[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Rules and Regulations]
[Pages 79005-79008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30711]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 080723890-81590-02]
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: Final rule; fishing season notification.

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SUMMARY: This final rule establishes the annual 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). This final rule also establishes 
the opening date for the commercial Atlantic shark fisheries. This 
action is expected to have minimal negative impacts on commercial 
fishermen in the Atlantic commercial shark fishery as only a small 
overharvest occurred in the porbeagle shark fishery in 2008.

DATES: This final rule is effective on January 23, 2009. The 2009 
Atlantic commercial shark fishing season and quotas are provided in 
Table 1 under SUPPLEMENTARY INFORMATION.

ADDRESSES: Highly Migratory Species Management Division, 1315 East-West 
Highway, Silver Spring, Maryland 20910.

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 June 24, 2008, 
corrected at 73 FR 40658, July 15, 2008) implementing Amendment 2 to 
the 2006 Consolidated HMS FMP. That final rule established annual base 
quotas for SCS and pelagic

[[Page 79006]]

sharks and 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 for future years' adjusted quota 
calculations and redefined the regions in the shark fishery.
    As a result of that final rule, the Atlantic shark annual base 
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 adjusted base annual 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.
    The June 2008 final rule established a process of issuing a 
proposed and final rule for notification of fishing season and quotas. 
On October 27, 2008, NMFS published a proposed rule (73 FR 63668) 
announcing the fishing season for 2009 and the 2009 proposed quotas 
based on shark landings information as of September 15, 2008. One 
comment from the public was received on the proposed rule. This final 
rule serves as notification of the 2009 fishing season and 2009 quotas, 
based on shark landings updates as of November 15, 2008, pursuant to 50 
CFR 635.27(b)(1)(vii). This action does not change the annual base and 
adjusted base annual commercial quotas as established under Amendment 2 
to the 2006 Consolidated HMS FMP and its June 24, 2008 final rule.

Response to Comments

    Comments on the October 27, 2008 proposed rule (73 FR 63668) 
received during the public comment period are summarized below, 
together with NMFS's responses.
    Comment 1: Fishermen are not reporting accurate landings, so NMFS 
does not have accurate records for determining the next year's fishing 
quotas. NMFS should include an extra 40 percent in the landings to 
account for underreporting of catch by fishermen. Sandbar sharks are 
vanishing due the lack of management measures to protect this species.
    Response: NMFS relies on HMS dealer reports to monitor the shark 
quotas. However, NMFS also has scientific observer data from the shark 
research fishery that can be used to assess the accuracy of reported 
landings in dealer reports. In the future, as NMFS gathers more 
information in the shark research fishery, NMFS can determine whether 
or not underreporting is occurring and the appropriate approach to 
account for underreporting, as necessary. NMFS also uses scientific 
observer data in the stock assessments to verify, among other things, 
disposition of discards, interactions with protected resources, and 
fishing practices within the commercial shark fisheries. Through the 
NMFS observer program data, assessment scientists are able to account 
for non-reported mortality, such as sharks used for bait and dead 
discards of sharks.
    NMFS implemented the final rule for Amendment 2 to the 2006 
Consolidated HMS FMP on July 24, 2008 (73 FR 35778, June 24, 2008, 
corrected at 73 FR 40658, July 15, 2008). This final rule put in place 
a rebuilding plan for sandbar sharks, which includes a reduced quota 
for sandbar sharks that accounts for mortality of sandbar sharks in 
other fisheries as well as the directed shark fishery to ensure that 
the level of mortality for sandbar sharks remains below the total 
allowable catch recommended by the latest LCS stock assessment. This, 
in addition to other measures implemented under Amendment 2 to the 2006 
Consolidated HMS FMP, such as the establishment of a shark research 
fishery and the requirement that all sharks be offloaded with their 
fins naturally attached, will help rebuild this species.

