[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Proposed Rules]
[Pages 63668-63672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25557]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 080723890-81314-01]
RIN 0648-AX03


Atlantic Highly Migratory Species; Atlantic Commercial Shark 
Management Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would adjust quotas for the 2009 fishing 
season for sandbar sharks, non-sandbar large coastal sharks (LCS), 
small coastal sharks (SCS), and pelagic sharks managed under Amendment 
2 to the 2006 Consolidated Atlantic Highly Migratory Species (HMS) 
Fishery Management Plan (FMP) based on any over- and/or underharvests 
experienced during the 2008 Atlantic commercial shark fishing season. 
The purpose of this proposed action is to provide advance notice of 
quotas for the Atlantic commercial shark fishery and address any over- 
and/or underharvests that may have occurred in the Atlantic shark 
fishery during the 2008 fishing season.

DATES: Written comments will be accepted until November 26, 2008.

ADDRESSES: You may submit comments, identified by 0648-AX03, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Fax: 301-713-1917, Attn: Karyl Brewster-Geisz
     Mail: 1315 East-West Highway, Silver Spring, MD 20910. 
Please mark the outside of the envelope ``Comments on Proposed Rule for 
2009 Atlantic Commercial Shark Fishing Season. ''
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain

[[Page 63669]]

anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz by phone: 301-
713-2347, or by fax: 301-713-1917, or Jackie Wilson by phone: 240-338-
3936.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic shark fishery is managed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The regulations outlined in the 2006 Consolidated HMS FMP 
and its amendments are implemented at 50 CFR part 635.
    On July 24, 2008, NMFS published a final rule (73 FR 35778, 
corrected at 73 FR 40658, July 15, 2008) implementing Amendment 2 to 
the 2006 Consolidated HMS FMP. That final rule established the annual 
quotas for all Atlantic shark fisheries and also established adjusted 
base annual quotas for non-sandbar LCS and sandbar sharks through 
December 31, 2012, to account for large overharvests that occurred in 
2007. That final rule also established accounting measures for under- 
and overharvests and redefined the regions in the shark fishery.
    As a result of that final rule, the Atlantic shark annual quotas 
and adjusted base annual quotas apply to all areas of the Atlantic 
Ocean, Gulf of Mexico, and Caribbean Sea, with the exception of non-
sandbar LCS quota outside of the shark research fishery. The non-
sandbar LCS quota outside the research fishery is split between the 
Atlantic Ocean and Gulf of Mexico. The boundary delineating these two 
regions is a line beginning on the east coast of Florida at the 
mainland at 25[deg]20.4' N. lat, proceeding due east. Any water and 
land to the south and west of that boundary is considered, for the 
purposes of quota monitoring and setting of quotas, to be within the 
Gulf of Mexico region. Any water and land to the north and east of that 
boundary, for the purposes of quota monitoring and setting of quotas, 
is considered to be within the Atlantic region.

