[Federal Register Volume 74, Number 207 (Wednesday, October 28, 2009)]
[Proposed Rules]
[Pages 55526-55535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25989]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 0906221072-91133-01]
RIN 0648-AX95


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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[[Page 55527]]

SUMMARY:  This proposed rule would adjust quotas and opening dates for 
the 2010 fishing season for sandbar sharks, non-sandbar large coastal 
sharks (LCS), small coastal sharks (SCS), and pelagic sharks based on 
any over- and/or underharvests experienced during the 2008 and 2009 
Atlantic commercial shark fishing seasons. The purpose of this proposed 
action is to provide advance notice of quotas and opening dates 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 and 2009 fishing seasons.

DATES: Written comments will be accepted until November 27, 2009. NMFS 
will hold three public hearings on this proposed rule on November 16 in 
Manteo, NC, November 18 in Belle Chasse, LA, and November 23 in 
Jupiter, FL to receive comments from fishery participants and other 
members of the public regarding this proposed rule.

ADDRESSES: The public hearings will be held at 407 Budleigh Street, 
Manteo, NC; 8398 Highway 23, Belle Chasse, LA; and 705 Military Trail, 
Jupiter, FL. You may submit comments, identified by 0648-AX95, 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 or Guy 
DuBeck
     Mail: 1315 East-West Highway, Silver Spring, MD 20910. 
Please mark the outside of the envelope ``Comments on Proposed Rule for 
2010 Atlantic Commercial Shark Fishing Season.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. 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 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 or Guy DuBeck 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 Act (Magnuson-
Stevens Act). The 2006 Consolidated HMS FMP and its amendments under 
the Magnuson-Stevens Act are implemented via regulations at 50 CFR part 
635.
    On June 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 two 
regions, the Atlantic 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 20.4' N. lat. and 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.
    As described below, in addition to establishing quotas, NMFS is 
also proposing several changes to the start of the 2010 shark fishing 
season. In Amendment 2 to the 2006 Consolidated HMS FMP, NMFS changed 
the fishing seasons in part to rebuild overfished shark stocks and 
prevent overfishing. NMFS originally determined that the reduced 
retention limits for non-sandbar LCS in Amendment 2 would result in a 
year-round fishery. A year-round commercial fishery was expected to 
give the North Atlantic fishery participants opportunity to catch the 
quota during the summer months when the sharks migrate northward and 
for all participants to be able to land sharks incidentally year-round 
as they target species in other fisheries.
    In 2009, the commercial shark fishing season opened on January 23, 
2009 (73 FR 79005, December 24, 2008), in the Gulf of Mexico (GOM) and 
the Atlantic regions for SCS, non-sandbar LCS and pelagic sharks. On 
June 6, 2009, the non-sandbar LCS fishing season closed in the GOM 
region (74 FR 26803, June 4, 2009) and on July 1, 2009 (74 FR 30479, 
June 26, 2009), the non-sandbar LCS fishing season closed in the 
Atlantic region. In the Atlantic region, due to the July 1, 2009, 
closing of the non-sandbar LCS fishery, the mid-Atlantic shark bottom 
longline (BLL) closure in Federal waters from January 1 - July 31, the 
state water closure in Virginia, Maryland, Delaware and New Jersey from 
May 15 - July 15, and the limited availability of non-sandbar LCS in 
northern Atlantic waters at the beginning of the year, the fishery 
participants from North Carolina north did not have a non-sandbar LCS 
fishing season in 2009. In the GOM region, due to the June 6, 2009, 
closure of the non-sandbar LCS fishery and the Louisiana state water 
closure from April 1 - June 30, many fishery participants in the GOM 
did not have the opportunity to participate in the 2009 GOM non-sandbar 
LCS fishery. As such, NMFS has received requests from constituents that 
NMFS should consider the delay of the 2010 non-sandbar LCS fishing 
season until July to allow for more equitable shark fishing 
opportunities in 2010. Because the intent of Amendment 2 was to have 
the non-sandbar LCS quota available throughout the entire year, and 
given that this did not happen in 2009, NMFS proposes delaying the 
start of the 2010 shark fishery, as explained below. In addition to 
this rulemaking, NMFS is also considering future rulemaking to adjust 
the retention limits on a fishery-wide basis in order to meet the 
original intent of Amendment 2 of having the non-sandbar LCS quota last 
the entire year.
    The other proposed change to the 2010 shark fishing season results 
from the implementation of draft Amendment 3 to the 2006 Consolidated 
HMS FMP (73 FR 36392, July 24, 2009). In Amendment 3, NMFS proposes 
measures to establish new non-blacknose SCS and blacknose shark quotas 
in order to rebuild blacknose sharks and end overfishing of this 
species and to establish a mechanism for implementing annual catch 
limits (ACLs) and accountability measures (AMs). In this current 
action, NMFS also proposes delaying the opening of the 2010 SCS fishing 
season to allow for the implementation of Amendment 3. A delay would 
ensure the SCS fishery

