[Federal Register Volume 72, Number 80 (Thursday, April 26, 2007)]
[Rules and Regulations]
[Pages 20765-20773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8029]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 070302052-7088-02; I.D. 021307B]
RIN 0648-AV09


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.

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SUMMARY: This final rule establishes the 2007 second and third 
trimester seasons commercial quotas for large coastal sharks (LCS), 
small coastal sharks (SCS), and pelagic sharks based on over- or 
underharvests from the 2006 second and third trimester seasons. In 
addition, this rule finalizes the opening and closing dates for the LCS 
commercial fishery based on adjustments to the trimester quotas. The 
final rule also opens the existing mid-Atlantic shark closed area for 
two weeks at the end of July.

DATES: This rule is effective May 1, 2007. The Atlantic commercial 
shark fishing season opening and closing dates and quotas for the 2007 
second and third trimester seasons are provided in Table 1 under 
SUPPLEMENTARY INFORMATION.

ADDRESSES: For copies of the Final Environmental Assessment/Regulatory 
Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA), 
please write to Highly Migratory Species Management Division, 1315 
East-West Highway, Silver Spring, MD 20910, or at (301) 713-1917 (fax). 
Copies are also available from the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: LeAnn Southward Hogan or Karyl 
Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic shark fishery is managed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Reauthorization 
Act

[[Page 20766]]

(Magnuson-Stevens Reauthorization Act). NMFS recently finalized a 
Consolidated Highly Migratory Species (HMS) Fishery Management Plan 
(FMP), (October 2, 2006; 71 FR 58058), that consolidated and replaced 
previous FMPs for Atlantic Billfish and Atlantic Tunas, Swordfish, and 
Sharks. The Consolidated HMS FMP is implemented by regulations at 50 
CFR part 635. Currently, the Atlantic shark annual quotas, with the 
exception of pelagic sharks, are split among three regions based on 
historic landings. Consistent with 50 CFR 635.27(b)(1)(iii) and (iv), 
the annual LCS quota (1,017 mt dw) is split among the three regions as 
follows: 52 percent to the Gulf of Mexico, 41 percent to the South 
Atlantic, and 7 percent to the North Atlantic. The annual SCS quota 
(454 mt dw) is split among the three regions as follows: 10 percent to 
the Gulf of Mexico, 87 percent to the South Atlantic, and 3 percent to 
the North Atlantic. The regional quotas for LCS and SCS are divided 
equally between the trimester seasons in the South Atlantic and the 
Gulf of Mexico, and according to historical landings in the North 
Atlantic.
    Consistent with 50 CFR 635.27(b)(1)(vi), any over- or underharvest 
in a given region from the 2006 second and third trimester seasons will 
be carried over to the 2007 second and third trimester seasons in that 
region.
    On March 8, 2007 (72 FR 10480), NMFS published a proposed rule that 
examined the regional quotas and proposed season lengths for the 2007 
second and third trimester seasons for LCS, SCS, and pelagic sharks 
managed under the Consolidated HMS FMP. NMFS analyzed three LCS and 
four SCS alternatives for adjusting regional trimester quotas and other 
management measures based on the over- and underharvests that occurred 
in the LCS and SCS fisheries in the South Atlantic and Gulf of Mexico 
regions during the 2006 second and third trimester seasons. Information 
regarding these alternatives was provided in the preamble of the 
proposed rule and is not repeated here.

Response to Comments

    Comments on the proposed rule are summarized below, together with 
NMFS' reponses.
    Comment 1: NMFS received several comments in support of the LCS no 
action alternative, alternative 1, to open the LCS season on July 6. 
Commenters preferred a July 6 opening in the South Atlantic region 
because an August 1 opening would conflict with the spiny lobster 
fishery opening. Specifically these commenters felt that a July opening 
would avoid gear conflicts with spiny lobster traps and would allow 
spiny lobster fishermen to fish for sharks even if it was a two-week 
season. NMFS also received several comments in support of merging the 
2007 second and third trimesters in the South Atlantic and Gulf of 
Mexico region. Finally, NMFS received a comment stating that the LCS 
2007 second and third trimesters should remain closed and that the 
available quota be carried forward to the 2008 first trimester.
    Response: Based on comments received, NMFS will implement the 
preferred alternatives for LCS in the South Atlantic and the Gulf of 
Mexico regions, alternatives 2 and 3, which would merge the 2007 second 
and third trimester seasons. However, due to comments received 
regarding concerns over the August 1st opening date in the South 
Atlantic region, NMFS has recalculated the opening and closing dates 
and will modify the opening date of the LCS merged trimester in the 
South Atlantic region to July 15, 2007. Based on average catch rates in 
July, the available quota for the merged season will likely be taken in 
just over four weeks; therefore the merged season in the South Atlantic 
region will close on August 15, 2007. Because of historically high 
catch rates in July if the merged season was to open on July 6, as in 
the past, the 163.7 mt dw of available quota would likely be taken in 3 
weeks. Therefore, in order to allow for a longer merged season, NMFS 
modified the opening from August 1 to July 15. The commenters who 
suggested keeping the 2007 second and third seasons closed were 
concerned that the first season in 2008 will be closed due to the large 
overharvest in the first season of 2006. While the combined quota from 
the 2007 merged second and third seasons would eliminate the 
overharvest from the first season in 2006, keeping this combined season 
closed would have negative socioeconomic impacts to fishermen who fish 
during this time period. The trimester seasons were implemented in 
Amendment 1 to the 1999 FMP for Atlantic Tunas, Swordfish and Sharks to 
assist with managing seasonal fisheries, pupping seasons, and bycatch 
concerns. The trimester seasons also provide more open seasons spread 
across the calendar year.
    Comment 2: NMFS received comments in opposition to the SCS 
preferred alternative, alternative 7, to reallocate the base quota 
percentages in the South Atlantic and Gulf of Mexico regions and to 
transfer a portion of the South Atlantic region's underharvest to cover 
the Gulf of Mexico region's overharvest. Opposition stemmed in part 
from fears that the South Atlantic region's quota would be permanently 
transferred to the Gulf of Mexico region. The commenters were also 
concerned about the possible misidentification of SCS being caught in 
the Gulf of Mexico region. NMFS also received a comment in support of 
the reallocation of the SCS base quota percentages since the Gulf of 
Mexico region's allocation of quota has been insufficient in the past.
    Response: The current regional percent allocations of SCS were 
established in 2003 under Amendment 1 to the Atlantic Tunas, Swordfish, 
and Sharks FMP, and were amended in 2004 based on additional landings 
data from 2002 and 2003. Alternative 7 would modify the percent 
allocations to more evenly distribute the SCS quota among the Gulf of 
Mexico and South Atlantic regions, as recent landings in the Gulf of 
Mexico region indicate a change in the fishery and an increase in 
landings in this region. Landings information received from dealer 
reports during the 2006 second and third seasons indicate that the SCS 
species caught in the Gulf of Mexico region are about fifty percent 
blacknose and twenty-five percent finetooth sharks. In the South 
Atlantic region, dealer reports indicated that the SCS species caught 
are over seventy percent sharpnose sharks. Over the last three years, 
33 percent of all SCS landed have been landed in the Gulf of Mexico. 
The South Atlantic region has not fully utilized its SCS quota and has 
accumulated large underharvests that are greater in total than the 
entire annual quota for all the regions. The new baseline quota 
allocations are similar to the landings in both regions reported during 
2006. Redistributing the SCS more equally should help prevent future 
quota overharvests and fishery closures in the Gulf of Mexico region, 
which in turn should reduce potential future economic and social costs 
associated with unexpected closures. The commercial shark fishing 
industry in the South Atlantic region may perceive the reallocation of 
quota percentages as both a social and economic burden. However, 
alternative 7 would not require a reduction in fishing effort or 
landings of SCS in the South Atlantic region relative to current 
fishing levels. Additionally, sufficient quota would still be available 
to the South Atlantic region to provide for future limited fishery 
expansion. The adjusted South Atlantic regional quota for the second 
and third seasons are 291.6 mt dw and 297.5 mt dw, which is 64.2 
percent and 65.5 percent of the