Accounting for Under- and Overhavests

    Consistent with 50 CFR 635.27(b)(1)(vii)(A), if the available quota 
in a particular region or in the research fishery for non-sandbar LCS 
is exceeded in any fishing season, NMFS will deduct an amount 
equivalent to the overharvest(s) from the following fishing season or, 
depending on the level of overharvest(s), NMFS may deduct an amount 
equivalent to the overharvest(s) spread over a number of subsequent 
fishing seasons to a maximum of five years, in the specific region or 
research fishery where the overharvest occurred. If the available quota 
for sandbar sharks, SCS, porbeagle sharks, and pelagic sharks (other 
than porbeagle or blue sharks) is exceeded in any fishing season, NMFS 
will deduct an amount equivalent to the overharvest(s) from the 
following fishing season or, depending on the level of overharvest(s), 
NMFS may deduct an amount equivalent to the overharvest(s) spread over 
a number of subsequent fishing seasons to a maximum of five years. If 
the blue shark quota is exceeded, NMFS will reduce the annual 
commercial quota for pelagic sharks (other than porbeagle or blue 
sharks) by the amount that the blue shark quota is exceeded prior to 
the start of the next fishing season or, depending on the level of 
overharvest(s), NMFS will deduct an amount equivalent to the 
overharvest(s) spread over a number of subsequent fishing seasons to a 
maximum of five years.
    If an annual quota for sandbar sharks, SCS, blue sharks, porbeagle 
sharks, or pelagic sharks (other than porbeagle or blue sharks) is not 
exceeded, NMFS may adjust the annual quota depending on the status of 
the stock or quota group. If the annual quota for non-sandbar LCS is 
not exceeded in either region or in the research fishery, NMFS may 
adjust the annual quota for that region or the research fishery 
depending on the status of the stock or quota group. If the stock/
complex (e.g., sandbar sharks, porbeagle sharks, non-sandbar LCS, or 
blue sharks) or specific species within a quota group (e.g., blacknose 
sharks within the SCS complex) is declared to be overfished, to have 
overfishing occurring, or to have an unknown status, NMFS will not 
adjust the following fishing year's quota for any underharvest, and the 
following fishing year's quota will be equal to the base annual quota 
(or the adjusted base quota for sandbar sharks and non-sandbar LCS 
until December 31, 2012).
    Currently, blacknose sharks within the SCS complex and sandbar 
sharks have been determined to be overfished with overfishing 
occurring. Porbeagle sharks have been determined to be overfished. Blue 
sharks and pelagic sharks (other than porbeagle or blue sharks) have an 
unknown stock status. Finally, blacktip sharks in the Gulf of Mexico 
region were determined to not be overfished with no overfishing 
occurring. However, blacktip sharks were placed in the non-sandbar LCS 
complex for the Atlantic and Gulf of Mexico regions, the status of 
which has been determined to be unknown. Therefore, since the 
individual species, complexes, and species within a complex have all 
been determined to be either overfished, overfished with overfishing 
occurring, or unknown, no underharvests from the 2008 Atlantic 
commercial shark fishing season will be applied to the 2009 annual 
quotas or adjusted base quotas. Thus, the 2009 proposed quotas will be 
equal to the base annual quota for SCS, porbeagle sharks, blue sharks, 
and pelagic sharks (other than porbeagle or blue sharks) or the 
adjusted base annual quota for sandbar sharks and non-sandbar LCS, 
minus any potential overharvests that may have occurred in the 2008 
season.

2009 Proposed Quotas

    This proposed rule does not propose any changes to the overall 
adjusted base and annual commercial quotas as established under 
Amendment 2 to the 2006 Consolidated HMS FMP. Proposed 2009 quotas for 
the 2009 Atlantic commercial shark fishing season by species and 
species group are summarized in Tables 1 and 2.

[[Page 63670]]



   Table 1. 2009 proposed quotas for non-sandbar LCS and sandbar sharks for the 2009 commercial shark fishing
                                                     season.
        All quotas and landings are dressed weight (dw), in metric tons (mt), unless specified otherwise.
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                                         80 Percent                                  2009
                             2008 Base    of 2008     Preliminary                    Base      2009     Proposed
  Species Group    Region     Annual     Available        2008       Overharvest    Annual   Proposed    Season
                             Quota\1\      Quota      Landings\2\                   Quota     Quota
----------------------------------------------------------------------------------------------------------------
Non-Sandbar       Gulf of   390.5       312.4        96.4           390.5          390.5    Effective
 Large Coastal     Mexico   (860,896    (688,717 lb  (212,652 lb    (860,896 lb    (860,89   date of
 Sharks                      lb dw)      dw)          dw)            dw)            6 lb     final
                                                                                    dw)      rule
                                                                                            --
                                                                                            To be
                                                                                             determin
                                                                                             ed
                 -------------------------------------------------------------------------------------
                  Atlantic  187.8       150.2        118.6          --             187.8    187.8
                            (414,024    (331,131 lb  (261,466 lb                   (414,02  (414,024
                             lb dw)      dw)          dw)                           4 lb     lb dw)
                                                                                    dw)
------------------------------------------------------------------------------------------------------
Non-Sandbar LCS   No        37.5        30.0         3.3            -              37.5     37.5
 Research Quota    regiona  (82,673 lb  (66,138 lb   (7,275 lb dw)                 (82,673  (82,673
                   l         dw)         dw)                                        lb dw)   lb dw)
                   quotas
-----------------          ---------------------------------------------------------------------------
Sandbar Research  ........  87.9        70.3         27.2           --             87.9     87.9
 Quota                      (193,784    (154,983 lb  (59,965 lb                    (193,78  (193,784
                             lb dw)      dw)          dw)                           4 lb     lb dw)
                                                                                    dw)
----------------------------------------------------------------------------------------------------------------
\1\2008 annual base quotas are the quotas being implemented from July 24, 2008, until December 31, 2012.
\2\Landings are from January 1, 2008 until September 15, 2008, and are subject to change.


