[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Rules and Regulations]
[Pages 69537-69545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26414]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 040910261-4325-02; I.D. 072704A]
RIN 0648-AS08


Atlantic Highly Migratory Species; Atlantic Commercial Shark 
Management Measures

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

ACTION: Final rule; fishing season notification.

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SUMMARY: This final rule adjusts the regional quotas and establishes 
new trimester season quotas for large coastal sharks (LCS) and small 
coastal sharks (SCS) based on updated landings information. This final 
rule includes a framework mechanism for the annual adjustment of 
quotas, a method of accounting for over- or underharvests in the 
transition from semi-annual to trimester seasons, and a new process for 
notifying participants of season opening and closing dates and quotas. 
This final rule also announces the opening and closing dates for the 
LCS fishery based on adjustments 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: This final rule is effective on January 1, 2005. The Atlantic 
commercial shark fishing season opening and closure dates are provided 
in Table 1 under SUPPLEMENTARY INFORMATION. The 2005 second and third 
trimester season dates will be published at a later date in the Federal 
Register.

ADDRESSES: For copies of the Final Environmental Assessment/Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) 
contact Chris Rilling, Highly Migratory Species Management Division at 
1315 East-West Highway, Silver Spring, MD 20910 or at (301) 713-1917 
(fax). Copies 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:

Opening and Closure Dates

    The Atlantic commercial shark fishing season opening and closure 
dates are provided in the following table:

[[Page 69538]]



                                       Table 1 - Opening and Closure Dates
----------------------------------------------------------------------------------------------------------------
                                                                   First Trimester Season     First Trimester
           Species Group                        Region                  Opening Dates       Season Closure Dates
----------------------------------------------------------------------------------------------------------------
Large Coastal Sharks...............               Gulf of Mexico   January 1 - February    February 15, - April
                                                                    28, 2005, 11:30 p.m.    30, 2005, 11:30 pm
                                                                    local time.             local time
                                                  South Atlantic   January 1 - February    February 28, - April
                                                                    15, 2005, 11:30 p.m.    30, 2005, 11:30 pm
                                                                    local time.             local time
                                                  North Atlantic   January 1 - April 30,   April 30, 2005, 11:30
                                                                    2005, 11:30 p.m.        pm local time
                                                                    local time.
Small Coastal Sharks...............               Gulf of Mexico   January 1 - April 30,   April 30, 2005, 11:30
                                                                    2005, 11:30 p.m.        pm local time
                                                                    local time.
                                                  South Atlantic   ......................  April 30, 2005, 11:30
                                                                                            pm local time
                                                  North Atlantic   ......................  April 30, 2005, 11:30
                                                                                            pm local time
Blue sharks........................           No regional quotas   January 1 - April 30,   April 30, 2005, 11:30
                                                                    2005, 11:30 p.m.        pm local time
                                                                    local time.
Porbeagle sharks...................           No regional quotas   ......................  April 30, 2005, 11:30
                                                                                            pm local time
Pelagic sharks other than blue or             No regional quotas   ......................  April 30, 2005, 11:30
 porbeagle.                                                                                 pm local time
----------------------------------------------------------------------------------------------------------------

Background

    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.
    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 2004 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.
    On September 17, 2004, NMFS published a proposed rule (69 FR 56024) 
to: update the regional quotas that were established in Amendment 1, 
implement new trimester season quotas, and account for over- or 
underharvests in the transition from semi-annual to trimester seasons. 
The proposed rule also considered a framework mechanism to adjust 
regional quotas on an annual basis, as necessary. NMFS held three 
public hearings during the public comment period, which closed on 
October 18, 2004, for both the proposed rule and the Draft EA.
    Recent updates to the regional landings data and new data collected 
since the publication of the December 24, 2003, final rule (68 FR 
74746) indicate that the regional quotas need to be adjusted. The 
preamble of the September 17, 2004 proposed rule (69 FR 56024) contains 
the alternatives that were considered and is not repeated here.
    Additionally, beginning on January 1, 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 final rule divides each region's 
quota among the three trimester seasons, and accounts for over- or 
underharvests in the transition from semi-annual to trimester seasons.

Response to Comments

    Comments on the September 17, 2004, proposed rule (69 FR 56024) 
received during the public comment period are summarized below and are 
organized according to the alternatives considered in the proposed 
rule, together with NMFS' responses.

