[Federal Register Volume 76, Number 210 (Monday, October 31, 2011)]
[Proposed Rules]
[Pages 67121-67127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28083]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110913585-1625-01]
RIN 0648-BB36


Atlantic Highly Migratory Species; 2012 Atlantic Shark Commercial 
Fishing Season

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 establish opening dates and adjust 
quotas for the 2012 fishing season for the Atlantic commercial shark 
fisheries. Quotas would be adjusted based on any over- and/or 
underharvests experienced during the 2010 and 2011 Atlantic commercial 
shark fishing seasons. In addition, NMFS proposes season openings based 
on previously implemented adaptive management measures to provide, to 
the extent practicable, fishing opportunities for commercial shark 
fishermen in all regions and areas. The proposed measures could affect 
fishing opportunities for commercial shark

[[Page 67122]]

fishermen in the northwestern Atlantic, including the Gulf of Mexico 
and Caribbean.

DATES: Written comments will be accepted until November 30, 2011.

ADDRESSES: You may submit comments on this document, identified by 
0648-BB36, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter 0648-BB36 in the 
keyword search. Locate the document you wish to comment on from the 
resulting list and click on the ``Submit a Comment'' icon on the right 
of that line.
     Mail: Submit written comments to 1315 East-West Highway, 
Silver Spring, MD 20910. Please mark the outside of the envelope 
``Comments on the Proposed Rule to Establish Quotas and Opening Dates 
for the 2012 Atlantic Shark Commercial Fishing Season.''
     Fax: (301) 427-8503, Attn: Karyl Brewster-Geisz, Guy 
DuBeck, or Jennifer Cudney.
     Instructions: Comments must be submitted by one of the 
above methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will 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). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic commercial shark fisheries are managed under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). The 2006 Consolidated HMS Fishery 
Management Plan (FMP) and its amendments under the Magnuson-Stevens Act 
are implemented by regulations at 50 CFR part 635. For the Atlantic 
commercial shark fisheries, the 2006 Consolidated HMS FMP and its 
amendments established, among other things, commercial quotas for 
species and species complexes, accounting measures for under- and 
overharvests for the shark fisheries, and adaptive management measures 
such as flexible opening dates for the fishing season and inseason 
adjustments to shark trip limits, which provide flexibility in 
management in the furtherance of equitable fishing opportunities, to 
the extent practicable, for commercial shark fishermen in all regions 
and areas.

Accounting for Under- and Overharvests

    Consistent with Sec.  635.27(b)(1)(i)(A), if the available non-
sandbar Large Coastal Shark (LCS) quota in a particular region or in 
the research fishery 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 5 years, in the specific region or 
research fishery where the overharvest occurred. If the available quota 
for sandbar sharks, blacknose sharks, non-blacknose SCS, blue sharks, 
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 
quota 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 5 years. If the blue shark 
quota is exceeded, NMFS will deduct an amount equivalent to the 
overharvest(s) from the following fishing season quota or, depending on 
the level of overharvest(s), deduct an amount equivalent to the 
overharvest(s) spread over a number of subsequent fishing years to a 
maximum of 5 years.
    Consistent with Sec.  635.27(b)(1)(i)(B), if an annual quota for 
sandbar sharks, blacknose sharks, non-blacknose Small Coastal 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 for the following year, depending on the status 
of the stock or quota group. If the stock/complex (e.g., sandbar 
sharks, porbeagle sharks, non-sandbar LCS, blue sharks) or specific 
species within a quota group (e.g., blacktip sharks within the non-
sandbar LCS 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.
    Recently, NMFS published new stock determinations for blacknose and 
sandbar sharks (76 FR 62331; October 7, 2011). The blacknose shark 
stock was split into regions with the Atlantic stock being determined 
as overfished with overfishing occurring, while the Gulf of Mexico 
stock status was determined to be unknown. Sandbar sharks have been 
determined to be overfished with no 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. NMFS recently determined that scalloped hammerhead sharks were 
overfished with overfishing occurring (76 FR 23794; April 28, 2011). 
Scalloped hammerhead sharks are included in the non-sandbar LCS complex 
for the Atlantic and Gulf of Mexico regions. As a result, based on 
their stock status, no underharvests from the 2011 Atlantic commercial 
shark fishing season would be applied to the 2012 annual quotas or 
adjusted base quotas of these species or complexes.
    Thus, the 2012 proposed quotas would be equal to the appropriate 
annual quota minus any overharvests that occurred in the 2010 and 2011 
fishing seasons. For blacknose sharks, porbeagle sharks, blue sharks, 
and pelagic sharks (other than porbeagle or blue sharks), NMFS would 
use the base annual quota established at Sec.  635.27(b)(1)(iv)(A). For 
sandbar sharks and non-sandbar LCS, NMFS would use the adjusted base 
annual quota established at Sec.  635.27(b)(1)(iii).
    The non-blacknose SCS complex has been determined to not be 
overfished and has no overfishing occurring; therefore, any 
underharvest up to 50 percent of the base quota from the 2011 Atlantic 
commercial shark fishing season could be applied to the 2012 annual 
quotas.