[[Page 55528]]

opens under the measures that may be established in Amendment 3, which 
would help in the rebuilding of blacknose sharks that are currently 
overfished and experiencing overfishing. In addition, for stocks that 
were determined to be overfished before July 12, 2009, ACLs must be 
established before the 2010 fishing year. As such, a delay would allow 
time for the establishment of ACLs before the start of the 2010 fishing 
season, which is consistent with the Magnuson-Stevens Act.

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 quota in that region or in 
the research fishery for 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 are included 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 2009 Atlantic 
commercial shark fishing season will be applied to the 2010 annual 
quotas or adjusted base quotas. Thus, the 2010 proposed quotas would be 
equal to the base annual quota for 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 occurred in the 2008 and 2009 fishing 
seasons. The 2010 proposed SCS quota and possibly the SCS complex 
quota, could change depending on the measures established in the final 
rule for implementing Amendment 3 to the Consolidated HMS FMP.

2010 Proposed Quotas

    This rule proposes minor changes to the overall adjusted base and 
annual commercial quotas due to overharvests in 2008 and 2009. The 
proposed 2010 quotas by species and species group are summarized in 
Table 1.
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TP28OC09.010


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[GRAPHIC] [TIFF OMITTED] TP28OC09.011

BILLING CODE 3510-22-C

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    Based on dealer reports received as of September 15, 2009, only the 
non-sandbar LCS quota in the Atlantic region was exceeded during the 
2009 Atlantic commercial shark fishing season. The 2010 proposed quotas 
for the respective shark complexes/species are subject to change in the 
final rule for this action, based on the final Amendment 3 to the 
Consolidated HMS FMP and any overharvests in the 2009 season revealed 
once all of the 2009 landings data has been received and analyzed. In 
the final rule, NMFS will adjust the quotas based on dealer reports 
received as of October 30, 2009. All dealer reports that are received 
by NMFS after that date will be used to adjust the 2011 quotas, as 
appropriate.

1. Proposed 2010 Quotas for Non-sandbar LCS and Sandbar Sharks Within 
the Shark Research Fishery

    The 2010 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 would 
not change any of the overall adjusted base commercial quotas.
    Within the shark research fishery, as of September 15, 2009, 
preliminary reported landings of non-sandbar LCS were at 98.7 percent 
(37 mt dw), and sandbar shark reported landings were at 90.6 percent 
(79.7 mt dw). These reported landings do not exceed the 2009 quota. 
Therefore, based on preliminary estimates and consistent with the 
current regulations at 50 CFR 635.27(b)(1)(vii), the 2010 proposed 
quotas do not need to be reduced based on any overharvests.
    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 2010 quotas. Therefore, the 2010 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 
dw) and 87.9 mt dw (193,784 lb dw), respectively).

2. Proposed 2010 Quotas for the Non-sandbar LCS in the Gulf of Mexico 
Region

    The 2010 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, 
2009, preliminary reported landings were at 81.2 percent (317.2 mt dw) 
for non-sandbar LCS in the Gulf of Mexico region. These reported 
landings do not exceed the 2009 quota. However, since the status of 
this complex is unknown, any underharvest would not be applied to the 
2010 adjusted base annual quota. Therefore, the 2010 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).

3. Proposed 2010 Quotas for the Non-sandbar LCS in the Atlantic Region

    The 2010 adjusted base annual quota for non-sandbar LCS in the 
Atlantic region would be 174.8 (385,364 lb dw). As of September 15, 
2009, preliminary reported landings were at 106.9 percent (200.8 mt dw) 
for non-sandbar LCS in the Atlantic region. These landings exceed the 
2009 quota by 13 mt dw (28,660 lb dw). As such, the overharvest would 
be applied to the 2010 adjusted base annual quota. Therefore, the 2010 
proposed quota would be the adjusted base annual quota for non-sandbar 
LCS in the Atlantic region or 174.8 (385,364 lb dw) (187.8 mt dw annual 
base quota - 13 mt dw of 2009 overage = 174.8 mt dw 2010 adjusted 
annual quota).