Regional Quota Adjustment

    Comment 1: NMFS should make as few changes as possible until it has 
a better handle on the data.
    Response: NMFS has updated landings information that represents the 
best information available and indicates that updates to the regional 
quotas are warranted. The updated information is based on several 
different databases that were analyzed for shark landings as part of 
this rulemaking, including: the canvass, quota monitoring, Northeast 
Commercial Fisheries database system (CFDBS), and snapper grouper 
logbook databases. NMFS believes that by considering a cross-section of 
different databases the reliability of the data is enhanced and any 
potential errors will be minimized and mitigated to the extent 
possible.
    Comment 2: The North Atlantic region landings outlined in the Draft 
EA do not appear to be accurate.
    Response: NMFS agrees that the landings data referred to by the 
commenter on page 21 of the Draft EA were incorrect. This discrepancy 
resulted from the inclusion of North Carolina landings in the North 
Atlantic region. The North Carolina landings should have been included 
in the South Atlantic region. This error has been corrected in the 
final EA and the final rule. As a result of this correction, the 
percentages for the Gulf of Mexico and South Atlantic increased by 3 
percent, and the North Atlantic decreased by 3 percent.
    Comment 3: NMFS should select the single LCS and single SCS quota 
(Alternative A4) as the preferred alternative because the current 
accounting method (of regional landings) is not accurate.
    Response: While selecting a single quota for LCS and SCS may 
simplify management, it does not account for regional differences in 
shark availability, current and historic landings, or timing of 
seasons. For example, the potential exists for the entire quota to be 
harvested in the South Atlantic and Gulf of Mexico during the first 
trimester season before the North Atlantic has had an opportunity to 
fish. Regional quotas help address these differences in shark 
availability and timing of seasons. NMFS believes that regional quotas 
provide a more equitable means of allocating quota and

[[Page 69539]]

ensure that each region is given the opportunity to harvest a quota 
that reflects historic landings in the region.
    Comment 4: The effort shift to the Gulf of Mexico happened because 
of the ridgeback/non-ridgeback switch in 2003. Everyone was allowed to 
fish for blacktip sharks until May 15, but there are no blacktip sharks 
in North Carolina. Thus, the South Atlantic season has been unfairly 
shortened.
    Response: While it is true that the ridgeback/non-ridgeback 
categories provided a larger quota for blacktip sharks (non-ridgeback) 
when compared with sandbar sharks (ridgeback) - which resulted in a 
longer season for ridgebacks in 2003 - the season lengths were longer 
in all regions, not just the Gulf of Mexico. Higher landings of 
blacktip sharks may have occurred in the Gulf of Mexico in 2003 as a 
result, however, NMFS analyzed several years of data in establishing 
regional quotas (1999-2003) to account for interannual variability and 
minimize the overall impact of landings in a single year. The shift in 
effort from the South Atlantic to the Gulf of Mexico has taken place 
over a number of years as a result of a number of factors including 
closures of the Florida East Coast to pelagic longline gear and the 
Oculina Banks. Therefore, NMFS does not believe that the season for the 
South Atlantic region is being unfairly shortened.
    Comment 5: NMFS should explain why the regional quotas are so 
different from what they were in Amendment 1.
    Response: Regional quotas in this final rule and Environmental 
Assessment are different from Amendment 1 to the HMS FMP because of 
errors in the data that have been corrected since Amendment 1 as well 
as the consideration of two additional years of landings data (from 
2002-2003) which were included in the analysis. These data indicate an 
increase in landings in the Gulf of Mexico over the past several years 
and a leveling off or decrease in landings in the South Atlantic, 
depending on which database is analyzed. Since NMFS took the average of 
three databases that were available for the Southeast, the result was a 
net decrease in quota for the South Atlantic. This shift in effort is 
evident in landings data from years prior to the establishment of 
regional quotas in Amendment 1, in which the fishery was operating 
under a single quota for LCS and SCS. Thus, it is not likely that 
regional quotas were the causative factor in the shift in landings. The 
current regional quotas provide the best estimate of historic and 
current landings and fishing effort in the various regions.
    Comment 6: NMFS is doing the right thing by developing a quota 
distribution scheme that will preclude one region from receiving an 
inequitable share of the overall quota.
    Response: NMFS believes that the framework mechanism for adjusting 
regional quotas will cap the amount of quota that may be transferred 
from one region to another in any given year. This should prevent a 
drastic shift in quota from one region to another.