[[Page 20767]]

total annual quota for SCS, respectively. NMFS is currently undertaking 
a SCS stock assessment that is scheduled to be completed in the fall of 
2007. Future SCS management decisions will be based, in large part, on 
the results of this stock assessment.
    Comment 3: NMFS received a comment stating that sharks are 
overfished and quotas should be cut fifty percent this year and ten 
percent each year thereafter. NMFS also received a comment in support 
of managing porbeagle sharks under the Convention on International 
Trade of Endangered Species of Wild Fauna and Flora (CITES).
    Response: The purpose of this rulemaking is to adjust quotas based 
on over- and underharvests from the previous year, not to reanalyze the 
overall management measures for sharks, which is being done in 
amendment 2 to the Consolidated HMS FMP. Based on the results of the 
2005 Canadian porbeagle shark stock assessment, the 2006 dusky shark 
stock assessment, and the 2005/2006 LCS stock assessment, NMFS has 
determined that a number of shark stocks and/or species are overfished 
and an amendment to the Consolidated HMS FMP is needed to implement 
management measures to rebuild overfished stocks and prevent 
overfishing consistent with the mandates of the Magnuson-Stevens Act. 
On November 7, 2006, NMFS published a Notice of Intent, (71 FR 65086), 
to amend the Consolidated HMS FMP and recently presented a predraft to 
the Advisory Panel for comments. The purpose of the amendment is to 
enact management measures that will rebuild sandbar, dusky, and 
porbeagle shark populations; provide an opportunity for the sustainable 
harvest of blacktip sharks, particularly in the Gulf of Mexico where 
the stock has been declared rebuilt; and to end and/or prevent 
overfishing of Atlantic sharks. NMFS will be reexamining quotas and 
other management measures in that amendment. With regard to CITES, 
Germany, on behalf of the European Union has proposed listing the 
porbeagle shark under Appendix II of CITES. The United States is 
considering this and other CITES proposals. These proposals will be 
addressed at the CITES fourteenth meeting of the Conference of Parties 
held in The Hague, June 13-15, 2007.
    Comment 4: NMFS received several comments concerning the accuracy 
of regional landings and reporting information and concern regarding 
the misidentification of species.
    Response: The current dealer reporting regulations at 50 CFR 
635.5(b)(1)(ii) state that reports of Atlantic sharks received by 
dealers from U.S. vessels on the first through the 15th of each month 
must be postmarked no later than the 25th of that month. Reports of 
sharks received on the 16th through the last day of each month must be 
postmarked not later than the 10th of the following month. NMFS has 
forwarded information about potential violations to NOAA Fisheries 
Office of Law Enforcement, and is reviewing internal processes to 
improve compliance with reporting requirements. Additionally, the 
upcoming shark amendment also includes measures to improve reporting. 
In order to minimize shark identification problems in the regions, in 
the Consolidated HMS FMP, NMFS implemented mandatory Atlantic shark 
identification workshops required for all federally permitted Atlantic 
shark dealers. These workshops are currently being held monthly 
throughout the South Atlantic and Gulf of Mexico regions and should 
help shark misidentification problems and lead to more accurate 
regional species reporting. NMFS relies on fishermen and dealers for 
accurate and timely reporting, and incomplete or non-submitted data 
make it difficult for the Agency to effectively monitor quotas and 
establish future seasons based on these landings.
    Comment 5: NMFS received several comments stating that managing 
sharks in three different regions is not working, and that management 
of sharks in one region would be more effective. Conversely, NMFS 
received a comment stating that North Carolina should be removed from 
the South Atlantic region and that there should be a Mid-Atlantic 
quota, and that NMFS should get more regionally specific about what is 
being caught where and when.
    Response: This rule does not address the trimester seasons or shark 
fishing regions that were established in Amendment 1 to the 1999 FMP 
for Atlantic Tunas, Swordfish and Sharks and the subsequent rulemaking 
(November 30, 2004, 69 FR 69537). The trimester seasons were 
implemented to provide fishermen with more fishing opportunities later 
in the year (September through December) when they were traditionally 
not allowed to fish under the semi-annual seasons, and to protect large 
pregnant female sharks and their pups from excessive fishing pressure. 
The regional quota allocations were designed to provide each region its 
own quota based on historical landings, providing the ability to manage 
commercial shark fishing with greater resolution. Under the current 
regime, regions that did not experience an overharvest are not 
penalized by quota reductions for overharvests that may occur in 
another region. In the amendment to the Consolidated HMS FMP that is 
currently underway, NMFS may consider changes to existing regional 
definitions and quota allocations for the regions. NMFS will consider 
this and other comments received during scoping at that time.
    Comment 6: NMFS received a comment stating that blacktip sharks 
should be removed from the LCS complex and managed separately. NMFS 
also received a comment supporting an endorsement for the gillnet 
fishery.
    Response: As described above, the purpose of this rulemaking is to 
adjust quotas based on over- and underharvests from the previous year, 
not to reanalyze the overall management measures for sharks. The 
purpose of the shark amendment to the Consolidated HMS FMP is to enact 
management measures that will rebuild sandbar, dusky, and porbeagle 
shark populations; provide an opportunity for the sustainable harvest 
of blacktip sharks, particularly in the Gulf of Mexico region where the 
stock is rebuilt; and to end and/or prevent overfishing of Atlantic 
sharks. The removal of blacktip sharks from the LCS complex and an 
endorsement for the gillnet fishery are both alternatives that may be 
considered in the amendment to the Consolidated HMS FMP.
    Comment 7: NMFS received a comment stating that the Agency should 
fully analyze the cumulative socio-economic impacts to fishermen.
    Response: NMFS realizes that most participants in HMS fisheries 
also depend on non-HMS species fisheries. For example, bottom longline 
participants also target reeffish, snapper/grouper, and golden tilefish 
either on the same trip or at different times of the year. NMFS 
analyzed the ecological and socio-economic impacts of each alternative 
considered in the Final EA for this rulemaking only and determined that 
the preferred management measures would not have significant ecological 
or socio-economic impacts. In addition, as a result of comments 
received regarding the spiny lobster fishery, NMFS changed the final 
action. Additionally, in the upcoming amendment to the Consolidated HMS 
FMP, NMFS will include a full analysis of socio-economic impacts of the 
management measures in the Atlantic shark fishery as well as the 
reeffish,