4. Proposed 2010 Quotas for SCS and Pelagic Sharks

    The 2010 annual commercial quotas for small coastal sharks, blue 
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), and 488 mt dw 
(1,075,856 lb dw), respectively. This proposed rule would not change 
the overall annual commercial quotas for porbeagle sharks and SCS. 
However, NMFS has proposed changes to the SCS quota in Amendment 3 (73 
FR 36392, July 24, 2009). The quotas established in Amendment 3 would 
supersede the quotas established in this rule. The change for the 2010 
porbeagle shark quota, which accounts for the additional overharvest 
experienced during the 2008 fishing season, would be 1.5 mt dw (3,307 
lb dw).
    As of December 31, 2008, the final reported landings of porbeagle 
sharks were 2.2 mt dw (4,471 lb dw) (127 percent of the 2008 1.7 mt dw 
(3,748 lb dw) annual base quota). In the final rule establishing the 
2009 quotas (73 FR 79005, December 29, 2008), NMFS accounted for an 
overharvest of porbeagle sharks of 0.3 mt dw (601 lb dw). That final 
rule used data that was reported as of November 15, 2008. Between that 
date and December 31, 2008, an additional 0.2 mt dw was reported 
landed. As such, this additional overharvest of 0.2 mt dw (441 lb dw) 
is proposed to be deducted from the 2010 porbeagle shark quota. 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 that the additional small overharvest of 
0.2 mt dw (441 lb dw) was not accounted for in the 2009 quota (12 
percent of the annual base porbeagle quota), NMFS is proposing to 
deduct the additional 2008 overharvest from the 2010 annual base 
commercial porbeagle quota. The 2010 adjusted annual commercial 
porbeagle quota would be 1.5 mt dw (3,307 lb dw) (1.7 mt dw annual base 
quota - 0.2 mt dw 2008 overage = 1.5 mt dw 2010 adjusted annual quota).
    As of September 15, 2009, preliminary reported landings of SCS, 
blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle 
and blue sharks) were at 39.7 percent (180.1 mt dw), 0.5 percent (1.4 
mt dw), 12.2 percent (0.2 mt dw), and 14.3 percent (69.7 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 2010 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), 1.5 mt dw (3,307 lb dw), 
and 488 mt dw (1,075,856 lb dw), respectively).

Proposed Fishing Season Notification for the 2010 Atlantic Commercial 
Shark Fishing Season

    The 2010 Atlantic commercial shark fishing season for the shark 
research, 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 
on the effective date of the final rule for this action. NMFS is 
proposing different opening dates for the SCS and the Gulf of Mexico 
and Atlantic non-sandbar LCS seasons. NMFS considered two alternatives 
for opening the SCS fishing season: alternative A1, open the 2010 SCS

[[Page 55532]]