Trimester Season Allocations

    Comment 7: NMFS should select the equal distribution of trimester 
season quotas for each region (Alternative B1) as the preferred 
alternative because it represents the fairest distribution of quota and 
would have the least impact on fishermen impacted by the mid-Atlantic 
closure.
    Response: NMFS agrees that the equal distribution of trimester 
season quotas may be appropriate from some regions such as the Gulf of 
Mexico and the South Atlantic where harvest rates remain fairly stable 
throughout the year. However, the quotas should be allocated according 
to historic landings in the North Atlantic region. The North Atlantic 
region has historically harvested less than 20 percent of its annual 
landings during the first semi-annual season because sharks have not 
yet migrated into the region.
    Comment 8: The current trimester season preferred alternative only 
allows approximately 16 trips in the South Atlantic during the third 
trimester season. NMFS should consider transferring the portion of the 
quota that would have been caught by North Carolina fishermen in the 
time/area closure during the first trimester season to the second and 
third trimester seasons.
    Response: The final preferred alternative will divide the Gulf of 
Mexico and the South Atlantic trimester season quotas equally. See 
response to comment 7 above. As a result, the second and third 
trimester season quotas in the South Atlantic will be higher than they 
were in the proposed rule and should result in greater than 16 trips 
per season.
    Comment 9: The North Atlantic region should not have any quota 
during the first trimester season. Its quota should be allocated to 
second and third trimester seasons when sharks are available.
    Response: NMFS agrees that the North Atlantic trimester season 
quotas should be allocated according to historic landings in the 
region. A majority of the overall LCS quota for the North Atlantic will 
thus be available during the second and third trimester seasons. Some 
LCS quota will be available for the first trimester season to account 
for nominal landings that have occurred during this period.
    Comment 10: The way the seasons are set up now will result in 
catches of juvenile sharks. The summer season is when adults are 
caught; spring and fall are when juveniles and spawning females are 
caught. Dusky sharks are rarely caught in the summer. There should be 
no fishing in May or June for any participants in the fishery because 
this is the prime shark pupping season.
    Response: The shark pupping season occurs from March through 
September in the Atlantic Ocean and Gulf of Mexico with a possible peak 
from May through June. The LCS fishery has usually been closed for at 
least some of the time during these peak pupping months. In order to 
reduce the likelihood of interactions with juvenile and reproductive 
female sharks, NMFS is considering a delay to the start of the second 
trimester season. A proposed start date for the second trimester season 
will be filed with the Office of the Federal Register for publication 
in early 2005.

Accounting for Over- or Underharvest in the Transition from Semi-Annual 
to Trimester Seasons

    Comment 11: NMFS should select Alternative C4 to divide any over- 
or underharvest from the first semi-annual season between the first and 
second trimester seasons, and any over- or underharvest from the second 
semi-annual season to the second and third trimester seasons. This 
would give North Carolina fishermen a better chance at catching some of 
the quota since portions of North Carolina will be closed from January 
1 to July 30 due to the time/area closure.
    Response: NMFS received several comments in support of this 
alternative and agrees that this would be an appropriate method of 
accounting for over- or underharvest in the transition from semi-annual 
to trimester seasons. Thus, NMFS has selected it as the final preferred 
alternative in this final rule.
    General
    Comment 12: All shark catching and killing should be banned.
    Response: NMFS does not believe that banning all shark fishing is 
warranted for the following reasons: a number of businesses, including 
fishermen, processors, suppliers, and dealers could be forced out of 
business and a number of communities, including recreational fishing 
communities, would be adversely affected. In addition, the current 
rebuilding plans that are in

[[Page 69540]]