[[Page 20768]]

snapper/grouper, tilefish, and other fisheries, as appropriate.
    Comment 8: NMFS received a comment stating that the Agency should 
declare the shark fishery an economic disaster.
    Response: Under the Magnuson-Stevens Act at Sec.312 (16 U.S.C. 
1861a), the Secretary of Commerce can determine whether there is a 
commercial fishery failure due to a fishery resource disaster as a 
result of (A) natural causes; (B) man-made causes beyond the control of 
fishery managers to mitigate through conservation and management 
measures, including regulatory restrictions (including those imposed as 
a result of judicial action) imposed to protect human health or the 
marine environment; or (C) undetermined causes. NMFS is currently 
reviewing these criteria during implementation of the Magnuson-Stevens 
Reauthorization Act and has not made any determination at this time 
with regard to the Atlantic shark fishery.

Changes to the Proposed Rule

    NMFS has made a change from the March 8, 2007, proposed rule 
regarding the opening and closing dates for the 2007 second and third 
merged season in the South Atlantic region. In the proposed rule, NMFS 
proposed to open the merged 2007 second and third season on August 1, 
2007, and to close it on September 15, 2007. This was based on 
available quotas, historic catch rates, and dealer data on the amount 
of quota taken during a closure. The August 1 start date was proposed 
because of lower catch rates in August versus July, therefore allowing 
for a longer 6 week continuous season. However, due to concerns 
regarding an August 1 opening date in the South Atlantic region and the 
overlap with the August 1 opening date of the spiny lobster fishery in 
the South Atlantic region, the LCS preferred alternative, alternative 
2, has been modified. Based on the average July and August LCS catch 
rates in the South Atlantic region, NMFS calculates that approximately 
69.6 percent of the merged second and third season quota (163.7 mt dw) 
would likely be taken by the second week of August. Historic dealer 
data also indicate that, on average, approximately 2.3 percent of 
available quota is taken during a closure from May through August. If 
the catch rates in 2007 are similar to average catch rates in the 
second and third season from 2003-2006 and landings after a closure 
remain consistent, 71.9 percent (69.6 percent + 2.3 percent) of the 
merged second and third trimester quota would be caught by the second 
week of August, and 105.6 percent (103.3 percent + 2.3 percent) would 
be taken by the third week of August. Because of historically high 
catch rates in July if the merged season was to open on July 6, as in 
the past, the 163.7 mt dw of available quota would likely be taken in 3 
weeks. Therefore, in order to allow for a longer merged season, NMFS 
modified the opening from August 1 to July 15. The combined second and 
third trimester season in the South Atlantic region would be open for 
just over four weeks (Table 1). This continuous season would afford 
more flexibility in addressing market conditions for LCS, and thus 
potentially allow for greater profits. The positive aspects of merging 
the two seasons include reduced operating costs since fishermen will 
only need to prepare the vessel once instead of twice and they are more 
likely to have a viable market for LCS given that the season is longer. 
NMFS is closing the season on August 15 (Table 1), when only 71.9 
percent of the available quota will likely be taken to avoid 
overharvest that may occur due to potential increased effort in the 
South Atlantic region because this region is currently closed to LCS 
fishing.

Final Fishing Season Notification and Quotas for the 2007 Second and 
Third Trimester Seasons

    The final opening and closing dates and quotas for the 2007 LCS and 
SCS second and third trimester seasons are provided in Tables 1 and 2, 
respectively.