     Table 2. 2009 proposed quotas for SCS and pelagic sharks for the 2009 commercial shark fishing season.
             All quotas and landings are dressed weight, in metric tons, unless specified otherwise.
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                                       80 Percent
                              2008      of 2008     Preliminary                    2009       2009      Proposed
  Species Group    Region    Annual    Available        2008       Overharvest    Annual    Proposed     Season
                              Quota      Quota      Landings\1\                    Quota      Quota
----------------------------------------------------------------------------------------------------------------
Small Coastal     No        454       363.2        154.7          --             454       454         Effective
 Sharks            regiona  (1,000,8  (800,710 lb  (341,054 lb                   (1,000,8  (1,000,888   date of
                   l         88 lb     dw)          dw)                           88 lb     lb dw)      final
                   quotas    dw)                                                  dw)                   rule
                                                                                                       --
                                                                                                       To be
                                                                                                        determin
                                                                                                        ed
-----------------          ---------------------------------------------------------------------------
Blue Sharks       ........  273       218.4        0.6            --             273       273
                            (601,856  (481,485 lb  (1,224 lb dw)                 (601,856  (601,856
                             lb dw)    dw)                                        lb dw)    lb dw)
-----------------          ---------------------------------------------------------------------------
Porbeagle Sharks  ........  1.7       1.36         0.9            --             1.7       1.7         .........
                            (3,748    (2,998 lb    (1,888 lb dw)                 (3,748    (3,748 lb
                             lb dw)    dw)                                        lb dw)    dw)
-----------------          ---------------------------------------------------------------------------
Pelagic Sharks    ........  488       390.4        103.5          --             488       488
 Other Than                 (1,075,8  (860,676 lb  (228,139 lb                   (1,075,8  (1,075,856
 Porbeagle or                56 lb     dw)          dw)                           56 lb     lb dw)
 Blue                        dw)                                                  dw)
----------------------------------------------------------------------------------------------------------------
\1\Landings are from January 1, 2008, until September 15, 2008, and are subject to change.

    As of September 15, 2008, no Atlantic commercial shark quotas have 
been exceeded during the 2008 Atlantic commercial shark fishing season. 
The 2009 proposed quotas for the respective shark complexes/species are 
subject to change in the final rule for this action, based on any final 
calculations that reveal, if any, overharvests in the 2008 season.

1. Proposed 2009 Quotas for Non-Sandbar LCS and Sandbar Sharks Within 
the Shark Research Fishery

    Pursuant to Amendment 2 to the 2006 Consolidated HMS FMP, the 2009 
adjusted base annual commercial quotas within the shark research 
fishery are 37.5 mt dw (82,673 lb dw) for non-sandbar LCS and 87.9 mt 
dw (193,784 lb dw) for sandbar sharks. This proposed rule does not 
propose any changes to any of the overall adjusted base commercial 
quotas.
    Within the shark research fishery, as of September 15, 2008, 
preliminary reported landings of non-sandbar LCS were at 8.8 percent 
(3.3 mt dw), and sandbar shark reported landings were at 30.9 percent 
(27.2 mt dw). These reported landings do not exceed the available 
quota. Therefore, based on preliminary estimates, the 2009 proposed 
quotas do not need to be reduced based on any overharvests, consistent 
with the current regulations at 50 CFR 635.27(b)(1)(vii).
    Under 50 CFR 635.27(b)(1)(vii)(A), because the individual species, 
complexes, or species within a complex have been determined to be 
either overfished, overfished with overfishing occurring, or have an 
unknown status, underharvests for these species and/or complexes would 
not be applied to the 2009 quotas. Therefore, the 2009 proposed quotas 
would be the adjusted base annual quotas for non-sandbar LCS and 
sandbar sharks within the shark research fishery (37.5 mt dw (82,673 lb

[[Page 63671]]

dw) and 87.9 mt dw (193,784 lb dw), respectively).

2. Proposed 2009 Quotas for the Non-Sandbar LCS in the Gulf of Mexico 
Region

    Pursuant to Amendment 2 to the 2006 Consolidated HMS FMP, the 2009 
adjusted base annual quota for non-sandbar LCS in the Gulf of Mexico 
region is 390.5 mt dw (860,896 lb dw). As of September 15, 2008, 
preliminary reported landings were at 24.7 percent (96.4 mt dw) for 
non-sandbar LCS in the Gulf of Mexico region. These reported landings 
do not exceed the available quota. However, since the status of this 
complex is unknown, any underharvest would not be applied to the 2009 
adjusted base annual quota. Therefore, the 2009 proposed quota would be 
the adjusted base annual quota for non-sandbar LCS in the Gulf of 
Mexico region or 390.5 mt dw (860,896 lb dw), as established in 
Amendment 2 and its final rule.