sharks fishing season on or about January 1, 2010 (No Action 
alternative) and alternative A2, open the 2010 SCS fishing season on 
the effective date of the final rule for Amendment 3 (Preferred 
alternative).
    Alternative A1, the no action alternative, would open the 2010 SCS 
fishery on the effective date of the final rule for this current 
action, which is anticipated to be on or about January 1, 2010. 
Alternative A1 would not allow time for Amendment 3 to be implemented, 
which would cause blacknose sharks to continue to be overfished.
    Alternative A2, the preferred alternative, would keep the SCS 
fishery closed until the effective date of the final rule for Amendment 
3. This delayed opening would allow the SCS fishery to open under the 
quotas that would be finalized in Amendment 3, which would help rebuild 
blacknose sharks sooner than under the No Action Alternative. 
Alternative A2 would also allow the mechanism for establishing ACLs and 
AMs to be finalized before opening the SCS fishery consistent with the 
Magnuson-Stevens Act. Specifically, for stocks that were determined to 
be overfished before July 12, 2009, ACLs must be established before the 
2010 fishing year. A delay in the 2010 SCS fishing season would allow 
ACLs to be established under Amendment 3 to be implemented before the 
start of the fishing season.
    In 2009, the non-sandbar LCS fishing season did not remain open 
year-round as expected. Because of this, many fishermen in both the 
Gulf of Mexico and Atlantic did not have an opportunity to participate 
in the non-sandbar LCS fishery. NMFS considered three alternatives to 
address this situation while NMFS assesses the necessity of keeping the 
shark season open year-round, which was the intent of Amendment 2. 
These alternatives are: alternative B1, open the 2010 LCS on or about 
January 1, 2010 (No Action alternative); alternative B2, open the 2010 
non-sandbar LCS fishery in the Atlantic region on July 15, 2010, and 
open the 2010 non-sandbar LCS fishery in the Gulf of Mexico region on 
January 1, 2010; and alternative B3, open the 2010 non-sandbar LCS 
fishery in the Atlantic and Gulf of Mexico regions on July 15, 2010 
(Preferred Alternative).
    Alternative B1, the no action alternative, would open the 2010 non-
sandbar LCS fishery on the effective date of the final rule for this 
current action. Alternative B1 may not allow for the equitable 
distribution of the non-sandbar LCS quotas among fishery participants 
in all states of the Atlantic and Gulf of Mexico regions if catch 
patterns similar to 2009 are seen in 2010.
    Alternative B2 would open the 2010 non-sandbar LCS fishery in the 
Atlantic region on July 15, 2009, and open the 2010 non-sandbar LCS 
fishery in the Gulf of Mexico region on the effective date of the final 
rule for this current action. This alternative would allow fishermen in 
the Gulf of Mexico region to have access to the non-sandbar LCS quotas 
at the beginning of 2010 when non-sandbar LCS are present in waters off 
the Gulf of Mexico. Gillnet fishermen in the Gulf of Mexico region 
would be able to harvest non-sandbar LCS with gillnets prior to the 
implementation of Amendment 3, which proposes to prohibit landing 
sharks with gillnet gear. In addition, alternative B2 would allow 
fishermen in the North Atlantic to have a fishing opportunity for non-
sandbar LCS in 2010 with the delayed opening in the Atlantic region. 
Alternative B2 may not allow for the equitable distribution of the non-
sandbar LCS quota in the Gulf of Mexico region due to state water 
closures off the coast of Louisiana from April 1 through June 30.
    Alternative B3, the preferred alternative, would open the non-