2012 Proposed Quotas

    This rule proposes adjustments to the base commercial quotas due to 
over and underharvests that occurred in 2010 and

[[Page 67123]]

2011, where allowable, taking into consideration the stock status as 
required under existing regulations. The proposed 2012 quotas by 
species and species group are summarized in Table 1.
    The quotas in this proposed rule are based on dealer reports 
received as of August 31, 2011. In the final rule, NMFS will adjust the 
quotas based on dealer reports received as of October 31, 2011. Thus, 
all of the 2012 proposed quotas for the respective shark complexes/
species are subject to further adjustment for any overharvests 
reflected after considering the October 31 dealer reports. All dealer 
reports that are received by NMFS after October 31, 2011, will be used 
to adjust the 2013 quotas, as appropriate.

 Table 1--2012 Proposed Quotas and Opening Dates for the Atlantic Shark Fisheries. All Quotas and Landings Are Dressed Weight (dw), in Metric Tons (mt),
Unless Specified Otherwise. Table Includes Landings Data Through August 31, 2011, and Quotas Are Subject to Change Based on Landings Through October 31,
                                                                          2011
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          2012 Base
        Species group               Region          2011 Annual    Preliminary 2011    Overharvest/      annual quota    2012 Proposed    Season opening
                                                       quota          landings \1\     underharvest          \2\             quota            dates
                               ................  (A).............  (B).............  (C).............  (D)............  (D + C)........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Sandbar Large Coastal      Gulf of Mexico..  351.9 (775,740    327.0 (720,868    \3\ 2.3 (5,167    390.5 (860,896   392.8 (866,063   March 1, 2011.
 Sharks.                                          lb dw).           lb dw).           lb dw).           lb dw).          lb dw).
                               Atlantic........  190.4 (419,756    79.9 (176,052 lb  \4\-4.6 (-10,135  187.8 (414,024   183.2 (403,889   Effective Date
                                                  lb dw).           dw).              lb dw).           lb dw).          lb dw).          for HMS
                                                                                                                                          Electronic
                                                                                                                                          Reporting
                                                                                                                                          System or July
                                                                                                                                          15, 2011.\7\
Non-Sandbar LCS Research       No regional       37.5 (82,673 lb   37.0 (81,627 lb   ................  37.5 (82,673 lb  37.5 (82,673 lb  On or about
 Quota.                         quotas.           dw).              dw).                                dw).             dw).             January 1,
                                                                                                                                          2011.
Sandbar Research Quota.......  ................  87.9 (193,784 lb  53.0 (116,706 lb  ................  87.9 (193,784    87.9 (193,784
                                                  dw).              dw).                                lb dw).          lb dw).
Non-Blacknose Small Coastal    ................  314.4 (693,257    132.9 (292,926    \5\ 89.0          221.6 (488,539   310.6 (684,687
 Sharks.                                          lb dw).           lb dw).           (196,148 lb dw).  lb dw).          lb dw).
Blacknose Sharks.............  ................  19.9 (43,872 lb   13.1 (28,856 lb   ................  19.9 (43,872 lb  19.9 (43,872 lb
                                                  dw).              dw).                                dw).             dw).
Blue Sharks..................  ................  273 (601,856 lb   7.2 (15,968 lb    ................  273 (601,856 lb  273 (601,856 lb
                                                  dw).              dw).                                dw).             dw).
Porbeagle Sharks.............  ................  1.6 (3,479 lb     2.4 (5,350 lb     \6\ 0.9 (-2,083   1.7 (3,748 lb    0.8 (1,665 lb    On or about