        Table 1.--Final LCS season Lengths and Quotas for the Second and Third Trimester Seasons of 2007
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                                         Final merged 2nd and
                Region                  3rd  trimester opening   Final merged 2nd & 3rd   Final merged 2nd & 3rd
                                                dates           trimester closing dates      trimester quotas
----------------------------------------------------------------------------------------------------------------
South Atlantic.......................  July 15, 2007..........  August 15, 2007........  163.70mt dw; 360,893 lb
                                                                                          dw.
Gulf of Mexico.......................  September 1, 2007......  September 22, 2007.....  83.1 mt dw; 183,202 lb
                                                                                          dw.
North Atlantic.......................  July 6, 2007--2nd        July 31, 2007--2nd       69.0 mt dw; 152,117 lb
                                        trimester.               trimester.               dw.
                                       Closed 3rd trimester...  Closed 3rd trimester...  CLOSED.
----------------------------------------------------------------------------------------------------------------


  Table 2.--Final SCS and Pelagic Shark Season Lengths and Quotas for the Second and Third Trimester Season of
                                                      2007
----------------------------------------------------------------------------------------------------------------
                                                                                          2007 2nd tri. adjusted
          2007 2nd trimester                Opening dates            Closing dates                quota
----------------------------------------------------------------------------------------------------------------
SCS South Atlantic (49%).............  May 1, 2007............  To be determined as      291.6 mt dw; 642,861 lb
                                                                 necessary.               dw.
SCS Gulf of Mexico (48%).............  May 1, 2007............  To be determined as      72.6 mt dw; 160,054 lb
                                                                 necessary.               dw.
SCS North Atlantic (3%)..............  May 1, 2007............  To be determined as      36.2 mt dw; 79,807 lb
                                                                 necessary.               dw.
Blue Sharks..........................  May 1, 2007............  To be determined as      91.0 mt dw; 200,619 lb
                                                                 necessary.               dw.
Porbeagle............................  May 1, 2007............  To be determined as      30.7 mt dw; 67,681 lb
                                                                 necessary.               dw.
Pelagic Sharks.......................  May 1, 2007............  To be determined as      162.7 mt dw; 358,688 lb
                                                                 necessary.               dw.
----------------------------------------------------------------------------------------------------------------


 
                                                                                          2007 3rd tri. adjusted
          2007 3rd trimester                Opening dates            Closing dates                quota
----------------------------------------------------------------------------------------------------------------
SCS South Atlantic (49%).............  September 1, 2007......  To be determined as      297.5 mt dw; 655,869 lb
                                                                 necessary.               dw.
SCS Gulf of Mexico (48%).............  September 1, 2007......  To be determined as      80.4 mt dw; 177,250 lb
                                                                 necessary.               dw.
SCS North Atlantic (3%)..............  September 1, 2007......  To be determined as      29.4 mt dw; 64,815 lb
                                                                 necessary.               dw.
Blue Sharks..........................  September 1, 2007......  To be determined as      91.0 mt dw; 200,619 lb
                                                                 necessary.               dw.
Porbeagle............................  September 1, 2007......  To be determined as      30.7 mt dw; 67,681 lb
                                                                 necessary.               dw.
Pelagic Sharks.......................  September 1, 2007......  To be determined as      162.7 mt dw; 358,688 lb
                                                                 necessary.               dw.
----------------------------------------------------------------------------------------------------------------


[[Page 20769]]