place ensure a sustainable fishery and viability of Atlantic shark 
populations, as well as the requirements of the Magnuson-Stevens Act 
and other domestic laws.
    Comment 13: A number of commenters suggested that NMFS should 
consider starting the second trimester season on either July 6, 2005, 
at the earliest, or on August 1 to help market balance and ease the 
economic hardship on fishermen in North Carolina who will be impacted 
by the time/area closure.
    Response: NMFS is aware of concerns that starting the shark fishing 
season just prior to the Fourth of July weekend is not conducive to the 
sale and marketing of shark product. Consequently, NMFS will consider 
alternative start dates in a proposed rule regarding the second 
trimester season lengths and quotas in early 2005.
    Comment 14: NMFS should set aside adequate incidental quota to 
reduce/eliminate regulatory discards by covering the inevitable 
incidental catches in many other fisheries.
    Response: The 2002 LCS stock assessment took into account discards 
from target and non-target fisheries in determining maximum sustainable 
yield estimates upon which the quotas are based. However, setting aside 
an incidental quota to reduce or eliminate regulatory discards would 
further reduce the already low LCS commercial quota. This reduction of 
quota could impose additional economic hardships. NMFS may consider, 
consistent with the Magnuson-Stevens Act, an incidental quota as the 
stock rebuilds and the fishery stabilizes.
    Comment 15: The current proposal for regional and trimester quotas 
eliminates what little remained of the shark fishery off North 
Carolina. How is this proposal consistent with National Standard 4?
    Response: The final preferred alternatives of distributing quotas 
in proportion to historic landings, allocating trimester season quotas 
equally, and dividing over- or underharvests from the first semi-annual 
season of 2004 to the first and second trimester seasons of 2005 are 
consistent with National Standard 4 (NS4). As described in Amendment 1 
to the HMS FMP, the establishment of regional quotas is not a direct 
allocation of fishing privileges nor does it discriminate between shark 
fishermen in different regions or states. The regional quota 
allocations are based on average historical landings and are intended 
to enhance equity. Even if the establishment of regional quotas might 
be considered an allocation, the regional quota system is consistent 
with NS4. It is fair and equitable because it is based on historical 
landings, and NMFS will be able to monitor how quotas are used and 
adjust them over time to promote achievement of optimum yield. With 
regard to North Carolina, NMFS believes that allocating 42 percent of 
the total LCS quota, and 88 percent of the total SCS quota to the South 
Atlantic region, and dividing the quota equally between the three 
trimester seasons will help minimize economic impacts to fishermen 
impacted by the time/area closure.
    Comment 16: NMFS should maintain the semi-annual quotas that treat 
all states equally without changes to the quota allocation due to 
regulatory induced shifts in landings.
    Response: The ecological and economic impacts of converting to 
trimester seasons were thoroughly analyzed in Amendment 1 to the HMS 
FMP. The proposed rule and this final rule do not propose reverting 
back to semi-annual seasons. NMFS believes that regional quotas, which 
are based on historic landings data, provide an equitable means of 
distributing quota.
    Comment 17: NMFS should put pressure on states that are not in line 
with Federal shark laws.
    Response: NMFS agrees and has been working with states to improve 
state-Federal consistency in how shark fisheries are managed.
    Comment 18: Why is the Gulf of Mexico region opened longer than the 
South Atlantic, and will this not result in an overharvest again?
    Response: The 2005 first trimester season in the South Atlantic 
region closes on February 15, 2005, and the Gulf of Mexico closes on 
March 15, 2005. To estimate closure dates, NMFS calculated the average 
reported catch rates for each region from the first semi-annual season 
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. Catch rates in the South Atlantic are higher than catch rates in 
the Gulf of Mexico, particularly during the months of January and 
February. Additionally, the South Atlantic quotas are lower than in the 
Gulf of Mexico. As a result, the South Atlantic season is shorter than 
the Gulf of Mexico season. NMFS has been using this type of method for 
calculating season length since 1999. Since that time, the number of 
overharvests has been reduced. However, if the quota is exceeded the 
overharvest will be deducted from the following year's quota for the 
same fishing season and region.
    Comment 19: Were pelagic longline logbook data included in the 
analysis of regional quotas?
    Response: Pelagic longline logbook data were not included in the 
analysis because landings in that logbook are reported in numbers of 
fish, rather than fish weights as in the coastal fisheries logbook and 
the other databases used in the analysis. Additionally, although LCS 
are occasionally caught in the pelagic longline fishery, a majority of 
the LCS and SCS landings are reported in the coastal fisheries logbook. 
Furthermore, dealer data from the canvass, QMS, and Northeast CFDBS 
would also capture landings attributable to the pelagic longline 
fishery.

Changes From the Proposed Rule

    NMFS has made several changes to the September 17, 2004 proposed 
rule (69 FR 56024). These changes are outline below.
    1. In the proposed rule, NMFS proposed to allocate 49, 38, and 13 
percent of the overall LCS quota to the Gulf of Mexico, South Atlantic, 
and North Atlantic, respectively. Due to an error in calculating 
regional landings, NMFS corrects the regional quotas for LCS in the 
Gulf of Mexico, South Atlantic and North Atlantic to 52, 41, and 7 
percent of the overall LCS landings quota for each of the regions 
respectively. The error was attributed to including North Carolina 
landings in the North Atlantic region rather than in the South Atlantic 
region.
    2. In the proposed rule, NMFS considered several alternatives for 
trimester season quota allocations, including allocating quotas 
according to historical landings as the preferred alternative. During 
the public comment period, NMFS heard comments in favor of splitting 
quotas evenly between the three trimester seasons in the Gulf of Mexico 
and the South Atlantic and setting quotas according to historic 
landings for the North Atlantic region. This allocation was proposed 
because sharks are available throughout much of the year in the Gulf of 
Mexico and South Atlantic regions, whereas the shark harvesting period 
occurs primarily during the summer months in the North Atlantic region. 
Additionally, concerns were raised about allocating a large portion of 
the South Atlantic quota to the first trimester season when the time/
area closure off North Carolina will be in effect. This could have had 
a negative economic impact on fishermen in North Carolina. By dividing 
the

[[Page 69541]]

quotas equally between the three trimester seasons a greater proportion 
of the quota will be available during August and September when the 
time/area closure is no longer in effect. As a result, the final rule 
will divide the quotas for the Gulf of Mexico and South Atlantic 
equally between the trimester seasons. The North Atlantic quota will be 
divided according to historical landings, with more of the quota being 
allocated to the summer months.
    3. In the proposed rule, NMFS considered several alternatives to 
account for over- or underharvests in the transition from semiannual to 
trimester seasons. During the public comment period, NMFS heard 
comments in favor of dividing any over- or underharvests from the first 
semiannual season equally between the first and second trimester 
seasons, and any over- or underharvests from the second semiannual 
season equally between the second and third trimester seasons. As a 
result, in this final rule, NMFS will divide any over- or underharvests 
according to this method.

