adjusted pursuant to paragraph 
(b)(1)(vi) of this section. This annual quota is split among the 
regions as follows: 49 percent to the Gulf of Mexico, 38 percent to the 
South Atlantic, and 13 percent to the North Atlantic. The length of 
each fishing season will be determined based on the projected catch 
rates, available quota, and other relevant factors. Prior to the 
beginning of the season, NMFS will file with the Office of the Federal 
Register for publication, consistent with the Administrative Procedure 
Act, the length of each season.
    (iv) Small coastal sharks. The annual commercial quota for small 
coastal sharks is 454 mt dw, unless adjusted pursuant to paragraph 
(b)(1)(vi) of this section. This annual quota is split among the 
regions as follows: 10 percent to the Gulf of Mexico, 87 percent to the 
South Atlantic, and 3 percent to the North Atlantic.
    (v) * * *
    (vi) Annual adjustments. (A) NMFS will adjust the next year's 
fishing season quotas for large coastal, small coastal, and pelagic 
sharks to reflect actual landings during any fishing season in any 
particular region. For example, a commercial quota underharvest or 
overharvest in the fishing season in one region that begins January 1 
will result in an equivalent increase or decrease in the following 
year's quota for that region for the fishing season that begins January 
1.
    (1) NMFS will adjust a region's quota based on the following 
criteria: if a region has an overharvest of 10 percent or greater of 
its regional quota, and any other region or regions has an underharvest 
of more than 10 percent of their respective quotas, then NMFS may 
transfer up to 10 percent of the quota from the region or regions with 
the underharvest to the region with the overharvest. Any overharvest 
above that 10 percent would be counted against that region's quota for 
the same season of the following year. If the underharvest is less than 
10 percent of the quota for any other region or regions, NMFS would not 
transfer any quota, even if another region or regions had an 
overharvest in excess of 10 percent.
    (2) Other factors NMFS would consider before making a transfer 
include, but are not limited to, the likelihood of protected species 
interactions and bycatch rates within a region, historic landings for 
the region, total landings reported for all regions at the end of their 
respective seasons, the number of storms during the open season, the 
size of a region's quotas, the amount of available quota remaining, the 
projected ability of the vessels fishing in the region from which the 
quota is proposed to be removed to harvest the remaining quota, and the 
projected ability of vessels fishing in the region receiving the quota 
to harvest the additional quota.
    (3) Quotas for each region would be further divided among the 
trimester seasons based upon historic landings in each of the seasons. 
NMFS would make adjustments to trimester season quotas based on a 
number of factors including, but not limited to: the historic landings 
for each trimester season in a particular region, total landings 
reported for all seasons at the end of their respective seasons, the 
number of storms during each open season, the size of each seasonal 
quota, the amount of available quota remaining, and the projected 
ability of vessels fishing in the season receiving additional quota to 
harvest the additional quota. Prior to the beginning of the season, 
NMFS will file with the Office of the Federal Register for publication, 
consistent with the Administrative Procedure Act, any annual 
adjustment.
    (B) NMFS will reduce the annual commercial quota for pelagic sharks 
by the amount that the blue shark quota is exceeded prior to the start 
of the next fishing season.
    (C) * * *
* * * * *
[FR Doc. 04-21002 Filed 9-14-04; 2:52 pm]
BILLING CODE 3510-22-S