                                                  dw).              dw).              lb dw).           dw).             dw).             January 1,
                                                                                                                                          2011.\8\
Pelagic Sharks Other Than      ................  488 (1,075,856    85.7 (188,896 lb  ................  488 (1,075,856   488 (1,075,856
 Porbeagle or Blue.                               lb dw).           dw).                                lb dw).          lb dw).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Landings are from January 1, 2011, until August 31, 2011, and are subject to change.
\2\ 2010 annual base quotas for sandbar and non-sandbar LCS are the annual adjusted base quotas that are effective from July 24, 2008, until December
  31, 2012 (50 CFR 635.27(b)(1)(iii) and (iv)).
\3\ NMFS proposes to adjust the 2012 quota for the Gulf of Mexico non-sandbar LCS to account for the 2.3 mt dw that was over estimated in the landings
  report in 2011 after the final rule establishing the 2011 quota published.
\4\ NMFS proposes to adjust the 2012 quota for Atlantic non-sandbar LCS to account for the 4.6 mt dw overharvest reflected in the landings report in
  2011 after the final rule establishing the 2011 quota published.
\5\ NMFS proposes to adjust the 2012 quota for non-blacknose SCS to account for the 21.8 mt dw that was over estimated in the landings report in 2011
  after the final rule establishing the 2011 quota published and the underharvest of 110.8 mt dw in 2011.
\6\ NMFS proposes to adjust the 2012 quota for porbeagle sharks to account for the < 0.1 mt dw overharvest that occurred in 2010 after the 0.1 mt dw
  overharvest was accounted for in the final rule establishing the 2011 quota and additional overharvest of 0.8 mt dw in 2011.
\7\ NMFS proposes to open the Atlantic non-sandbar LCS quota once the HMS electronic reporting system is implemented or July 15, 2011, whichever occurs
  first. NMFS would closely monitor the quota to ensure equitable fishing opportunities. If the fishery opens sooner than July 15 and the quota is being
  taken too fast to ensure equitable fishing opportunities across the region, NMFS would reduce the Atlantic non-sandbar LCS retention limits to slow
  down the fishing rates.
\8\ NMFS proposes to open the porbeagle fishery on January 1, 2012. If landings continue to occur in 2011 and the overharvest reaches 80 percent or more
  of the base quota (1.3 mt dw; 2,988 lb dw), NMFS would not open the fishery in 2012.

1. Proposed 2012 Quotas for Non-Sandbar LCS and Sandbar Sharks Within 
the Shark Research Fishery
    The 2012 proposed 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.
    Within the shark research fishery, as of August 31, 2011, 
preliminary reported landings of non-sandbar LCS were at 99 percent 
(37.0 mt dw), and sandbar shark reported landings were at 60 percent 
(53.0 mt dw). Reported landings have not exceeded the 2010 quota to 
date. Therefore, based on preliminary estimates and consistent with the 
current regulations at Sec.  635.27(b)(1)(vii), NMFS is not proposing 
to reduce 2011 quotas in the shark research fishery based on any 
overharvests.
    Under Sec.  635.27(b)(1)(i), because individual species, complexes, 
or species within a complex have been determined to be either 
overfished, have overfishing occurring, overfished with overfishing 
occurring, or have an unknown status, underharvests for these species 
and/or complexes would not be applied to the 2012 quotas. Therefore, 
NMFS proposes 2012 quotas for non-sandbar LCS and sandbar sharks within 
the shark research fishery would be 37.5 mt dw (82,673 lb dw) and 87.9 
mt dw (193,784 lb dw), respectively.
2. Proposed 2012 Quotas for the Non-Sandbar LCS in the Gulf of Mexico 
Region
    The 2012 proposed quota for non-sandbar LCS in the Gulf of Mexico 
region is 392.8 mt dw (866,063 lb dw). As of August 31, 2011, 
preliminary reported landings were at 93 percent (327.0 mt dw) for non-
sandbar LCS in the Gulf of Mexico region. In the final rule 
establishing the 2011 quotas (75 FR 76302, December 8, 2010), NMFS 
accounted for an overharvest of non-sandbar LCS of 38.6 mt dw (85,156 
lb dw) using data that was reported as of October 31, 2010. Between 
that date and December 31, 2010, the reported landings dropped by 2.3 
mt dw due to normal quality control procedures that occur when updated 
data are supplied. Thus, in order to reflect the best