Annual Landings Quota

    The base 2005 annual landings quotas for LCS and SCS will be 1,017 
mt dw (2,242,078 lb dw) and 454 mt dw (1,000,888.4 lb dw), 
respectively. The 2005 quota levels for pelagic, blue, and porbeagle 
sharks are 488 mt dw (1,075,844.8 lb dw), 273 mt dw (601,855.8 lb dw), 
and 92 mt dw (202,823.2 lb dw), respectively.
    As of October 2004, the overall first 2004 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. As described below, the 
regional quotas will be adjusted based on these over- or underharvests.

Regional Landings Quotas

    The first 2004 semiannual fishing season quota for LCS was 
established at 443.1 mt dw (December 24, 2003, 68 FR 74746). A June 15, 
2004, final rule (69 FR 33321) adjusted the North Atlantic regional 
quota from a 50/50 to a 20/80 split between the first and second semi-
annual seasons resulting in an adjusted quota of 8.0 mt dw for the 
first semiannual season in the North Atlantic. Applying the regional 
percentages established in Amendment 1 this equated to 244.7, 190.3, 
and 8.0 mt dw for the South Atlantic, Gulf of Mexico, and North 
Atlantic regions, respectively. As of October 2004, approximately 486.9 
mt dw LCS had been reported landed from all regions.
    Consistent with this final rule, the annual LCS quota (1,017 mt dw) 
is split among the regions as follows: 52 percent to the Gulf of 
Mexico, 41 percent to the South Atlantic, and 7 percent to the North 
Atlantic.
    Also consistent with this final rule, the LCS quota for the Gulf of 
Mexico and the South Atlantic is further split equally (33.3 percent/
season) between the three trimester seasons. The quota for the North 
Atlantic will be 4, 88, and 8 percent, for the first, second, and third 
trimester seasons, respectively.
    In the 2004 first semi-annual season, 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. Consistent with this final rule, the 
over- or underharvests will be divided equally between the first and 
second trimester seasons. Thus, the LCS quotas for the 2005 first 
trimester season is established as follows: the Gulf of Mexico - 156.3 
mt dw (1,017*.52*.333-39.7/2)(344,579 lb dw); South Atlantic - 133.3 mt 
dw (1,017*.41*.333-11.1/2)(293,873 lb dw); and North Atlantic - 6.3 mt 
dw (1,017*.07*.04+7/2)(13,889 lb 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 233.2, 36.5, and 11.2 mt dw for the South Atlantic, North 
Atlantic, and the Gulf of Mexico regions, respectively. As of October 
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 final rule, the annual SCS quota (454 mt dw) 
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.
    Also consistent with this final rule, the SCS quota for the Gulf of 
Mexico and the South Atlantic is further split equally (33.3 percent/
season) between the three trimester seasons. The quota for the North 
Atlantic will be 1, 9, and 90 percent, for the first, second, and third 
trimester seasons, respectively, based on historical landings.
    In the 2004 first semi-annual season, 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. Consistent with this final rule, the 
over- or underharvests will be divided equally between the first and 
second trimester seasons.
    Thus, the SCS quotas for the 2005 first trimester season are as 
follows: the Gulf of Mexico - 13.9 mt dw (454*.10*.333-2.4/2) (30,644 
lb dw); South Atlantic 213.5 mt dw (454*.88*.333+161/2)(470,682 lb dw); 
and North Atlantic - 18.6 mt dw (454*.02*.06+36.1/2)(41,056 lb dw).
    The 2005 annual quota levels for pelagic, blue, and porbeagle 
sharks are established at 488 mt dw (1,075,844.8 lb dw), 273 mt dw 
(601,855.8 lb dw), and 92 mt dw (202,823.2 lb dw), respectively. These 
are the same quotas that were established in the HMS FMP. As of October 
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 under 50 CFR 
635.27(b)(1)(iv). The 2005 first trimester quotas for pelagic, blue, 
and porbeagle sharks are established at 162.7 mt dw (358,688 lb dw), 91 
mt dw (200,619 lb dw), and 30.7 mt dw (67,681 lb dw), respectively.