3. Proposed 2009 Quotas for the Non-Sandbar LCS in the Atlantic Region

    Pursuant to Amendment 2 to the 2006 Consolidated HMS FMP, the 2009 
adjusted base annual quota for non-sandbar LCS in the Atlantic region 
is 187.8 mt dw (414,024 lb dw). As of September 15, 2008, preliminary 
reported landings were at 63.2 percent (118.6 mt dw) for non-sandbar 
LCS in the Atlantic region. These landings do not exceed the available 
quota. However, since the status of this complex is unknown, any 
underharvest would not be applied to the 2009 adjusted base annual 
quota. Therefore, the 2009 proposed quota would be the adjusted base 
annual quota for non-sandbar LCS in the Atlantic region or 187.8 mt dw 
(414,024 lb dw), as established in Amendment 2 and its final rule.

4. Proposed 2009 Quotas for SCS and Pelagic Sharks

    Pursuant to Amendment 2 to the 2006 Consolidated HMS FMP, the 2009 
annual commercial quotas for small coastal sharks, blue sharks, 
porbeagle sharks, and pelagic sharks (other than porbeagle or blue 
sharks) are 454 mt dw (1,000,888 lb dw), 273 mt dw (601,856 lb dw), 1.7 
mt dw (3,748 lb dw), and 488 mt dw (1,075,856 lb dw), respectively. 
This proposed rule does not propose any changes to these overall annual 
commercial quotas.
    As of September 15, 2008, preliminary reported landings of SCS, 
blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle 
and blue sharks) were at 34.1 percent (154.7 mt dw), 0.2 percent (0.6 
mt dw), 52.9 percent (0.9 mt dw), and 21.2 percent (103.5 mt dw), 
respectively. These landings do not exceed the available quotas. 
However, under 50 CFR 635.27(b)(1)(vii)(A), because the individual 
species, complexes, or species within a complex have been determined to 
be either overfished, overfished with overfishing occurring, or have an 
unknown status, underharvests for these species and/or complexes would 
not be applied to the 2009 quotas. Therefore, the 2009 proposed quotas 
would be the annual quotas for SCS, blue sharks, porbeagle sharks, and 
pelagic sharks (other than blue and porbeagle sharks) (454 mt dw 
(1,000,888 lb dw), 273 mt dw (601,856 lb dw), 1.7 mt dw (3,748 lb dw), 
and 488 mt dw (1,075,856 lb dw), respectively).

Proposed Fishing Season Notification for the 2009 Atlantic Commercial 
Shark Fishing Season

    The 2009 Atlantic commercial shark fishing season for non-sandbar 
LCS, sandbar sharks, SCS, blue sharks, porbeagle sharks, and pelagic 
sharks (other than porbeagle and blue sharks) in the northwestern 
Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, is 
proposed to open upon the effective date of the final rule for this 
action. The fishery will remain open until December 31, 2009, unless 
NMFS calculates that the fishing season landings for sandbar shark, 
non-sandbar LCS, SCS, blue sharks, porbeagle sharks, or pelagic sharks 
(other than porbeagle or blue sharks) has reached, or is projected to 
reach, 80 percent of the available quota. At that time, consistent with 
50 CFR 635.27(b)(1), NMFS will file for publication with the Office of 
the Federal Register a notice of closure for that shark species group 
and/or region that will be effective no fewer than 5 days from date of 
filing. From the effective date and time of the closure until NMFS 
announces, via a notice in the Federal Register, that additional quota 
is available and the season is reopened, the fishery for the shark 
species group and, for non-sandbar LCS, region would remain closed, 
even across fishing years, consistent with 50 CFR 635.28(b)(2).

Request for Comments

    Comments on this proposed rule may be submitted via email, mail, or 
fax. NMFS solicits comments on this proposed rule by November 26, 2008 
(see DATES and ADDRESSES).