Classification

    NMFS has determined that this action is consistent with the 
Magnuson-Stevens Act, including the national standards, and other 
applicable law.
    Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator finds 
good cause to waive the 30-day delay in effective date for the May 1, 
2007, start of the 2007 second trimester season for LCS, SCS, pelagic, 
blue, and porbeagle sharks (50 CFR 635.27(b)(1)(i)).
    Updated landings reports for LCS, SCS, pelagic, blue, and porbeagle 
sharks for the 2006 second and third trimester seasons just became 
available in mid January 2007. Due to the discovery of under and late 
dealer reporting in November 2006, NMFS had to expend considerable 
effort in December and January to obtain, verify and document accurate 
landings data for the production of the landings reports that could be 
used to make over- and underharvest adjustments to the quotas 
consistent with 50 CFR 635.27(b)(1)(vi).
    Based on that data, NMFS determined it needed to implement these 
measures in a timely manner to address the overharvest that occurred in 
2006 and to prevent serious damage to the fishery resource by having 
regulations in place by the start of the second trimester fishing 
season, May 1, 2007. If this final rule is not in place by May 1, 2007, 
the baseline quotas for these species, which are higher than the 2007 
adjusted quotas, would come into place as a default. The LCS default 
baseline quotas would be 138.9 mt dw for the South Atlantic region and 
176.1 mt dw for the Gulf of Mexico region, compared to the lower LCS 
adjusted quotas of 83.2 mt dw for the South Atlantic region and 33.2 mt 
dw for the Gulf of Mexico region. If the higher default baseline quotas 
are in place on May 1, it is likely that the fishermen will harvest the 
entire available quota for the second season, leading to an unnecessary 
overharvest of Atlantic Sharks. These overharvests would result in 
damage to the fishery resource and future reductions in available 
quotas and fishing opportunities.
    In addition, historically, the LCS second semi-annual or trimester 
season has opened in July instead of May 1. The time period between 
April and July is the time during which pregnant female sandbar sharks 
and other LCS species begin to pup and prohibited dusky sharks start to 
pup mainly between South Carolina and North Carolina. If this final 
action is not in place by May 1, the higher default baseline quotas 
will come into place and fishermen will begin to fish during months 
that are typically closed to LCS shark fishing due to the pupping 
season. By having the final action in place by May 1, the LCS fishing 
season will not open until July, which allows these critical pupping 
months to remain closed to shark fishing giving overfished sharks a 
greater opportunity to rebuild.
    This final rule been determined to be not significant for purposes 
of Executive Order 12866.
    In compliance with Section 604 of the Regulatory Flexibility Act, a 
Final Regulatory Flexibility Analysis (FRFA) was prepared for this 
rule. The FRFA analyzes the anticipated economic impacts of the 
preferred actions and any significant alternatives to the final rule 
portion of this action that could minimize economic impacts on small 
entities. Each of the statutory requirements of Section 604 of the 
Regulatory Flexibility Act has been addressed, and a summary of the 
FRFA is below. The full FRFA and analysis of economic and ecological 
impacts, are available from NMFS (see ADDRESSES).
    Section 604(a)(1) of the Regulatory Flexibility Act requires the 
Agency to state the objective and need for the rule. As stated earlier, 
the objective of this rule is to establish the quotas and season length 
for the 2007 second and third seasons of the Atlantic shark fishery 
consistent with the Consolidated HMS FMP and the rebuilding plan 
established in the 2003 Amendment 1 to the Atlantic Tunas, Swordfish, 
and Sharks FMP. NMFS needs to implement this action in order to 
maintain fishing mortality at the levels designated in the 2003 
Amendment 1 to the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks 
to prevent overfishing of the fishery resource.
    Section 604(a)(2) of the Regulatory Flexibility Act requires the 
Agency to summarize significant issues raised by the public comment in 
response to the Initial Regulatory Flexibility Analysis (IRFA), a 
summary of the Agency's assessment of such issues, and a statement of 
any changes made as a result of the comments. The IRFA was done as part 
of the draft EA for the 2007 second and third season Atlantic 
commercial shark management measures. NMFS did not receive any comments 
specific to the IRFA. NMFS received an economic comment regarding the 
overlap of the shark fishery with the lobster fishery in the South 
Atlantic region that stated that the July 6 opening in the South 
Atlantic region would be better than the proposed August 1st opening 
because the spiny lobster fishery opens August 1st. Specifically, the 
commenters felt that a July opening would avoid gear conflicts with 
spiny lobster traps and would allow spiny lobster fishermen to fish for 
sharks even if it was a two week season.
    As a result of comments received regarding concerns over the August 
1 opening date in the South Atlantic region as proposed, NMFS will 
modify the opening date for the preferred LCS alternative in the South 
Atlantic region in the final rule. Based on the average July and August 
LCS catch rates and dealer data in the South Atlantic region, NMFS 
calculates, based on a July 15 start date, that approximately 71.9 
percent of the merged second and third trimester quota would be caught 
by the second week of August, and 105.6 percent would be taken by the 
third week of August. Therefore, the combined second and third 
trimester season in the South Atlantic region would be open for just 
over four weeks. NMFS is closing the merged season on August 15 (Table 
1), when only 71.9 percent of the available quota will likely be taken 
to avoid overharvest that may occur due to potential increase in effort 
in the South Atlantic region because this region is currently closed.
    Section 604(a)(3) of the Regulatory Flexibility Act requires the 
Agency to describe and provide an estimate of the number of small 
entities to which the rule will apply. NMFS considers all HMS permit 
holders to be small entities because they either had gross receipts 
less than $3.5 million for fish-harvesting, gross receipts less than 
$6.0 million for charter/party boats, or 100 or fewer employees for 
wholesale dealers. These are the Small Business Association size 
standards for defining a small versus large business entity in this 
industry. As of January 2007, there were a total of 552 commercial 
permit holders in the Atlantic shark fishery (235 directed and 314 
incidental permits). Comparing 2005 logbook data with permit holders 
indicates that there were 86 active vessels in the Gulf of Mexico 
region, 46 active vessels in the South Atlantic region, and 6 active 
vessels in the North Atlantic region. More information regarding the 
numbers of small entities involved in the fishery and their locations 
can be found in Chapter 6 of the EA (see ADDRESSES).
    Section 604(a)(4) of the Regulatory Flexibility Act requires the 
Agency to describe the projected reporting, recordkeeping, and other 
compliance requirements of the final rule, including an estimate of the 
classes of small entities which would be subject to the requirements of 
the report or record. None of the alternatives considered for this 
final rule would result in additional

[[Page 20770]]

reporting, recordkeeping, and compliance requirements.
    Section 604(a)(5) of the Regulatory Flexibility Act requires the 
Agency to describe the steps taken to minimize the significant economic 
impact on small entities consistent with the stated objectives of 
applicable statutes. Additionally, the Regulatory Flexibility Act (5 
U.S.C. 603(c)(1)-(4)) lists four general categories of ``significant'' 
alternatives that would assist an agency in the development of 
significant alternatives. These categories of alternatives are:
     Establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities;
     Clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities;
     Use of performance rather than design standards; and
     Exemptions from coverage of the rule for small entities.
    As noted earlier, NMFS considers all permit holders in this fishery 
to be small entities. In order to meet the objectives of this final 
rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt 
small entities or change the reporting requirements only for small 
entities. Thus, there are no alternatives discussed that fall under the 
first and fourth categories described above. In addition, none of the 
alternatives considered would result in additional reporting or 
compliance requirements (category two above). NMFS does not know of any 
performance or design standards that would satisfy the aforementioned 
objectives of this rulemaking while, concurrently, complying with the 
Magnuson-Stevens Act.
    As described below, NMFS analyzed seven different alternatives in 
this final rulemaking and provides justification for selection of the 
preferred alternatives to achieve the desired objective.
    The alternatives included: Maintain existing procedures for LCS 
quota management (alternative 1, No Action), merge the second trimester 
season quota with the third trimester season quota in the South 
Atlantic and open the combined season July 15, 2007 (modified 
alternative 2), merge the second trimester season quota with the third 
trimester season quota in the Gulf of Mexico region and open the 
combined season September 1, 2007 (alternative 3), maintain the 
existing procedures for SCS quota management (alternative 4, No 
Action), transfer a portion of the South Atlantic region's 2007 second 
trimester SCS underharvest to the Gulf of Mexico region (alternative 
5), transfer a portion of the South Atlantic region's 2007 second 
trimester SCS underharvest to the Gulf of Mexico region as well as give 
the Gulf of Mexico region additional SCS quota for the 2007 second 
trimester season (alternative 6), and reallocate the SCS regional quota 
percentages in the South Atlantic region from 87 percent to 49 percent 
and in the Gulf of Mexico region from 10 percent to 48 percent and 
transfer a portion of the South Atlantic region's 2007 second trimester 
SCS underharvest to the Gulf of Mexico region (alternative 7). Merging 
the second and third trimester seasons for LCS for both the South 
Atlantic (alternative 2) and the Gulf of Mexico (alternative 3) regions 
and also reallocating the SCS regional quota percentages between the 
South Atlantic and Gulf of Mexico regions for the second and third 
trimesters while also transferring a portion of the South Atlantic's 
regional second trimester underharvest to the Gulf of Mexico 
(alternative 7) are the preferred alternatives.