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, will open on January 1, 2005. To estimate 
the LCS fishery closure dates, NMFS calculated the average reported 
catch rates for each region from the first semi-annual 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 date and 
the beginning of the second trimester season (May 1, 2005) 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

[[Page 69542]]

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 92 percent of the available LCS quota 
(156.3 mt dw) would likely be taken by the end of February and 109 
percent of the available LCS quota would likely be taken by the second 
week of March. Dealer data also indicate that, on average, 
approximately 9.8 mt dw (21,605 lb dw) of LCS have been reported 
received by dealers after a Federal closure. This is approximately 6 
percent of the available quota. Thus, if catch rates in 2005 are 
similar to the average catch rates from 2001 to 2004, 98 percent (92 + 
6 percent) of the quota could be caught by the end of February. If the 
fishery remains open until the second week of March, the quota would 
likely be exceeded (109 + 6 percent = 115 percent). Accordingly, the 
Gulf of Mexico LCS fishery will close on February 28, 2005, at 11:30 
p.m. local time.
    Based on average LCS catch rates in recent years in the South 
Atlantic region, and accounting for the reduction in effort due to the 
time/area closure off North Carolina, approximately 69 percent of the 
available LCS quota (133.3 mt dw) would likely be taken by the second 
week of February and 86 percent of the available LCS quota would likely 
be taken by the end of February. Dealer data also indicate that, on 
average, approximately 35 mt dw (77,161 lb dw) of LCS have been 
reported received by dealers after a Federal closure. This is 
approximately 27 percent of the available quota. Thus, if catch rates 
in 2005 are similar to the average catch rates from 2001 to 2004, 96 
percent (69 + 27 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 (86 + 27 percent = 113 
percent). Thus, the South Atlantic LCS fishery will close 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 60 percent of the available LCS quota 
(6.3 mt dw) would likely be taken by the end of April. Dealer data also 
indicate that no LCS landings have been reported received by dealers 
after a Federal closure and before the start of the second trimester 
season on May 1, 2005. Accordingly, the North Atlantic LCS fishery will 
close on April 30, 2005, at 11:30 p.m. local time.

Classification

    This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    As required under the Regulatory Flexibility Act, NMFS prepared an 
Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule 
(69 FR 56024, September 17, 2004) and prepared a Final Regulatory 
Flexibility Analysis (FRFA) for the final rule. The FRFA examines the 
anticipated economic impacts of the preferred actions and any 
significant alternatives to the final rule that could minimize economic 
impacts on small entities. A summary of the information presented in 
the FRFA is below. The full FRFA 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 final rule is being implemented to update the LCS and SCS 
regional quotas based on updated landings information and to implement 
a framework mechanism for annual adjustment of quotas. This final rule 
also allocates trimester season quotas, addresses the one-time transfer 
of over- or underharvests from semi-annual (2004) to trimester (2005) 
seasons, and modifies the fishing season notification requirement.
    The need for and objective of the final rule are fully described in 
the preamble of the proposed rule (69 FR 56024, September 17, 2004) and 
in the final EA/RIR/FRFA and are not repeated in this rule.
    As set forth above, NMFS received several comments on the proposed 
rule and draft EA during the comment period. NMFS did not receive any 
comments specific to the IRFA, but did receive a limited number of 
comments on the potential impact of regional quotas, trimester season 
quota allocations, and transferring over- or underharvest from 
semiannual to trimester seasons. In summary, commenters noted that 
regional quotas would result in a reduction in quota for the South 
Atlantic that, coupled with allocating regional quotas to trimester 
seasons based on historical landings, could have negative economic 
impacts on fishermen affected by the time/area closure off North 
Carolina.
    The IRFA for the proposed rule acknowledged that there could be 
negative economic impacts as a result of lowering quotas for the South 
Atlantic, but noted that the quotas were based upon updated landings 
that indicate a shift in fishing effort in recent years from the South 
Atlantic to the Gulf of Mexico. In order to mitigate some of the 
impacts described in the comments, NMFS will divide the regional quotas 
for the South Atlantic and the Gulf of Mexico equally between the three 
trimester seasons, rather than dividing them according to historic 
landings, which would have resulted in the largest quota during the 
first trimester season when the time/area closure off North Carolina is 
in effect. Dividing the quotas equally between the trimester seasons 
will result in a higher quota for the second and third trimester 
seasons for the South Atlantic region. Given that NMFS is considering a 
delay to the start date of the second trimester season, a larger 
portion of the South Atlantic quota may be available to fishermen off 
North Carolina during the second and third trimester seasons when the 
time/area closure will no longer be in effect. In addition, NMFS will 
transfer over- or underharvests from the 2004 first semi-annual season 
to the 2005 first and second trimester seasons, rather than to the 
first trimester season only, to further mitigate the impact of 
overharvests that occurred during the 2004 first semiannual season.
    This rule could directly impact commercial shark fishermen and 
dealers in the Atlantic, Gulf of Mexico, and Caribbean. 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, 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 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, spent approximately 
$1,765.49, $570.97, and $398.65 for fuel, bait, and ice, respectively, 
per trip.

