[Federal Register Volume 77, Number 15 (Tuesday, January 24, 2012)]
[Rules and Regulations]
[Pages 3393-3399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1337]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110913585-2001-02]
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: Final rule; fishing season notification.

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SUMMARY: This final rule establishes the opening dates and adjusts 
quotas for the 2012 fishing season for the Atlantic commercial shark 
fisheries. Quotas were adjusted based on over- and/or underharvests 
experienced during the 2010 and 2011 Atlantic commercial shark fishing 
seasons. In addition, NMFS is using previously-implemented adaptive 
management measures to provide, to the extent practicable, fishing 
opportunities for commercial shark fishermen in all regions and areas 
to determine the opening dates. These actions are expected to provide 
fishing opportunities for commercial shark fishermen in the 
northwestern Atlantic, including the Gulf of Mexico and Caribbean.

DATES: The 2012 Atlantic commercial shark fishing season opening dates 
and quotas are provided in Table 1 under SUPPLEMENTARY INFORMATION.

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

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz or Guy DuBeck at 
(301) 427-8503 or (fax) (301) 713-1917.

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.
    On October 31, 2011, NMFS published a rule (76 FR 67121) that 
proposed the 2012 opening dates of the Atlantic commercial shark 
fisheries and quotas based on shark landings information as of August 
31, 2011. The proposed rule also considered using adaptive management 
measures such as flexible opening dates for the fishing seasons and 
inseason adjustments to shark trip limits to provide flexibility in 
management in the furtherance of equitable fishing opportunities, to 
the extent practicable, for commercial shark fishermen in all regions 
and areas. The proposed rule contained details regarding the adaptive 
management measures and a brief summary of recent management history. 
Those details are not repeated here.
    Approximately 15 comments from the public were received on the 
proposed rule. Those comments, along with the Agency's responses, are 
summarized below. As detailed more fully in the Response to Comments 
section, as a result of public comment, in the final rule NMFS has 
changed the opening date of the non-sandbar large coastal shark (LCS) 
fishery in the Gulf of Mexico region from March 1, 2012, to February 
15, 2012. The other shark species/complexes will open as proposed in 
the October 31, 2011, proposed rule.
    This final rule serves as notification of the 2012 opening dates of 
the Atlantic commercial shark fisheries and 2012 quotas, based on shark 
landings updates as of October 31, 2011, pursuant to Sec.  
635.27(b)(1)(i-vi). This action does not change the annual base and 
adjusted annual base commercial quotas established under Amendments 2 
and 3 to the 2006 Consolidated HMS FMP for sandbar sharks, non-sandbar 
LCS, blue sharks, porbeagle sharks, and pelagic sharks (other than 
porbeagle and blue sharks), non-blacknose SCS, or blacknose sharks. Any 
such changes would be performed through a separate action. Rather, this 
action adjusts the commercial quotas based on over- and/or 
underharvests that occurred in 2010 and 2011, consistent with existing 
regulations.

Response to Comments

    During the proposed rule stage, NMFS received approximately 15 
comments from fishermen, dealers, and other interested parties. All 
written comments can be found at http://www.regulations.gov/ and by 
searching for RIN 0648-BB36.
    Comment 1: NMFS received several comments regarding the proposed 
opening date for the non-sandbar LCS fishery. One comment noted that 
shark meat is easier to sell in the Gulf of Mexico during the religious 
period of Lent, which runs from February 22 to April 7, 2012. Other 
comments indicated that shark dealers and fishermen would prefer for 
the fishery to open on February 15, since the targeted shark species 
would no longer be in their fishing areas by March 1.
    Response: In the proposed rule, NMFS considered a season opening 
date of March 1, 2012, to allow for the furtherance of equitable 
fishing opportunities, to the extent practicable, for commercial shark 
fishermen in all parts of the Gulf of Mexico region. Under the criteria 
listed at Sec.  635.27(b)(1)(ii), NMFS examined the season length from 
previous fishing years, variation in seasonal distribution and 
abundance of sharks, and the effects of catch rates in one part of a 
region precluding fishing opportunities for vessels in another part of 
that region before making a decision. Taking into consideration these 
criteria, NMFS has determined that changing the opening date of the 
non-sandbar LCS fishery in the Gulf of Mexico region is allowable and 
will continue to promote equitable fishing opportunities in this 
region. Also, changing the opening date will not compromise the 
resource due to variations in seasonal distribution, abundance, and 
migratory patterns of the non-sandbar LCs species. As such, based on 
comments received from fishermen and dealers in different areas of the 
Gulf of Mexico requesting NMFS to open on February 15, NMFS is changing 
the proposed opening date of the non-sandbar LCS from March 1, 2012, to 
February 15, 2012.
    Comment 2: NMFS should stop all shark fishing.
    Response: This comment is outside the scope of this rulemaking. The 
purpose of this rulemaking is to adjust quotas based on over- and 
underharvests from the previous year and opening dates for the 2012 
shark season. Management of the Atlantic shark fisheries is based on 
the best available science to maintain or rebuild overfished shark 
stocks. The final rule does not reanalyze the overall management 
measures for sharks, which were analyzed in Amendment 2 and Amendment 
3, and are being reviewed again for some shark species in Amendment 5 
(76 FR 62331; October 7, 2011) and Amendment 6 (76 FR 57709;