[[Page 67124]]

available data and in accordance with Sec.  635.27(b)(1)(i), the amount 
that was deducted from the 2011 annual quota, based on preliminary 
numbers that were later corrected, would be added to the proposed 2012 
non-sandbar LCS quota in the Atlantic region. Thus, the 2012 proposed 
commercial non-sandbar LCS quota is 392.8 mt dw (866,063 lb dw) (390.5 
mt dw annual base quota + 2.3 mt dw 2010 over estimated landings = 
392.8 mt dw 2012 adjusted annual quota).
3. Proposed 2012 Quotas for the Non-Sandbar LCS in the Atlantic Region
    The 2012 proposed quota for non-sandbar LCS in the Atlantic region 
is 183.2 mt dw (403,889 lb dw). As of August 31, 2011, preliminary 
reported landings were at 42 percent (79.9 mt dw) for non-sandbar LCS 
in the Atlantic region as the commercial season opened on July 15, 
2011. In the final rule establishing the 2011 quotas, reported landings 
as of October 31, 2010, did not exceed the 2011 quota. Between that 
date and December 31, 2010, the Atlantic non-sandbar LCS quota was 
overharvested by 4.6 mt dw. As such, the 2012 proposed commercial non-
sandbar LCS quota is 183.2 mt dw (403,889 lb dw) (187.8 mt dw annual 
base quota -4.6 mt dw 2010 over estimated landings = 183.2 mt dw 2012 
adjusted annual quota).
4. Proposed 2012 Quotas for SCS and Pelagic Sharks
    The 2012 proposed annual commercial quotas for non-blacknose SCS, 
blacknose sharks, blue sharks, porbeagle sharks, and pelagic sharks 
(other than porbeagle or blue sharks) are 310.6 mt dw (684,687 lb dw), 
19.9 mt dw (43,872 lb dw), 273 mt dw (601,856 lb dw), 0.8 mt dw (1,900 
lb dw), and 488 mt dw (1,075,856 lb dw), respectively.
    As of August 31, 2011, preliminary reported landings of non-
blacknose SCS, blacknose sharks, blue sharks, porbeagle sharks, and 
pelagic sharks (other than porbeagle and blue sharks) were at 42 
percent (132.9 mt dw), 66 percent (13.1 mt dw), 2 percent (7.2 mt dw), 
154 percent (2.4 mt dw), and 18 percent (85.7 mt dw), respectively. As 
described above, while NMFS may adjust quotas for underharvests only 
when allowable depending on the stock status, NMFS will always adjust 
quotas for overharvests.
    Non-blacknose SCS have not been declared to be overfished, to have 
overfishing occurring, or to have an unknown status. Pursuant to Sec.  
635.27(b)(1)(i), any underharvests for the non-blacknose SCS would be 
applied to the 2011 quotas. In the final rule establishing the 2011 
quotas, NMFS accounted for an underharvest of 92.9 mt dw (204,718 lb 
dw) using data that was reported as of October 31, 2010. Between that 
date and December 31, 2010, an additional 21.8 mt dw was reported 
landed. As such, NMFS proposes to reduce the 2012 non-blacknose SCS to 
accommodate for the reported landings in 2010 and underharvest in 2011. 
The proposed 2012 adjusted base annual quota for non-blacknose SCS is 
310.6 mt dw (684,687 lb dw) (221.6 mt dw annual base quota -21.8 mt dw 
2010 additional reported landings + 110.8 mt dw 2011 underharvest = 
310.8 mt dw 2012 adjusted annual quota).
    Porbeagle sharks have been declared to be overfished with 
overfishing occurring. Pursuant to Sec.  635.27(b)(1)(i), any 
overharvests of porbeagle sharks would be applied to the 2012 quotas. 
In the final rule establishing the 2011 quotas, NMFS accounted for an 
overharvest of porbeagle sharks of 0.1 mt dw (269 lb dw) using data 
that was reported as of October 31, 2010. Between that date and 
December 31, 2010, porbeagle sharks were overharvested by an additional 
0.1 mt dw (212 lb dw). As of August 31, 2011, an additional 0.8 mt dw 
(1,871 lb dw) was overharvested above the porbeagle shark quota. The 
proposed 2012 adjusted annual commercial porbeagle quota is 0.8 mt dw 
(1,665 lb dw) (1.7 mt dw annual base quota -0.1 mt dw 2010 overharvest 
-0.8 mt dw 201 overharvest = 0.8 mt dw 2012 adjusted annual quota).
    Blacknose sharks and other pelagic species are considered 
overfished, to have overfishing occurring, or to have an unknown 
status. As of August 31, 2011, the 2011 commercial quota had not been 
reached or exceeded. Therefore, the 2012 proposed quotas would be the 
base annual quotas for blacknose sharks, blue sharks, and pelagic 
sharks (other than blue and porbeagle sharks) (19.9 mt dw (43,872 lb 
dw), 273 mt dw (601,856 lb dw), and 488 mt dw (1,075,856 lb dw), 
respectively.