[[Page 69543]]

    An analysis of the economic impacts on the active directed and 
incidental shark permit holders was conducted as part of the FRFA. The 
preferred alternative to modify the regional LCS and SCS quotas based 
on updated landings information will increase the existing LCS regional 
quotas, and therefore potential landings, by 3 percent for the North 
Atlantic and 10 percent for the Gulf of Mexico, while reducing the 
South Atlantic quota by 13 percent. For SCS, the regional quotas will 
be increased by 6 percent for the Gulf of Mexico and 4 percent for the 
South Atlantic, and will be decreased by 10 percent for the North 
Atlantic. Based on landings and revenue information obtained from the 
2003 logbooks, these potential increases or decreases in landings may 
result in similar increases or decreases to gross revenue, however, 
NMFS is unable to predict future ex-vessel prices for shark products.
    The preferred measures outlined in this final 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 
on a sustainable basis. Other alternatives such as maintaining current 
regional quotas, establishing new regional quotas without an adjustment 
mechanism, establishing single quotas for LCS and SCS, or combining 
quotas in the Gulf of Mexico and South Atlantic regions were not 
preferred because they fail to base quotas on updated landings 
information or fail to provide a means of revising quotas on an annual 
basis, as necessary, to adjust for shifts in fishing effort and over- 
or underharvests. They also fail to minimize economic hardships that 
may result due to fishery closures or an inability to harvest the full 
quota for LCS and SCS. Furthermore, although several of the 
alternatives considered establishing a single quota that would have 
simplified management, this could have also resulted in regional 
inequality in shark landings. For example, fishermen in the North 
Atlantic would be at a disadvantage due to their geographic location 
and harvest periods that occur later in the year than in the Gulf of 
Mexico and South Atlantic regions. Maintaining the regional and 
trimester quotas promotes market stability by ensuring the availability 
of shark products year round and in all locales, and ensures a harvest 
in each region.
    The alternative to remove the 30-day requirement to publish a 
fishing season's length and quotas will be replaced with a proposed and 
final rule process. This will provide greater opportunity for public 
comment, and is not expected to result in negative economic impacts.
    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 final rule and the 
Magnuson-Stevens Act, NMFS cannot change the requirements only for 
small entities. Additionally, all of the measures in this final 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 final rule are not practicable.
    This final rule does not contain any new reporting or recordkeeping 
requirements. This final rule would not increase the administrative 
burden or professional skills required of permit holders to maintain 
compliance with commercial shark regulations.
    Overall economic impacts of adjusting the regional quotas are 
expected to be minimal. Economic data from LCS revenues generated in 
2003 indicate that the final adjustments to the regional quotas would 
result in an increase in gross revenues to the Gulf of Mexico (+3.5 
percent; $62,503) and North Atlantic (+.01 percent; $3,083) regions, 
and a decrease in gross revenues to the South Atlantic (-2.6 percent; 
$60,006) 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 2003 for LCS).
    The other alternatives considered may have negative economic 
impacts on fishery participants because they are not based on the best 
information available and do not provide the necessary flexibility to 
address changes in regional fishing effort and over- or underharvests. 
NMFS received comments in support of establishing a single quota for 
LCS or SCS and eliminating the existing regional quotas. While a single 
quota system would simplify management and monitoring of the fishery, 
regional quotas provide a more effective means of ensuring that 
historical catches and equitable distribution of quotas are maintained, 
accounting for regional differences in fishing effort, and providing 
flexibility to reduce mortality on juveniles and reproductive female 
sharks.
    The final preferred alternatives for trimester season quota 
allocations and accounting for over- or underharvests in the transition 
from semi-annual to trimester seasons are not expected to have adverse 
economic impacts. The final preferred alternative for allocating 
trimester season quotas equally in the Gulf of Mexico and South 
Atlantic regions, and according to historical landing in the North 
Atlantic was selected because it provides equitable distribution of 
quotas based on the requirements of each of the regions. The final 
preferred alternative of dividing any over- or underharvests from the 
first semiannual season equally between the first and second trimester 
seasons will help minimize any economic impacts to the South Atlantic 
and should have little or no impact on the Gulf of Mexico or the North 
Atlantic.
    Economically, the final alternatives provide the greatest benefit 
to those fishermen who will not have an opportunity to fish for sharks 
during the mid-Atlantic closure from January through July 2005. By 
dividing regional quotas equally among the trimester seasons, and 
dividing over- or underharvests from the 2004 first semi-annual season 
equally between the 2005 first and second trimester seasons, fishermen 
in the South Atlantic region will have an opportunity to harvest a 
potentially larger quota during the second and third trimester seasons 
compared to the other alternatives.
    This final rule contains no new collection-of-information 
requirements subject to review and approval by the