Alternatives Considered for LCS

    Alternative 1 is considered the no action alternative since it 
would maintain existing procedures for addressing regional trimester 
over- and underharvests of LCS when establishing the regional quotas 
and seasons for the second and third trimesters of 2007 and it would 
also open the mid-Atlantic shark closed area in July, subject to 
available quota for the second trimester in 2007. This alternative is 
not preferred in part because it would result in negative economic 
impacts for the South Atlantic region and Gulf of Mexico region, 
compared to the preferred alternative.
    The no action alternative does not create any new economic burdens 
on the shark commercial industry that were not included in previous 
rulemaking. Regardless, the unexpected magnitude of the 2006 second 
trimester overharvest would result in no commercial fishing for LCS in 
the entire Gulf of Mexico region during the second trimester of 2007 
since the available adjusted quota would be taken in approximately two 
days. Furthermore, overharvest during the second trimester in 2006 in 
the South Atlantic region would result in a reduced second trimester 
quota of 83.2 mt dw and therefore the fishing season would be adjusted 
and shortened to last only from July 6 to July 20, 2007.
    If not for the overharvest in 2006, the second trimester quota 
allocation would have been 138.9 mt of LCS in the South Atlantic 
region. Instead, the adjusted quota under this alternative would be 
83.2 mt dw, which is 55.7 mt dw less than it would have been under the 
base quota allocation. To estimate the value of changes in revenues 
from the 2007 available quota, the median ex-vessel prices from 2003 to 
2006 for each region were used to forecast 2007 shark prices since this 
multi-year average smoothes out temporary market fluctuations. Using a 
median ex-vessel price of $0.48 per pound dressed weight of LCS and 
$12.28 per pound for shark fin as reported on HMS dealer reports from 
2003 to 2006 for the South Atlantic region and adjusted for inflation, 
the value of the 55.7 mt dw reduction from the baseline quote 
allocation would have been approximately $55,996 for LCS flesh (95 
percent of the quota weight) and $75,398 for shark fins (based on the 5 
percent shark fin to carcass regulation). Therefore, the 2006 
overharvest is estimated to have a direct revenue impact on South 
Atlantic regional commercial shark fishing activity of approximately 
$131,393. However, it should be noted that due to the overharvest, 
fishermen received more revenue in the 2006 second trimester than 
previously expected. Since the actual prices received for the 2006 
second trimester are available, those prices were used to calculate the 
``extra'' revenues generated from the overharvest in the second 
trimester of 2006. Using the median ex-vessel prices for the second 
trimester of 2006 of $0.40 and $10.00 for LCS flesh and shark fins, 
respectively, for the South Atlantic region, the estimated revenue for 
the second trimester in 2006 from the 55.7 mt dw in overharvest was 
$108,162. Due to the extra landings in 2006, a shortened second 
trimester for 2007 would result in disrupted revenue flows and result 
in negative economic impacts.
    If not for the overharvest in the second trimester of 2006 in the 
Gulf of Mexico region, the second trimester quota available would have 
been 176.1 mt of LCS in the Gulf of Mexico region. However, due to the 
overharvest, the adjusted quota is 33.2 mt for LCS. Because of the 
small size of this quota, no fishing season is feasible due to safety 
at sea concerns and potential derby fishing conditions. Using a median 
ex-vessel price of $0.44 for LCS and $17.05 for shark fin as reported 
on HMS dealer reports from 2003 to 2006 for the Gulf of Mexico region 
and adjusted for inflation, the value of the 176.1 mt dw baseline quota 
for the second trimester of 2007 is approximately $162,282 for LCS 
fresh (95 percent of the quota weight) and $330,969 for shark fins 
(based on the 5

[[Page 20771]]