Proposed Fishing Season Notification for the 2012 Atlantic Commercial 
Shark Fishing Season

    For each fishery, NMFS considered the seven ``Opening Fishing 
Season'' criteria listed in Sec.  635.27(b)(1)(ii). These include: 
``(A) The available annual quotas for the current fishing season for 
the different species/complexes based on any over- and/or underharvests 
experienced during the previous commercial shark fishing seasons; (B) 
Estimated season length based on available quota(s) and average weekly 
catch rates of different species/complexes in the Atlantic and Gulf of 
Mexico regions from the previous years; (C) Length of the season for 
the different species/complexes in the previous years and whether 
fishermen were able to participate in the fishery in those years; (D) 
Variations in seasonal distribution, abundance, or migratory patterns 
of the different species/complexes based on scientific and fishery 
information; (E) Effects of catch rates in one part of a region 
precluding vessels in another part of that region from having a 
reasonable opportunity to harvest a portion of the different species/
complexes quotas; (F) Effects of the adjustment on accomplishing the 
objectives of the 2006 Consolidated HMS FMP and its amendments; and/or 
(G) Effects of a delayed opening with regard to fishing opportunities 
in other fisheries.'' In addition, NMFS also considered other relevant 
factors, such as general input from the public and management measures 
before arriving at a proposed opening date for this rulemaking. For 
more information on these criteria and how they are considered, please 
review the Environmental Assessment (EA) associated with the 2011 quota 
specifications rule (75 FR 76302; December 8, 2010).
    NMFS proposes that the 2012 Atlantic commercial shark fishing 
season for the shark research, non-blacknose SCS, blacknose sharks, 
blue sharks, and pelagic sharks (other than porbeagle and blue sharks) 
in the northwestern Atlantic Ocean, including the Gulf of Mexico and 
the Caribbean Sea, would open on or about January 1, 2012.
    NMFS also proposes opening the porbeagle fishery on January 1. 
However, the 2011 porbeagle fishery landings exceeded the 2011 quota by 
54 percent and late reported landings in December 2010 that must be 
accounted for in 2012. Due to the combined overharvest in 2010 and 2011 
for the porbeagle fishery, the porbeagle quota is expected to be 0.8 mt 
dw (1,665 lb dw). Although the porbeagle fishery closed on August 29, 
2011 (76 FR 53343), additional landings could be reported late and 
fishermen might mistakenly land porbeagle sharks. If overharvest 
continues to occur and the level reaches 60 percent or more of the 2012 
base quota (1.3 mt dw; 2,988 lb dw), then NMFS would not open the 
fishery in 2012. This decision is based on the availability of the 
annual quota based on overharvests in the previous fishing seasons 
(Sec.  635.27(b)(1)(ii)(A)).
    NMFS proposes to open the Gulf of Mexico non-sandbar LCS fishery on

[[Page 67125]]