[[Page 3394]]

September 16, 2011), both of which are in the scoping phase.
    Comment 3: Some Florida fishermen supported the NMFS proposed 
opening for the non-sandbar LCS fishery in the Atlantic region, which 
includes U.S. waters from Maine to east coast of Florida, on the 
effective date of the final rule implementing the Atlantic HMS 
electronic dealer reporting system, or July 15, 2012, whichever comes 
sooner. Fishermen in the southern portion of the Atlantic region were 
supportive of timing the fishery so that they will have an opportunity 
to participate in a winter fishery this year.
    Response: NMFS implemented the adaptive management measures from 
the 2011 shark season rule (75 FR 76302; December 8, 2010) to allow for 
flexible opening dates and ensure equitable fishing opportunities for 
fishermen along the Atlantic coast. These adaptive management measures 
will allow NMFS to accommodate the south Atlantic fishermen's comments 
regarding timing to allow for a winter fishery. 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 
trip limit adjustment, should allow NMFS additional flexibility in 
furtherance of opportunities for all fishermen in all regions, to the 
extent practical. Depending on how quickly the quota is being 
harvested, NMFS could reduce the retention limits to 0-32 sharks per 
trip to ensure that fishermen further north have ample quota for a 
fishery later in the 2012 fishing season.
    Comment 4: NMFS should stop the retention of hammerhead sharks by 
recreational fishermen.
    Response: This comment is outside the scope of this rulemaking. The 
purpose of this rulemaking is to adjust the commercial fishing quotas 
and opening dates for the 2012 shark fisheries seasons. The final rule 
does not reanalyze the recreational management measures for sharks, 
which were analyzed in Amendment 2, Amendment 3, and the final rule 
implementing the International Commission for the Conservation of 
Atlantic Tunas recommendations that prohibit the retention, 
transshipping, landing, storing, or selling of hammerhead and oceanic 
whitetip sharks (76 FR 53652; August 29, 2011). Management measures for 
scalloped hammerhead sharks will be considered and analyzed through 
Amendment 5 (76 FR 62331; October 7, 2011).
    Comment 5: NMFS needs to be clear and consistent with their 
messages to the public. The proposed opening for the porbeagle fishery 
was very confusing in its wording and there was a mistake in the 
proposed rule and email notice. This is difficult for the public to 
decipher, as the wording is not clear and/or the math seems not to be 
accurate. NMFS should take care that its public notices are both 
accurate and clear.
    Response: NMFS agrees that its messages to the public should be 
clear and that there was a mistake in the proposed rule and email 
notice. NMFS proposed opening the porbeagle fishery on or about January 
1, 2012, if the total overharvest from 2011 had not reached 80 percent 
of the 2012 annual base quota. The proposed rule and email notice 
stated that 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), 
NMFS would not open the fishery in 2012.'' This sentence misstated the 
applicable regulatory language from Sec.  635.28(b)(2), which provides 
that when NMFS calculates that the landings for the shark species/
complex has reached or is projected to reach 80 percent of the 
available quota, NMFS will file for publication with the Office of the 
Federal Register a notice of closure for that shark species/complex. 
Thus, the proposed rule should refer to ``80 percent or more of the 
2012 base quota'' and not 60 percent.
    Comment 6: Both scalloped hammerhead and porbeagle sharks are in a 
decline and face extinction. These species have been petitioned to be 
listed under the Endangered Species Act (ESA). In light of the 
information in these petitions and ongoing legal actions, NMFS should 
halt all fishing activities on both species.
    Response: Under Amendment 2, scalloped hammerhead sharks are 
managed as part of the non-sandbar large coastal complex, and porbeagle 
sharks are managed with a separate species-specific quota and other 
management measures. NMFS has undertaken scoping for Amendment 5, which 
will address information in a new stock assessment for scalloped 
hammerhead sharks within the timeframe required by the Magnuson-Stevens 
Act (MSA). The current fishery management plans and the best available 
science do not indicate that fishing of either species must stop 
completely. A petition to list species under the ESA triggers a process 
under the ESA, which does not require halting fishing activity under 
either the ESA or the MSA pending the agency's consideration of the 
petition. Recently, NMFS announced a 90-day finding on a petition to 
list scalloped hammerhead sharks as threatened or endangered under the 
ESA (76 FR 72891; November 28, 2011). Applying the appropriate 
standards from the listing review process, NMFS found that there is 
``substantial scientific or commercial information indicating that the 
petitioned action may be warranted.'' This finding does not carry with 
it any additional protection for the species. NMFS now will conduct a 
status review of the species to determine if the petition action is 
warranted. To ensure that the status review is comprehensive, NMFS is 
soliciting scientific and commercial information pertaining to this 
species from any interested party. Information and comments are due by 
January 27, 2012, and the Agency intends to make its decision in August 
2012. If a decision is made that listing scalloped hammerhead sharks 
under the ESA is warranted, then the Agency would publish a proposed 
rule to list the species, designate critical habitat, and accept public 
comments before any final actions. Additionally, the Agency is 
reviewing management measures for scalloped hammerhead sharks through 
the Amendment 5 rulemaking process (76 FR 62331; October 7, 2011). 
Comments on scoping for Amendment 5 are due on December 31, 2011. The 
petition to list porbeagle sharks under the ESA received a negative 90-
day finding (75 FR 39656; July 12, 2010). NMFS determined that the 
petition did not present substantial scientific information indicating 
the petitioned action may be warranted. Currently, NMFS's decision not 
to initiate a status review for porbeagle sharks is being challenged in 
federal court.