percent shark fin to carcass regulation). Therefore, the 2006 
overharvest is estimated to have a direct revenue impact on Gulf of 
Mexico regional commercial shark fishing activity of approximately 
$493,251. Using the median ex-vessel prices for the second trimester of 
2006 of $0.40 and $13.00 for LCS flesh and shark fins, respectively, 
for the Gulf of Mexico region, the estimated revenue for the second 
trimester in 2006 from the 142.9 mt dw (176.1--33.2 mt dw) in 
overharvest was $324,491. However, a closure during the second 
trimester of 2007 would result in disrupted revenue flows and result in 
negative economic impacts.
    The quota for the second trimester of 2007 is not impacted by 
overharvests in the North Atlantic region. However, in the 2007 third 
trimester, the North Atlantic region would be closed to fishing because 
of overharvest in the third trimester of 2006. The base quota 
allocation for the third trimester would have been 5.7 mt dw if not for 
the overharvest. Using an average between the median ex-vessel price in 
the South Atlantic and the Gulf of Mexico regions from 2003 to 2006 
adjusted for inflation, the approximate value of this quota allocation 
would have been $14,709. This minor economic impact is offset by the 
extra revenue received sooner as a result of the 2.5 mt dw overharvest 
in the third trimester worth $6,451. However, it should also be noted 
that the third season was closed in 2006.
    During the third trimester of 2006, there was also an overharvest 
in the South Atlantic region. This resulted in the base quota 
allocation being reduced from 138.9 mt dw to an adjusted quota of 80.5 
mt dw for the third trimester. Using a similar calculation as before, 
the economic impact of the overharvest would be a reduced third quarter 
value of revenues of approximately $137,762. However, it should be 
noted that fishermen received revenue sooner under the 2006 third 
trimester overharvest than they normally would have received. Using the 
median ex -vessel prices for the third trimester of 2006 of $0.45 and 
$8.00 for LCS flesh and shark fins, respectively, for the South 
Atlantic region, the estimated revenue for the third trimester in 2006 
from the 58.4 mt dw in overharvest was $100,425.
    During the third trimester of 2006, there was also an overharvest 
in the Gulf of Mexico region. This resulted in the base quota 
allocation being reduced from 176.1 mt dw to an adjusted quota of 49.9 
mt dw for the third trimester. Using a similar calculation as above, 
the economic impact of the overharvest would be a reduced third quarter 
value of revenues of approximately $353,482. However, it should be 
noted that due to the overharvest, fishermen received more revenue in 
the 2006 third trimester than previously expected. Using the median ex-
vessel prices for the third trimester of 2006 of $0.40 and $17.00 for 
LCS flesh and shark fins, respectively for the Gulf of Mexico region, 
the estimated revenue for the third trimester in 2006 from the 126.2 mt 
dw in overharvest was $342,214. Despite this extra revenue in 2006, a 
shortened third trimester for 2007 would result in disrupted revenue 
flows and result in negative economic impacts.
    Overall, the economic impact of reduced 2007 LCS quota for the 
South Atlantic, Gulf of Mexico, and North Atlantic regions for the 
second and third trimesters of 2007 would result in a total economic 
impact of $1,130,597 in reduced revenues. However, this is partially 
offset by the extra revenues generated in the second and third 
trimesters of 2006 estimated to be worth $881,644. Some of the impacts 
from these reduced revenues might be mitigated somewhat for vessels 
that can fish in other regions or fisheries. However, these 
opportunities will likely be limited and result in additional costs 
associated with adjusting current fishing practices.
    Alternative 2, the modified preferred alternative, which would 
merge the second trimester season in the South Atlantic region with the 
third trimester season quota in the South Atlantic region, could 
minimize the economic costs associated with the South Atlantic regional 
overharvest. The 83.2 mt dw adjusted quota for the second trimester 
would be combined with the 80.5 mt dw adjusted quota for the third 
trimester in the South Atlantic to provide a combined 163.7 mt dw 
season starting on July 15, 2007, that would remain open until August 
15, 2007.
    There does not appear to be any significant seasonality to LCS and 
shark fin ex-vessel prices. Therefore, revenues under this alternative 
would likely be at least the same as having two separate seasons. The 
combined seasons under the modified Alternative 2 would provide for a 
total of just over four weeks to fish the LCS quota in the South 
Atlantic region versus five weeks (split into two seasons) under the no 
action alternative. This continuous season would afford more 
flexibility in addressing market conditions for LCS, and thus 
potentially allow for greater profits. Starting the season in July 
opens the mid-Atlantic shark closure to the South Atlantic region. This 
could have positive economic benefits, especially since catch rates 
have been historically higher in July than in August. The positive 
aspects of merging the two seasons include reduced operating costs 
since fishermen will only need to prepare the vessel once instead of 
twice and they are more likely to have a viable market for LCS given 
the longer season.
    Alternative 3 is similar to Alternative 2 in that it merges the 
second trimester season with the third trimester season quota, but is 
instead for the Gulf of Mexico region. The merged season would combine 
the second trimester season quota of 33.2 mt dw with the third 
trimester season quota of 49.9 mt dw to create a three week long season 
starting September 1, 2007, that would have 83.1 mt dw of quota. This 
preferred alternative would have the benefit of extending the third 
season by one week versus under Alternative 1. Since Alternative 3 has 
the same start date as Alternative 1, there would not be any impact on 
that portion of the Gulf of Mexico region. Alternative 3 also allows 
the 33.2 mt dw quota of the second season to be fished. Under 
Alternative 1, the season for that 33.2 mt dw of quota would have been 
closed. Using a median ex-vessel price of $0.44 for LCS and $17.05 for 
shark fin reported HMS Dealer reports from 2003 to 2006 for the Gulf of 
Mexico region and adjusted for inflation, the value of harvesting this 
33.2 mt dw of quota would be approximately $92,992 in revenue. In 
addition, by providing for a three week combined fishing season, this 
alternative would afford more flexibility in addressing market 
conditions for LCS.

Alternatives Considered for SCS

    Alternative 4 is considered the no action alternative since it 
would maintain existing procedures for addressing regional trimester 
over- and underharvests for SCS when establishing the regional quotas 
and seasons for the second and third trimesters of 2007. No change in 
economic impacts would be realized in the North Atlantic and South 
Atlantic regions since that region would be open, with ample quota, 
throughout the entire second and third trimesters of 2007 under the 
status quo. This alternative is not preferred, as it would result in 
greater negative economic impacts for the Gulf of Mexico region, 
compared to the preferred alternative.
    The no action alternative would not create any new economic burdens 
on the SCS commercial industry that were not included in previous 
rulemaking. Regardless, the size of the 2006 second trimester 
overharvest in the Gulf of Mexico region would result in no commercial 
fishing for SCS in the entire

[[Page 20772]]