March 1, 2012. Opening the fishing season again on March 1 would 
provide, to the extent practicable, equitable opportunities across the 
fisheries management region as it did for the 2011 fishing season. This 
is consistent with all the criteria listed in Sec.  635.27(b)(1)(ii), 
but particularly the effects of catch rates in one part of a region 
precluding vessels in another part of that region from having a 
reasonable opportunity to harvest a portion of the different species/
complexes quotas (Sec.  635.27(b)(1)(ii)(E)). In the Atlantic region, 
NMFS delayed the opening of the non-sandbar LCS fishery until July 15 
in 2010 and 2011 in order to allow for more equitably distributed shark 
fishing opportunities as intended by Amendment 2. However, based on 
public comments received during the rulemaking process for the 2011 
season, including from south Atlantic fishermen, NMFS proposes to open 
the Atlantic non-sandbar LCS fishery on the effective date of the final 
rule implementing the Atlantic HMS electronic dealer reporting system 
(76 FR 37750) or July 15, 2011, whichever occurs first. This opening 
date is also consistent with all the criteria listed in Sec.  
635.27(b)(1)(ii), particularly the variations in seasonal distribution, 
abundance, or migratory patterns of the different species based on 
scientific and fishery information (Sec.  635.27(b)(1)(ii)(D)). The 
proposed opening date could allow fishermen to harvest some of the 2012 
quota at the beginning of the year when sharks are more prevalent in 
the South Atlantic area if the electronic dealer reporting system is 
operating earlier than July 15. If the season opens before July 15 and 
the quota is taken too quickly to allow fishermen in the North Atlantic 
area an opportunity to fish throughout the entire region, then NMFS 
could reduce the commercial retention limits per Sec.  635.24(a)(8) 
while being consistent with the opening dates criteria. If that occurs, 
NMFS would file for publication with the Office of the Federal Register 
a notice of any inseason adjustments to reduce retention limits to 
between 0-33 sharks per trip. NMFS could increase the commercial 
retention limits back to 33 sharks per trip at a later date to provide 
fishermen in the North Atlantic area an opportunity to retain non-
sandbar LCS. Based on the fishing rates in the 2009 fishing season, if 
NMFS opens the fishery earlier than July 15 and does not adjust the 
commercial retention limits throughout the season, then fishermen in 
the South Atlantic area would likely catch the entire Atlantic quota 
before the sharks could migrate to the North Atlantic area.
    All of the shark fisheries would remain open until December 31, 
2012, unless NMFS determines that the fishing season landings for 
sandbar shark, non-sandbar LCS, blacknose sharks, non-blacknose SCS, 
blue sharks, porbeagle sharks, or pelagic sharks (other than porbeagle 
or blue sharks) have reached, or are projected to reach, 80 percent of 
the available quota. At that time, consistent with Sec.  635.28(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, the 
fishery for the shark species group and, for non-sandbar LCS, region 
would remain closed, even across fishing years, consistent with Sec.  
635.28(b)(2).

Request for Comments

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax. NMFS solicits comments on this 
proposed rule by November 30, 2011 (see DATES and ADDRESSES).

Public Hearings

    Public hearings on this proposed rule are not currently scheduled. 
If you would like to request a public hearing, please contact Guy 
DuBeck, Jennifer Cudney or Karyl Brewster-Geisz by phone at (301) 427-
8503.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, other provisions of the MSA, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. The IRFA analysis follows.
    In compliance with section 603(b)(1) of the RFA, the purpose of 
this proposed rulemaking is, consistent with the Magnuson-Stevens Act 
and the 2006 Consolidated HMS FMP and its amendments, to adjust the 
2012 proposed quotas for non-sandbar LCS, sandbar sharks, blacknose 
sharks, non-blacknose SCS, blue sharks, porbeagle sharks, or pelagic 
sharks (other than porbeagle or blue sharks) based on any over- and/or 
underharvests from the previous fishing year. These adjustments are 
being implemented according to the regulations implementing the 2006 
Consolidated HMS FMP and its amendments. Thus, NMFS would expect few, 
if any, economic impacts to fishermen other than those already analyzed 
in the 2006 Consolidated HMS FMP and its amendments, based on the quota 
adjustments. An additional purpose is to use implemented management 
measures to delay the opening of the fishing season and allow inseason 
adjustments in the trip limits to slow the fishery down during the 
season, as necessary. These management measures would provide, to the 
extent practicable, equitable opportunities across the fishing 
management region while also considering the ecological needs of the 
different species.
    In compliance with section 603(b)(2) of the RFA, the objectives of 
this proposed rulemaking are to: (1) Adjust the annual quotas for non-
sandbar LCS in the Gulf of Mexico due to overestimated landings in 
2010, non-sandbar LCS in the Atlantic region due to minor overharvests 
in 2010, porbeagle sharks due to overharvests in 2010 and 2011, and the 
non-blacknose SCS due to underestimated landings in 2010 and 
underharvests in 2011; (2) establish the opening dates for all of the 
shark fisheries in the Atlantic and Gulf of Mexico regions; and (3) 
consider the need to adjust the trip limits inseason for non-sandbar 
LCS.
    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 fisheries are comprised of fishermen who hold 
shark directed or incidental limited access permits (LAP) and the 
related