Classification

    This proposed rule is published under the authority of the 
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Consistent with 50 CFR 
635.27(b)(1)(vii), the purpose of this action is to adjust the Atlantic 
shark annual quotas based on over- and/or underharvests from the 2008 
commercial shark fishing season. This proposed rule will not increase 
the overall quotas or landings for non-sandbar LCS, sandbar sharks, 
SCS, blue, porbeagle, or pelagic sharks (other than porbeagle or blue 
sharks), and is not expected to increase fishing effort or protected 
species interactions.
    On July 24, 2008, NMFS published a final rule (73 FR 35778, 
corrected at 73 FR 40658) for Amendment 2 to the 2006 Consolidated HMS 
FMP that established adjusted base annual quotas for non-sandbar LCS 
and sandbar sharks. The final rule also established annual quotas for 
SCS, porbeagle sharks, blue sharks, and pelagic sharks (other than 
porbeagle or blue sharks). A final regulatory flexibility analysis 
(FRFA) conducted for the final rule for Amendment 2 to the Consolidated 
HMS FMP indicated that, as of October 2007, there were approximately 
231 directed commercial shark permit holders, 296 incidental commercial 
shark permit holders, and 269 Atlantic shark dealer permit holders, all 
of which are considered small entities according to the Small Business 
Administration's standard for defining a small entity (5 U.S.C. 
603(b)(3)). As of 2008, there were approximately 214 directed 
commercial shark permit holders, 285 incidental commercial shark permit 
holders, and 128 commercial shark dealers. The FRFA concluded that the 
economic impacts on these small entities, resulting from adjusting the 
quotas for under- or overharvests in subsequent years via proposed and 
final rulemaking, were expected to be minimal.
    However, the FRFA did expect negative economic impacts based on the 
new quotas and retention limits established in the final rule for 
Amendment 2 to the 2006 Consolidated HMS FMP. Amendment 2 to the 2006 
Consolidated HMS FMP estimated that, based on 2006 ex-vessel prices, 
vessels operating within the research fishery could make $437,963 in 
gross revenues from sandbar and non-sandbar LCS landings. Since 5 to 10 
vessels were anticipated to participate in the research fishery, NMFS 
estimated that the average gross revenues per vessel on sandbar shark 
and non-sandbar LCS landings would range from $87,593 (i.e., $437,963 / 
5 vessels) to $43,796 (i.e., $437,963 / 10 vessels). Based on the 
quotas established outside the shark research fishery, it was estimated 
that vessels operating outside the research

[[Page 63672]]

fishery could expect gross revenues of $516,285 in the Atlantic region 
and $1,273,269 in the Gulf of Mexico region from non-sandbar LCS 
landings, based on 2006 ex-vessel prices. In total, vessels operating 
within, and outside, of the research fishery were expected to have 
gross revenues of $2,227,517 in sandbar and non-sandbar LCS landings. 
This was a 55-percent reduction in gross revenues from sandbar sharks 
and non-sandbar LCS under the status quo (gross revenues based on 
directed and incidental permit holders' landings prior to the 
implementation of Amendment 2 to the 2006 Consolidated HMS FMP were 
$4,903,001).
    This proposed rule would not change the overall adjusted base 
annual non-sandbar LCS and sandbar shark quotas nor would it change the 
annual quotas for SCS, blue, porbeagle, or pelagic sharks (other than 
porbeagle or blue sharks) established in the final rule for Amendment 2 
to the 2006 Consolidated HMS FMP, or implement any new management 
measures not previously considered, and is not expected to increase 
fishing effort or protected species interactions. This proposed rule 
would adjust the quotas for each species/species complex based on any 
over- and/or underharvests from the 2008 Atlantic commercial shark 
fishing season consistent with 50 CFR 635.27(b)(1)(vii).
    Since the 2009 proposed quotas for non-sandbar LCS, sandbar sharks, 
SCS, blue sharks, porbeagle sharks, or pelagic sharks (other than 
porbeagle or blue sharks) would be the same as those implemented in the 
final rule for Amendment 2 to the 2006 Consolidated HMS FMP, there are 
no expected economic impacts to fishermen other than those already 
analyzed in Amendment 2 to the 2006 Consolidated HMS FMP. Thus, the 
Chief Counsel for Regulation at the Department of Commerce certified to 
the Chief Counsel for Advocacy at the Small Business Administration 
that this action would not have a significant economic impact on a 
substantial number of small entities beyond those considered in 
Amendment 2 to the 2006 Consolidated HMS FMP and its final rule (73 FR 
35778, corrected at 73 FR 40658).
    This proposed rule has been determined to be not significant for 
purposed of Executive Order 12866.

    Dated: October 21, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-25557 Filed 10-24-08; 8:45 am]
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