sandbar LCS fishery in the Gulf of Mexico and the Atlantic regions on 
July 15, 2010. In 2009, the non-sandbar LCS fishery in the Atlantic 
region was only open approximately five and a half months, which did 
not allow fishery participants in the North Atlantic to have a fishing 
season as the quota was taken before these sharks moved northward into 
their waters. In addition, fishermen in the North Atlantic were also 
limited in their fishing opportunities due to state and Federal water 
closures. In the Gulf of Mexico, in 2009, the non-sandbar fishery was 
open for approximately four months, and many fishermen experienced 
state water closures during this time frame and were limited in their 
ability to participate in the GOM non-sandbar LCS fishery. Thus, 
delaying the start of the 2010 non-sandbar LCS fishery in both the 
Atlantic and Gulf of Mexico regions would provide equitable fishing 
opportunities among shark fishery participants in all states to catch 
the non-sandbar LCS quota.
    The preferred alternatives, A2 and B3, which would delay the SCS 
and non-sandbar LCS fishing seasons, could result in direct negative 
economic impacts on shark fishermen who would not be able to fish for 
SCS until Amendment 3 is implemented or for non-sandbar LCS until July 
15, 2010. In addition, shark dealers and other entities that deal with 
shark products could experience negative economic impacts as SCS and 
non-sandbar LCS products would not be available at the beginning of the 
season. Gillnet fishermen could also experience negative economic 
impacts as they would not be able to fish for sharks prior to the 
implementation of Amendment 3 in 2010, and may not be able to fish for 
shark with gillnets after the implementation of Amendment 3 in 2010, 
depending on the final management measures implemented under Amendment 
3. The preferred alternatives could result in direct negative social 
impacts as fishermen would have to fish in other fisheries where they 
hold permits, to make up for lost SCS and non-sandbar LCS revenues 
during the beginning of the 2010 fishing season and indirect negative 
social impacts on shark dealers and other entities that deal with shark 
products as they may have to diversify during the beginning of the 
season when SCS and non-sandbar LCS shark products would not be 
available. However, NMFS currently prefers alternatives A2 and B3 
because fishermen in the North Atlantic and portions of the Gulf of 
Mexico, who had very limited access to the 2009 SCS and non-sandbar LCS 
quotas, could experience direct positive economic impacts as they would 
have access to the SCS and non-sandbar LCS quotas in 2010. Delaying the 
2010 SCS fishing season under preferred alternative A2 could also allow 
for the rebuilding of blacknose sharks to begin sooner than under the 
no action alternative. Thus, delaying the SCS and non-sandbar LCS 
seasons under the preferred alternatives would allow for a more 
equitable distribution of the quotas among constituents in all regions, 
which was the original intent of Amendment 2, and would allow for the 
fastest rebuilding of blacknose sharks of all the alternatives 
considered in this rulemaking.
    All of the shark fisheries would remain open until December 31, 
2010, unless NMFS determines that the fishing season landings for 
sandbar shark, non-sandbar LCS, blacknose, non-blacknose 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

[[Page 55533]]

until NMFS announces, via a notice in the Federal Register, that 
additional quota is available, the fishery for the shark species group 
and, for non-sandbar LCS, region would remain closed, even across 
fishing years, consistent with 50 CFR Sec.  635.28(b)(2).