[[Page 69544]]

Office of Management and Budget (OMB) under the Paperwork Reduction Act 
(PRA). Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to, a penalty 
for failure to comply with a collection of information subject to the 
requirements of the PRA unless that collection of information displays 
a currently valid OMB control number.
    The Biological Opinion (BiOp) prepared in October 2003, pursuant to 
the Endangered Species Act, 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 quotas and trimester seasons 
were actions finalized in Amendment 1 to the HMS FMP and therefore, 
were included in the BiOp. This final 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 equally across trimester seasons, 
and transfer over- or under harvests from semi-annual to trimester 
seasons.
    NMFS believes the preferred alternatives would have no adverse 
impact on targeted species for reasons described above, and minimal 
ecological impact on protected species because the number of 
interactions during the second and third trimester seasons has 
historically been low when compared to the first trimester season. For 
example, a majority (30 out of 55) of the observed sea turtle 
interactions from 1999-2004 occurred during January and February. Sea 
turtle interactions during the second and third trimester seasons are 
much lower (16 out of 55). Since the measures implemented in this final 
rule will reduce effort during the first trimester season, impacts on 
sea turtles should be minimal.
    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 advance notice to prepare for the upcoming season. 
Given Amendment 1 to the HMS FMP and recent 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 quota adjustments.
    NMFS determined that this rule will be implemented in a manner that 
is consistent, to the maximum extent practicable, with the enforceable 
policies of the approved coastal zone management (CZM) programs of 
coastal states in the Atlantic, Gulf of Mexico, and Caribbean. NMFS 
asked for states' concurrence with this determination during the 
proposed rule stage. Seven states replied affirmatively regarding the 
consistency determination, and NMFS presumes that the states that have 
not yet responded concur with the determination. One state, North 
Carolina, replied that allocating quotas according to historic 
landings, was not consistent with the State's CZM program. North 
Carolina commented that since the time/area closure will be in effect 
from January through July, dividing the quota according to historical 
landings would result in ``frontloading'' or allocation of a large 
portion of the South Atlantic's quota to the first trimester season 
when fishermen off of North Carolina will be unable to fish. North 
Carolina felt that dividing the quota equally among the three trimester 
seasons would allocate a larger proportion of the quota to the second 
and third trimester seasons than would have been the case using 
historic landings, and that this would mitigate the economic impact on 
the South Atlantic region and North Carolina fishermen in particular. 
In the proposed rule, NMFS considered several alternatives for 
trimester season quota allocations, including allocating quotas 
according to historical landings as the preferred alternative. During 
the public comment period, NMFS heard comments in favor of splitting 
quotas evenly between the three trimester seasons in the Gulf of Mexico 
and the South Atlantic but according to historic landings for the North 
Atlantic region because of fishing opportunities that occur later in 
the year. As a result, the final rule will divide the Gulf of Mexico 
and South Atlantic trimester season quotas equally. The North Atlantic 
quota will be divided according to historical landings. Therefore, NMFS 
finds that these final regulations are consistent with all applicable 
approved coastal zone management programs to the maximum extent 
practicable.

List of Subjects in 50 CFR Part 635

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

    Dated: November 23, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Services.

0
For the reasons set out in the preamble, 50 CFR part 635 is amended as 
follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for 50 CFR part 635 continues to read as 
follows:

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

0
2. In Sec.  635.27, 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.
* * * * *
    (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: 52 percent to the Gulf of Mexico, 41 percent to the 
South Atlantic, and 7 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. Consistent with the 
Administrative Procedure Act, NMFS will publish in the Federal 
Register, prior to the beginning of the season, any annual adjustments.
    (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.
* * * * *
    (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

[[Page 69545]]

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 annual quota based on the following 
criteria: if a region has an overharvest of 10 percent or greater of 
its regional annual 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 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 equally (33.3 
percent/season) among the trimester seasons in the Gulf of Mexico and 
the South Atlantic regions, and based upon historic landings of 4, 88, 
and 8 percent for the first, second, and third trimester seasons, 
respectively, in the North Atlantic region. 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.
    (4) Consistent with the Administrative Procedure Act, NMFS will 
publish in the Federal Register, prior to the beginning of the season, 
any annual adjustments.
    (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.
* * * * *
[FR Doc. 04-26414 Filed 11-24-04; 2:33 pm]
BILLING CODE 3510-22-S