[[Page 67126]]

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 216 directed commercial shark permit holders, 264 
incidental commercial shark permit holders, and 114 commercial shark 
dealers as of August 2011.
    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.
    In compliance with section 603(c) of the Regulatory Flexibility 
Act, each initial regulatory flexibility analysis shall also contain a 
description of any significant alternatives to the proposed rule which 
accomplish the stated objectives of applicable statutes and which 
minimize any significant economic impact of the proposed rule on small 
entities. 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 final rule, consistent with the 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. 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. This 
rulemaking does not establish management measures to be implemented, 
but rather implements previously adopted and analyzed measures with 
adjustments, as specified in Amendment 2 and Amendment 3 to the 2006 
Consolidated HMS FMP and the EA with the 2011 quota specifications rule 
(75 FR 76302; December 8, 2010). Thus, in this proposed rulemaking HMS 
proposes to adjust quotas established and analyzed in Amendment 2 and 
Amendment 3 to the 2006 Consolidated HMS FMP by subtracting the 
underharvest or adding the overharvest. Similarly, the ranges of 
management measures are consistent with the requirements of the 
Magnuson-Stevens Act that were previously analyzed in the EA with the 
2011 quota specifications rule. Thus, HMS has limited flexibility that 
it could exercise on the management measures or quotas in this rule.
    Based on the 2010 ex-vessel price ($0.67/LCS lb, $0.68/SCS lb, 
$1.21/pelagic lb, and $13.48/lb for shark fins), the 2012 Atlantic 
shark commercial baseline quotas could result in revenues of 
$5,973,806. The adjustments due to overestimated landings for 2010 
would result in a $6,944 gain in revenues in the Gulf of Mexico non-
sandbar LCS fishery. The adjustment due to the overharvests in 2011 
would result in a $13,621 loss in revenues in the Atlantic non-sandbar 
LCS fishery and a $3,924 loss in revenue in the porbeagle fishery. The 
adjustment due to the underharvests in 2011 would result in a $265,584 
gain in revenues in the non-blacknose SCS fishery. These revenues are 
similar to the gross revenues analyzed in Amendment 2 and Amendment 3 
to the 2006 Consolidated HMS FMP. The IRFAs for those amendments 
concluded that the economic impacts on these small entities, resulting 
from rules such as this one that delay the season openings and adjust 
the trip limits inseason via proposed and final rulemaking, were 
expected to be minimal. Amendment 2 and Amendment 3 to the 2006 
Consolidated HMS FMP and the EA with the 2011 quota specifications rule 
assumed we would be doing annual rulemakings and considered the IRFAs 
in the economic and other analyses at the time.
    For this rule, NMFS reviewed the criterion at Sec.  635.27(b)(ii) 
to determine when opening each fishery will provide equitable 
opportunities for fishermen while also considering the ecological needs 
of the different species. The opening of the fishing season could vary 
based on the available annual quota, catch rates, and number of fishing 
participants during the year. For the 2012 fishing season, NMFS is 
proposing to open the shark research, blacknose shark, non-blacknose 
SCS, and pelagic shark fisheries on the effective date of the final 
rule for this action (expected to be January 1). The direct and 
indirect economic impacts would be neutral on a short- and long-term 
basis, because NMFS is proposing not to change the opening dates of 
these fisheries from the status quo.
    NMFS also proposes opening the porbeagle fishery on January 1. The 
direct and indirect economic impacts would be neutral on a short- and 
long-term basis, because NMFS is proposing not to change the opening 
dates of these fisheries from the status quo. However, due to the 
combined overharvest in 2010 and 2011 for the porbeagle fishery, the 
porbeagle quota is expected to be 0.8 mt dw (1,665 lbs dw). If landings 
continue to occur and the overharvest reaches 80 percent or more of the 
base quota (1.3 mt dw; 2,988 lb dw), NMFS would not open the fishery. 
This action would cause direct and indirect moderate, adverse economic 
impacts on shark fishermen and other entities that rely on porbeagle 
sharks.
    NMFS proposes to delay the opening of the non-sandbar LCS in the 
Gulf of Mexico region until March 1, 2011, which would be the same 
opening date as 2010 fishing season. The delay in the Gulf of Mexico 
non-sandbar LCS fishing season could result in short-term direct, 
minor, adverse economic impacts as fishermen would have to fish in 
other fisheries to make up for lost non-sandbar LCS revenues during 
January and February of the 2012 fishing season. The short-term effects 
for delaying the season could cause indirect, minor, adverse economic 
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 non-sandbar LCS shark products would not be available. 
However, long-term direct and indirect impacts are not anticipated as 
the delay would only be two months for the 2012 fishing season. In 
addition, NMFS does not anticipate that the delay would result in 
changes in ex-vessel prices as 2010 median ex-vessel prices for non-
sandbar LCS meat and fins in the Gulf of Mexico region ranged from 
$0.36-$0.40/lb dw and $17.67-$15.46/lb dw, respectively, from January 
through March.
    NMFS proposes to delay the opening of the non-sandbar LCS in the 
Atlantic region until the effective date of the HMS electronic 
reporting system (approximately February 2012). The