Request for Comments

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax. Comments may also be submitted at a 
public hearing (see Public Hearings and Special Accommodations below). 
NMFS solicits comments on this proposed rule by November 27, 2009 (see 
DATES and ADDRESSES). NMFS will hold three public hearings for this 
proposed rule. These hearings will be physically accessible to people 
with disabilities. Requests for sign language interpretation or other 
auxiliary aids should be directed to Gu DuBeck at (301) 713-2347 at 
least 7 days prior to the hearing date. The public is reminded that 
NMFS expects participants at the public hearings to conduct themselves 
appropriately. At the beginning of each public hearing, a 
representative of NMFS will explain the ground rules (e.g., alcohol is 
prohibited from the hearing room; attendees will be called to give 
their comments in the order in which they registered to speak; each 
attendee will have an equal amount of time to speak; and attendees 
should not interrupt one another). The NMFS representative will attempt 
to structure the meeting so that all attending members of the public 
will be able to comment, if they so choose, regardless of the 
controversial nature of the subject(s). Attendees are expected to 
respect the ground rules, and, if they do not, they will be asked to 
leave the hearing.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    In compliance with Section 603 of the Regulatory Flexibility Act 
(RFA), NMFS has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for this proposed rule to analyze the impacts of delaying the 
2010 SCS and non-sandbar LCS fishing seasons as adjustments to the non-
sandbar LCS and porbeagle quotas based on overharvests from the 
previous fishing season have already been analyzed in Amendment 2 to 
the 2006 Consolidated HMS FMP. The IRFA analyzes the anticipated 
economic impacts of the preferred actions and any significant 
alternatives to the proposed rule that could minimize economic impacts 
on small entities. A summary of the IRFA is below. The full IRFA and 
analysis of social and economic impacts are available from NMFS (see 
ADDRESSES).
    In compliance with section 603(b)(1) of the Regulatory Flexibility 
Act, the purpose of this proposed rulemaking is, consistent with the 
Magnuson-Stevens Act, to adjust the 2010 proposed quotas for non-
sandbar LCS, sandbar sharks, SCS, blue sharks, porbeagle sharks, or 
pelagic sharks (other than porbeagle or blue sharks) based on 
overharvests from the previous fishing year. These adjustments are 
being implemented according to the regulations implemented in the final 
rule for Amendment 2 to the 2006 Consolidated HMS FMP. Thus, NMFS would 
expect few, if any, economic impacts to fishermen other than those 
already analyzed in Amendment 2 to the 2006 Consolidated HMS FMP based 
on the quota adjustments. In addition, NMFS is considering delaying the 
2010 non-sandbar LCS shark fishery season in the Gulf of Mexico and 
Atlantic regions to allow for a more equitable distribution of the 
available quotas among constituents as well as delay the opening of the 
2010 SCS fishing season to allow for the implementation of Amendment 3, 
which would implement new blacknose and non-blacknose SCS quotas to 
rebuild the blacknose shark stock and end overfishing of this species. 
While there are direct negative economic impacts associated with the 
proposed measures, delaying the opening of the 2010 SCS, and non-
sandbar LCS fishing seasons could ensure that North Atlantic fishermen 
have access to the 2010 quotas and will allow for more equitable access 
to the quotas by all fishery participants.
    In compliance with section 603(b)(2) of the Regulatory Flexibility 
Act, the objectives of this proposed rulemaking are to: (1) adjust the 
annual quotas for non-sandbar LCS in the Atlantic region and porbeagle 
sharks due to minor overharvests in 2008 and 2009; (2) delay of the 
2010 non-sandbar LCS fishing season to allow for more equitable shark 
fishing opportunities in 2010; and, (3) delay the opening of the 2010 
SCS fishing season to allow for the implementation of Amendment 3, 
which would implement new blacknose and non-blacknose SCS quotas to 
rebuild the blacknose shark stock and end overfishing of this species. 
A delay would also allow time for the establishment of ACLs before the 
start of the 2010 fishing season.
    Section 603(b)(3) requires Federal agencies to provide an estimate 
of the number of small entities to which the rule would apply. NMFS 
considers all HMS permit holders to be small entities because they 
either had average annual receipts less than $4.0 million for fish-
harvesting, average annual receipts less than $6.5 million for charter/
party boats, 100 or fewer employees for wholesale dealers, or 500 or 
fewer employees for seafood processors. These are the Small Business 
Administration (SBA) size standards for defining a small versus large 
business entity in this industry.
    The commercial shark fishery is comprised of fishermen who hold a 
shark directed or incidental limited access permits (LAP) and the 
related industries including processors, bait houses, and equipment 
suppliers, all of which NMFS considers to be small entities according 
to the size standards set by the SBA. The proposed rule would apply to 
the approximately 223 directed commercial shark permit holders, 279 
incidental commercial shark permit holders, and 100 commercial shark 
dealers as of March 18, 2009. Based on the 2008 ex-vessel price, the 
2010 Atlantic shark commercial baseline quota could result in revenues 
of $11,987,348. The adjustment due to the overharvests would result in 
$555 loss in revenues in porbeagle fishery and $3,306 loss in revenue 
in the non-sandbar LCS fishery. These revenues are similar to the gross 
revenues analyzed in Amendment 2 to the 2006 Consolidated HMS FMP.
    This proposed rule does not contain any new reporting, 
recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). 
Similarly, this proposed rule would not conflict, duplicate, or overlap 
with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, 
dealers, and managers in these fisheries must comply with a number of 
international agreements, domestic laws, and other FMPs. These include, 
but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas 
Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal 
Protection Act, the Endangered Species Act, the National Environmental 
Policy Act, the Paperwork Reduction Act, and the Coastal Zone 
Management Act. NMFS does not believe that the new regulations proposed 
to be implemented would duplicate, overlap, or conflict with any 
relevant regulations, Federal or otherwise.
    Under section 603(c), agencies are required to describe any 
alternatives to the proposed rule which accomplish the stated 
objectives and which minimize any significant economic impacts. These 
impacts are discussed below and in Supplemental Environmental 
Assessment for the proposed action.