Changes from the Proposed Rule

    1. At the time the proposed rule published, shark landings updates 
(through September 15, 2008) indicated there were no overharvests for 
any of the shark species/complexes in the 2008 fishing year. Thus, the 
proposed 2009 shark quotas were the annual base quotas and adjusted 
base annual quotas established in Amendment 2 to the 2006 Consolidated 
HMS FMP. However, on November 18, 2008, NMFS closed the porbeagle shark 
fishery as it had reached 116 percent (2.0 mt dw; 4,349 lb dw) of its 
quota. As of November 15, 2008, 2.0 mt dw were landed, which exceeds 
the 1.7 mt dw (3,748 lb dw) annual base porbeagle shark quota. 
Therefore, the 2009 annual commercial porbeagle quota will be reduced 
by 0.3 mt dw (601 lb dw) to account for this overharvest (1.7 mt dw 
annual base quota - 2.0 mt dw of 2008 landings = -0.3 mt dw 
overharvest). The 2009 adjusted annual commercial porbeagle quota will 
be 1.4 mt dw (3,147 lb dw) (1.7 mt dw annual base quota - 0.3 mt dw 
2008 overage = 1.4 mt dw 2009 adjusted annual quota).

Available Quotas

    The calculations and details for establishing the individual shark 
species/complexes quotas are described in the proposed rule (73 FR 
63668, October 27, 2008) and are not repeated here. The quotas for the 
2009 Atlantic commercial shark fishing season by species and species 
group are summarized in Table 1. If any additional quotas are exceeded 
between November 15, 2008 (the landings update used in this final 
rule), and December 31, 2008 (the end of the fishing season), the 
available 2009 quotas will be adjusted accordingly in a separate notice 
per 635.27(b)(1)(vii)(A), which states that overharvests will be 
adjusted for in the following fishing season. However, NMFS does not 
expect additional overharvests for the 2008 fishing year because there 
has not been a traditional shark fishery this late in the season in the 
past and because of the reduced trip limits imposed with the 
implementation of Amendment 2 to the 2006 Consolidated HMS FMP. Catch 
rates are also expected to decline as water temperatures decrease in 
the winter months and many shark species move farther offshore.
    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. In 2006 blacktip sharks in the Gulf of Mexico 
region were determined to not be overfished with no overfishing 
occurring. However, blacktip sharks currently are managed 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 base 
quotas or adjusted base annual quotas. Thus, with the exception of 
porbeagle sharks, the 2009 quotas will be equal to the base annual 
quotas

[[Page 79007]]

for SCS, blue sharks, and pelagic sharks other than porbeagle or blue 
sharks and the adjusted base annual quotas for sandbar sharks and non-
sandbar LCS as established under Amendment 2 to the 2006 Consolidated 
HMS FMP.

   Table 1. 2009 quotas for non-sandbar LCS, sandbar sharks, SCS, blue
  sharks, porbeagle sharks, and pelagic sharks other than porbeagle or
   blue sharks for the 2009 commercial shark fishing season. The 2009
     commercial shark fishing season will open on January 23, 2009.
------------------------------------------------------------------------
                                2008
                                Base       2008                    2009
   Species Group      Region   Annual   Landings\2\  Overharvest  Annual
                               Quota                               Quota
------------------------------------------------------------------------
Non-Sandbar Large    Gulf of  390.5    268.4         -            390.5
 Coastal Sharks\1\    Mexico   (860,8   (591,682 lb                (860,
                               96 lb    dw)                        896
                               dw)                                 lb
                                                                   dw)
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\1\Annual base quotas for these species/complexes are the quotas being
  implemented from July 24, 2008, until December 31, 2012.
\2\Landings are from January 1, 2008, until November 15, 2008, and are
  subject to change.
\3\All quotas and landings are dressed weight (dw), in metric tons (mt),
  unless specified otherwise.

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

    Since no overharvests of the non-sandbar LCS and sandbar shark 
quotas within the shark research fishery occurred during the 2008 
fishing year, pursuant to Amendment 2 to the 2006 Consolidated HMS FMP, 
the 2009 adjusted base annual quotas within the shark research fishery 
will be 37.5 mt dw (82,673 lb dw) for non-sandbar LCS and 87.9 mt dw 
(193,784 lb dw) for sandbar sharks.

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

    Since no overharvests of the non-sandbar LCS quota for the Gulf of 
Mexico region occurred during the 2008 fishing year, 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 will be 
390.5 mt dw (860,896 lb dw).

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

    Since no overharvests of the non-sandbar LCS quota for the Atlantic 
region occurred during the 2008 fishing year, pursuant to Amendment 2 
to the 2006 Consolidated HMS FMP, the 2009 adjusted base annual quota 
for non-sandbar LCS in the Atlantic region will be 187.8 mt dw (414,024 
lb dw).