[[Page 67127]]

delay in the Atlantic non-sandbar LCS fishing season would result in 
short-term, direct, moderate, beneficial economic impacts as fishermen 
and dealers in the south Atlantic would not be able to fish for non-
sandbar LCS starting in January but should still be able to fish 
earlier in the 2012 fishing season compared to the 2010 and 2011 
fishing season, which did not start until July 15. South Atlantic 
fishermen commented during the public comment period for the 2011 shark 
specification rulemaking process that they felt that opening the 
fishery in July was not fair to them because by July the sharks have 
migrated north and are no longer available. With the implementation of 
the HMS electronic reporting system, NMFS should be able to monitor the 
quota on a real-time basis. This ability, along with the inseason 
adjustment criteria in Sec.  635.24(a)(8), should allow NMFS the 
flexibility in furtherance of opportunities for all fishermen in all 
regions, to the extent practicable. Depending on how quickly the quota 
was being harvested, NMFS could reduce the retention limits to 0-33 
sharks per trip to ensure that fishermen further north have ample quota 
for a fishery later in the 2012 fishing season. The direct impacts to 
shark fishermen in the Atlantic region of reducing the trip limit would 
depend on the needed reduction in the trip limit and the timing of such 
a reduction. Therefore, such a reduction in the trip limit is only 
anticipated to have minor adverse direct economic impacts to fishermen 
in the short-term; long-term impacts are not anticipated as these 
reductions would not be permanent.
    In the North Atlantic area, a split opening for the non-sandbar LCS 
would have direct, minor, beneficial economic impacts in the short-term 
for fishermen as they would have access to the non-sandbar LCS quota in 
2012. Fishermen in the North Atlantic area did not have or had limited 
access to the non-sandbar LCS quota in 2009. There would be indirect, 
minor, beneficial economic impacts in the short and long-term for shark 
dealers and other entities that deal with shark products in this area 
as they would also have access to non-sandbar LCS products in 2011. 
Thus, allowing the split season in 2012 would cause neutral cumulative 
economic impacts, since it would allow for a more equitable 
distribution of the quotas among constituents in this region, which was 
the original intent of Amendment 2.

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

    Dated: October 26, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2011-28083 Filed 10-28-11; 8:45 am]
BILLING CODE 3510-22-P