[[Page 55534]]

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: (1) establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) clarification, 
consolidation, or simplification of compliance and reporting 
requirements under the rule for such small entities; (3) use of 
performance rather than design standards; and, (4) exemptions from 
coverage of the rule for small entities.
    In order to meet the objectives of this proposed rule, consistent 
with Magnuson-Stevens Act and the Endangered Species Act (ESA), NMFS 
cannot exempt small entities or change the reporting requirements only 
for small entities because all the entities affected are considered 
small entities. Thus, there are no alternatives discussed that fall 
under the first and fourth categories described 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. Thus, there are no 
alternatives considered under the third category. As described below, 
NMFS analyzed several different alternatives in this proposed 
rulemaking and provides rationale for identifying the preferred 
alternative to achieve the desired objective.
    The alternatives considered and analyzed have been grouped into two 
major categories. These categories include SCS and non-sandbar LCS. 
Under the SCS category, the alternatives include: (A1) allow the 2010 
SCS fishing season to open upon the effective date of the final rule 
for the 2010 Atlantic shark specifications; and, (A2) open the 2010 SCS 
fishing season on the effective date of the final rule for Amendment 3 
to the Consolidated HMS FMP. Under the non-sandbar LCS category, the 
alternatives include: (B1) allow the 2010 non-sandbar LCS fishery in 
the Atlantic and Gulf of Mexico regions to open upon the effective date 
of the final rule for the 2010 Atlantic shark specifications; (B2) open 
the 2010 non-sandbar LCS fishery in the Atlantic region on July 15, 
2009 and open the 2010 non-sandbar LCS fishery in the Gulf of Mexico 
region upon the effective date of the final rule for the 2010 Atlantic 
shark specifications; and, (B3) Open the 2010 non-sandbar LCS fishery 
in the Atlantic and Gulf of Mexico regions on July 15, 2009.
    The potential impacts these alternatives may have on small entities 
have been analyzed and are discussed below. The preferred alternatives 
include A2 and B3. A summary of the analyses follows. The economic 
impacts that would occur under these preferred alternatives were 
compared with the other alternatives to determine if economic impacts 
to small entities could be minimized while still accomplishing the 
stated objectives of this rule.
    The proposed changes to the opening dates for the SCS and non-
sandbar LCS were analyzed for each proposed alternative. Under 
alternative A1, the No Action alternative, NMFS would not delay the 
opening of the 2010 SCS fishing season and there would be no additional 
economic impacts to directed and incidental shark permit holders that 
were not analyzed in Amendment 2. In addition, under the No Action 
alternative, gillnet fishermen would be able to harvest SCS with 
gillnets until the implementation of Amendment 3, depending on what 
management measures are finalized in Amendment 3. The annual quota for 
SCS of 454 mt dw (1,000,888 lb dw) would be available upon the 
effective date of the final rule for the 2010 Atlantic shark 
specifications to fishermen in all regions of the Atlantic, Gulf of 
Mexico, and Caribbean Sea. Based on the analysis in the Draft 
Environmental Impact Statement (DEIS) for draft Amendment 3, the 
average annual gross revenues from 2004 through 2007 from all SCS meat 
and fins was $833,634. However, fishermen would most likely not harvest 
the entire current SCS quota of 454 mt dw and realize these gross 
revenues by the time the final rule for Amendment 3 is implemented in 
2010.
    Depending on the level of SCS harvest prior to the implementation 
of Amendment 3, once Amendment 3 is implemented, there may be no non-
blacknose SCS and blacknose shark quota available for the rest of 2010 
due to the reduced quotas proposed in draft Amendment 3. Any SCS 
overharvests that occur prior to Amendment 3 implementation would lower 
the quotas for the 2011 fishing season and create more severe economic 
losses in 2011. Finally, due to the availability of SCS later in the 
year in the waters off the North Atlantic, fishermen in the North 
Atlantic would likely not have a SCS fishing season in 2010. Given 
this, NMFS does not prefer alternative A1 at this time.
    Under alternative A2, NMFS would delay the start of the 2010 SCS 
fishing season until implementation of the final rule for Amendment 3. 
There may be economic losses associated with the delay in the season, 
especially for fishermen in the southeast Atlantic and Gulf of Mexico 
that would have access to SCS at the beginning of 2010 and rely on SCS 
gross revenues at the beginning of the season. Depending on the quotas 
implemented under Amendment 3 for blacknose shark and non-blacknose 
SCS, economic losses could range from $126,174 to $172,197 for 
blacknose sharks and $502,145 to $661,513 for non-blacknose SCS. 
Depending on the final measures implemented under Amendment 3, gillnet 
fishermen could lose gross revenues from lost SCS fishing opportunities 
in 2010. Estimated losses for shark gillnet fishermen could be between 
$90,059 to $90,501 for blacknose sharks and $275,008 to $287,427 for 
non-blacknose SCS. However, these losses are independent of this 
proposed action and were fully analyzed in the DEIS for draft Amendment 
3. In addition, shark dealers and other entities that deal with shark 
products could experience negative economic impacts as SCS products 
would not be available at the beginning of the season. This would be 
most prevalent in areas of the southeast Atlantic and Gulf of Mexico 
where SCS are available early in the fishing season. The delay in the 
SCS fishing seasons could causes changes in ex-vessel prices. From 2004 
through 2008, the average ex-vessel price of SCS meat in January is 
approximately $0.58, whereas the average ex-vessel price in mid- to 
late-Spring is $0.69. Fin prices are not reported by species. As such, 
the ex-vessel price data for shark fins is the same for SCS and LCS. 
The average price for fins in January is $16.36. When the SCS fishery 
opens in mid- to late-Spring, the average price for fins would be 
$7.35.
    Delaying the 2010 SCS fishing season until the implementation of 
Amendment 3 would allow the blacknose shark stock to rebuild as quickly 
as possible, and would translate into higher SCS quotas with higher 
associated gross revenues in the shortest time period possible. In 
addition, since both blacknose sharks and non-blacknose SCS are present 
in waters off the North Atlantic later in the year, delaying the 
opening of the 2010 SCS fishing season could help ensure that North 
Atlantic fishermen have access to the non-blacknose SCS and blacknose 
shark quotas implemented under Amendment 3, allowing for more equitable 
access to the quotas by all constituents. Thus, while there are direct 
negative economic impacts

[[Page 55535]]