Gulf of Mexico region during the second trimester of 2007. Even after a 
ten percent quota transfer from the South Atlantic second season 
underharvest, the 25.87 mt dw of transferred quota is not sufficient to 
address the 41.2 mt dw of overharvest in the Gulf of Mexico region 
during the second trimester season of 2006.
    If not for the overharvest in 2006, the 2007 second trimester quota 
allocation would have been 15.1 mt dw of SCS in the Gulf of Mexico 
region. Instead, the adjusted quota under Alternative 4 would be 
negative 26.1 mt dw resulting in a closed fishing season. Using a 
median ex-vessel price of $0.44 per pound dw for SCS and $17.05 per 
pound for shark fin reported HMS dealer reports from 2003 to 2006 for 
the Gulf of Mexico region and adjusted for inflation, the value of this 
harvest (15.1 mt dw) would have been approximately $13,915 for SCS 
flesh (95 percent of the quota weight) and $28,380 for shark fins 
(based on the 5 percent shark fin to carcass regulation). Therefore, 
the 2006 overharvest is estimated to have a direct revenue impact on 
Gulf of Mexico regional commercial shark fishing activity of 
approximately $42,295. However, it should be noted that due to the 
overharvest, fishermen received more revenue in the 2006 second 
trimester than previously expected.
    Alternative 5 would transfer a portion of the South Atlantic's 
regional 2007 second trimester SCS underharvest (41.2 mt dw) to the 
Gulf of Mexico region to cover the Gulf of Mexico's regional 2006 
second trimester overharvest. The Gulf of Mexico would then have the 
equivalent of their base quota of 15.1 mt dw for the 2007 second 
trimester. This would eliminate the economic impact of a closure in the 
Gulf of Mexico region in 2007 unlike under the no action alternative. 
This additional quota transfer would likely not provide enough quota to 
prevent an overharvest during the 2007 second trimester. The South 
Atlantic region would still have an adjusted third trimester quota of 
349 mt dw, which is much greater than the amount that region actually 
harvested in the second season of 2006. The only economic impacts would 
come from potential future impacts to the South Atlantic region as a 
result of the 41.2 mt dw transfer of their underhavest to the Gulf of 
Mexico region if, in the future, the South Atlantic harvests more SCS 
than is accommodated by their lowered adjusted quota.
    Alternative 6 would transfer a portion of the South Atlantic 
region's 2007 second trimester SCS underharvest (41.2 mt dw) to the 
Gulf of Mexico region to cover the Gulf of Mexico region's 2006 second 
trimester SCS overharvest as well as give the Gulf of Mexico region 
additional SCS quota of 15.1 mt dw from the South Atlantic region for a 
total of 30.2 mt dw for the 2007 second trimester. This additional 
quota transfer would likely not provide enough quota to prevent an 
overharvest during the 2007 second trimester. However, this additional 
quota (15.1 mt dw) would provide the Gulf of Mexico region with an 
additional $42,294 in potential revenue from SCS. It would also further 
reduce the underharvest carry forward of SCS in the South Atlantic as a 
result of the larger transfer. There could be future economic impacts 
in the South Atlantic region if SCS catches increase in that region in 
the future.
    Alternative 7 would take a different approach. Under Alternative 7, 
NMFS would reallocate the SCS regional quota percentages in the South 
Atlantic region from 87 percent to 49 percent and in the Gulf of Mexico 
region from 10 percent to 48 percent for both the 2007 second and third 
trimester seasons and in the future. In addition, there would also be 
transfer of underharvest in the South Atlantic region's 2007 second 
trimester quota to cover the Gulf of Mexico region's second trimester 
overharvest. This alternative is the preferred alternative.
    There would be no change in the total base quota available for all 
regions in the second and third trimester season under this 
alternative. The adjusted 2007 second and third trimester regional 
quota would stay the same for the North Atlantic region. The key change 
would involve the quota amounts for South Atlantic and Gulf of Mexico 
regions. The 2007 second trimester quota in the South Atlantic region 
would decrease from 390.2 mt dw (Alternative 4) to 291.6 mt dw of SCS 
and the 2007 third trimester quota would decrease from 354.9 mt dw 
(Alternative 4) to 297.5 mt dw. Using the 2003 to 2006 median ex-vessel 
prices of $0.67 lbs dw for flesh and the 2003 to 2006 median ex-vessel 
prices for shark fin of $12.28 for SCS in the South Atlantic region, 
there would be a decrease of $200,425 in potential revenues for the 
2007 second trimester season and a $158,245 decrease in potential 
revenues in the 2007 third trimester season. However, it should be 
noted that the South Atlantic region has not harvested SCS in amounts 
approaching even these lowered trimester quota levels in the past few 
years. Under this alternative, the regional quotas for the South 
Atlantic region for the 2007 second and third seasons are 291.6 mt dw, 
and 297.5 mt dw which is 64.2 percent and 65.5 percent of the total 
annual quota for SCS, respectively.
    The 2007 second trimester quota in the Gulf of Mexico region would 
go from closed under the Alternative 4 (No Action) scenario in the 
second trimester season to 72.6 mt dw of SCS under this alternative. In 
addition, the 2007 third trimester quota would increase from 22.9 mt dw 
to 80.4 mt dw. Using the 2003 to 2006 median ex-vessel prices of $0.44 
lbs dw and the 2003 to 2006 median ex-vessel prices for shark fin of 
$17.05 for SCS in the Gulf of Mexico region, there would be an increase 
of $203,350 in potential revenues for the second trimester season and 
$161,506 increase in potential revenues in the third trimester season 
for the Gulf of Mexico region. This reallocation of quota would allow 
the SCS fishery to remain open in the Gulf of Mexico region and would 
prevent future overharvest of quota in that region while not leading to 
an overharvest in the South Atlantic region.
    Overall, Alternative 7 would increase revenues for SCS by 
transferring quota from a region of underharvest to a region that is 
currently overharvesting their SCS quota. The reallocation of regional 
quota percentages would provide greater regional equity in future base 
quota allocations. This would help mitigate overharvesting of the quota 
in the Gulf of Mexico region. However, there could be future impacts to 
the South Atlantic region as a result of the reallocation of the SCS 
regional quota percentage to the Gulf of Mexico region if in the future 
the South Atlantic harvests more than this lower regional quota 
allocation percentage.

List of Subjects in 50 CFR Part 635

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

    Dated: April 23, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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

0
2. In Sec.  635.27, paragraphs (b)(1)(i), (b)(1)(iv), (b)(1)(vi)(A) 
introductory text, are revised to read as follows:

[[Page 20773]]

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. NMFS may consider merging any 
of the fishing seasons pursuant to paragraph (b)(1)(vi) of this 
section.
* * * * *
    (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: 48 percent to the Gulf of Mexico, 49 percent to the 
South Atlantic, and 3 percent to the North Atlantic.
* * * * *
    (vi) * * *
    (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. NMFS may consider merging any 
of the fishing seasons and relevant quotas in any region when there is 
limited available quota in one or more seasons.
* * * * *
 [FR Doc. E7-8029 Filed 4-25-07; 8:45 am]
BILLING CODE 3510-22-P