4. 2009 Quotas for SCS and Pelagic Sharks

    Since no overharvests of small coastal sharks, blue sharks, and 
pelagic sharks other than porbeagle or blue sharks occurred during the 
2008 fishing year, pursuant to Amendment 2 to the 2006 Consolidated HMS 
FMP, the 2009 annual base quotas for small coastal sharks, blue sharks, 
and pelagic sharks other than porbeagle or blue sharks will be 454 mt 
dw (1,000,888 lb dw), 273 mt dw (601,856 lb dw), and 488 mt dw 
(1,075,856 lb dw), respectively.
    However, as of November 15, 2008, reported landings of porbeagle 
sharks was 2.0 mt dw (4,349 lb dw) (116 percent of the 2008 1.7 mt dw 
(3,748 lb dw) annual base quota). Therefore, to date, an overharvest of 
0.3 mt dw (601 lb dw) occurred during the 2008 fishing season (1.7 mt 
dw annual base quota - 2.0 mt dw 2008 landings = -0.3 mt dw of 
overharvest). Per 50 CFR 635.27(b)(1)(vii)(A), if the available quota 
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. Given the small overharvest 
of 0.3 mt dw (601 lb dw) in 2008 (16 percent of the annual base 
porbeagle quota), NMFS will deduct the entire 2008 overharvest from the 
2009 annual base commercial porbeagle quota. This results in a 2009 
adjusted annual commercial porbeagle quota of 1.4 mt dw (3,147 lb dw) 
(1.7 mt dw annual base quota - 0.3 mt dw 2008 overage = 1.4 mt dw 2009 
adjusted annual quota).

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, 
will open on January 23, 2009. 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 shark, porbeagle 
shark, or pelagic sharks other than porbeagle or blue sharks has 
reached, or is projected to reach, 80 percent of the available

[[Page 79008]]

quota. At that time, consistent with 50 CFR 635.28(b)(2), 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).

Classification

    This final 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 final 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 June 24, 2008, NMFS published a final rule (73 FR 35778, 
corrected at 73 FR 40658 on July 15, 2008) 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 base 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. As of November 2008, there were approximately 221 
directed commercial shark permit holders, 285 incidental commercial 
shark permit holders, and 108 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.
    This final rule will not change the adjusted base annual non-
sandbar LCS and sandbar shark quotas or the annual base 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 nor will it implement any new management measures not 
previously considered, and it is not expected to increase fishing 
effort or protected species interactions. This final rule will adjust 
the quotas for each species/species complex based on any overharvests 
from the 2008 Atlantic commercial shark fishing season consistent with 
50 CFR 635.27(b)(1)(vii). 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.
    As of November 15, 2008, reported landings of porbeagle sharks was 
2.0 mt dw (4,349 lb dw) (116 percent of the 2008 annual base quota of 
1.7 mt dw (3,748 lb dw)). Therefore, an overharvest of 0.3 mt dw (601 
lb dw) occurred during the 2008 fishing season. Per 50 CFR 
635.27(b)(1)(vii)(A), 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. This results in a 2009 adjusted annual 
commercial porbeagle quota of 1.4 mt dw (3,147 lb dw) (1.7 mt dw annual 
base quota - 0.3 mt dw 2008 overage = 1.4 mt dw 2009 adjusted annual 
quota). Based on 2007 ex-vessel prices of $0.66 per pound for porbeagle 
flesh and $13.84 per pound for fins, this will result in net economic 
impact of -$793.37 during the 2009 fishing season as the 2009 annual 
base commercial porbeagle quota will be reduced by 601 lb dw (0.3 mt 
dw) to account for the 2008 overharvest ($0.66 per pound x 570.9 pounds 
of porbeagle flesh + $13.84 per pound for fins x 30.1 pounds of 
porbeagle fins [assuming 5 percent of the dressed weight is fin weight] 
= $793.37). The net economic impact of approximately -$793.37 
represents a small fraction of the overall gross revenues for the 
Atlantic commercial shark fishery (approximately $8.1 million in 2006) 
and does not represent a significant negative economic impact.
    Since the other individual species/complexes' 2009 quotas will 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 at the proposed rule stage 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). NMFS provided prior notice and an 
opportunity for public comment on the proposed rule (73 FR 63668, 
October 27, 2008) to establish the 2009 Atlantic commercial shark 
quotas and fishing season.
    This final rule has been determined to be not significant for 
purposed of Executive Order 12866.

    Dated: December 18, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-30711 Filed 12-23-08; 8:45 am]
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