associated with alternative A2, NMFS prefers this alternative at this 
time.
    Under alternative B1, the No Action alternative, NMFS would not 
delay the opening of the 2010 non-sandbar LCS fishing seasons and there 
would be no additional economic impacts to directed and incidental 
shark permit holders that were not previously analyzed under Amendment 
2. However, one of the main objectives of Amendment 2 was to allow for 
a year-round shark fishery in the Atlantic and Gulf of Mexico regions 
to help reduce discards of sharks and allow an opportunity to fishermen 
in all regions to be able to harvest the available quota. Alternative 
B1 would likely not meet this objective if the 2010 catches and catch 
rates are similar to 2009. Therefore, NMFS does not prefer this 
alternative at this time.
    Under alternative B2, NMFS would delay the opening of the non-
sandbar LCS fishery in the Atlantic region until July 15, 2009, but 
would open the non-sandbar LCS fishery in the Gulf of Mexico region 
upon the effective date of the final rule for the 2010 Atlantic shark 
specifications. Alternative B2 could result in negative economic 
impacts to fishermen in the southeast Atlantic if those fishermen 
depend on shark revenues early in the shark fishing season as they 
would not be able to land non-sandbar LCS when non-sandbar LCS would be 
present in waters off the southeast Atlantic. In addition, alternative 
B2 could result in negative economic impacts to gillnet fishermen in 
the Atlantic region who would potentially not be able to harvest non-
sandbar LCS with gillnets in 2010, depending on final management 
measures implemented under Amendment 3. However, under alternative B2, 
fishermen in the North Atlantic would have fishing opportunities for 
non-sandbar LCS in 2010 as was the intent of Amendment 2. The non-
sandbar LCS quota in the Atlantic region and its associated gross 
revenues of an estimated $381,525 based on 2008 ex-vessel prices would 
be more equitably distributed among Atlantic states by delaying the 
opening of the non-sandbar LCS fishery until July 15, 2009, under 
alternative B2.
    The economic impacts of alternative B2 in the Gulf of Mexico region 
would be the same as analyzed under Amendment 2. In addition, gillnet 
fishermen in the Gulf of Mexico region could harvest non-sandbar LCS 
with gillnets prior to the implementation of Amendment 3, which may 
prohibit the landing of sharks with gillnet gear. However, state waters 
off Louisiana are closed to large coastal shark fishing from April 1 
through June 30 of each year. During 2009, the non-sandbar LCS fishery 
closed on June 6, 2009. Thus, allowing the Federal non-sandbar LCS 
fishery in the Gulf of Mexico to be open at the beginning of the year 
in 2010 may result in negative economic impacts for Louisiana State 
fishermen if the non-sandbar LCS quota is harvested before the re-
opening of Louisiana state waters in 2010. Therefore, NMFS does not 
prefer alternative B2 at this time.
    Under alternative B3, NMFS would delay the opening of the non-
sandbar LCS fishery in the Atlantic and Gulf of Mexico regions until 
July 15, 2009. Alternative B3 could result in negative economic impacts 
to fishermen in the southeast Atlantic and Gulf of Mexico if those 
fishermen depend on shark revenues early in the shark fishing season as 
they would not be able to land non-sandbar LCS when non-sandbar LCS 
would be present in waters off these regions. In addition, alternative 
B3 could result in negative economic impacts to gillnet fishermen in 
the Atlantic region who may not be able to harvest non-sandbar LCS with 
gillnets during 2010, depending on final management measures 
implemented under Amendment 3. Based on the analysis in the DEIS for 
draft Amendment 3, this could result in lost non-sandbar LCS revenues 
of $106,479 to $109,479 for gillnet fishermen. Also, shark dealers and 
other entities that deal with shark products could experience negative 
economic impacts as non-sandbar LCS products would not be available at 
the beginning of the season. This would be most prevalent in areas of 
the southeast Atlantic and Gulf of Mexico where non-sandbar LCS are 
available early in the fishing season. The delay in the non-sandbar LCS 
fishing seasons could causes changes in ex-vessel prices. From 2004 
through 2008, the average ex-vessel price of LCS meat in January is 
approximately $0.57, while the average ex-vessel price in July is 
$0.48. The average price for fins in January is $16.36. When the LCS 
fishery opens in July, the average price for fins would be $19.06.
    However, under alternative B3, fishermen in the North Atlantic 
would have fishing opportunities for non-sandbar LCS in 2010 as was the 
intent of Amendment 2. The non-sandbar LCS quota in the Atlantic region 
and its associated gross revenues of an estimated $381,525, based on 
2008 ex-vessel prices, would be more equitably distributed among 
Atlantic states by delaying the opening of the non-sandbar LCS fishery 
until July 15, 2009, under alternative B3. In addition, state waters 
off Louisiana are closed to LCS fishing from April 1 through June 30 of 
each year. Therefore, opening the Federal non-sandbar LCS fishery in 
the Gulf of Mexico on July 15, 2010, may allow for a more equitable 
distribution of the non-sandbar LCS quota in the Gulf of Mexico region, 
estimated to be worth $839,376 based on 2008 ex-vessel prices. Given 
alternative B3 helps to meet the original intent of Amendment 2 and 
would allow fishermen in all regions to have more reasonable access to 
the available non-sandbar LCS quotas, NMFS prefers alternative B3 at 
this time.

    Dated: October 23, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-25989 Filed 10-27-09; 8:45 am]
BILLING CODE 3510-22-S