Changes From the Proposed Rule

    NMFS made several changes to the proposed rule as described below.
    1. NMFS changed the opening date of the non-sandbar LCS fishery in 
the Gulf of Mexico in the final rule from March 1, 2012, to February 
15, 2012. As described in the response to comment above, this change is 
being made to address public comment. Opening of the non-sandbar LCS 
fishery in the Gulf of Mexico region earlier in the year balances the 
comments received from all constituents in the Gulf of Mexico region 
and should provide equitable shark fishing opportunities to all 
participants in the Gulf of Mexico region, to the extent practicable. 
Also, this change was within the range of possible actions analyzed in 
the proposed rule pursuant to Sec.  635.27(b)(1)(ii).
    2. NMFS made changes in the final quotas of the non-blacknose SCS 
and porbeagle shark fisheries based on

[[Page 3395]]

landings updates through October 31, 2011. In the proposed rule, NMFS 
proposed a quota for the commercial non-blacknose SCS fishery of 310.6 
mt dw based on shark landings updates as of August 31, 2011. Using 
adjusted landings through October 31, 2011, and correcting for an error 
in accounting for harvests in 2010, this final rule establishes the 
2012 commercial non-blacknose SCS quota of 332.4 mt dw. In the proposed 
rule, the commercial porbeagle fishery was proposed to be 0.8 mt dw 
based on the August 31, 2011, shark landings updates. Using adjusted 
landings through October 31, 2011, this rule establishes the 2012 
porbeagle quota to be 0.7 mt dw. All of the details of the resulting 
changes to the quota can be found in Table 1 and below.

2012 Annual Quotas

    This final rule adjusts the commercial quotas due to over- and/or 
underharvests in 2010 and 2011. The 2012 annual quotas by species and 
species group are summarized in Table 1. 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 Annual Quotas and Opening Dates for the Atlantic Shark Fisheries. All Quotas and Landings Are Dressed Weight (dw), in Metric Tons (mt),
                                                               Unless Specified Otherwise
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          2012 Base
        Species group               Region          2011 Annual    Preliminary 2011   Adjustments (C)    annual quota     2012 Annual     Season opening
                                                     quota (A)     landings \1\ (B)                        \2\ (D)        quota (D+C)         dates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Sandbar Large Coastal      Gulf of Mexico..  351.9 (775,740    327.7 (722,444    2.3 (adjustment   390.5 (860,896   392.8 (866,063   February 15,
 Sharks.                                          lb dw).           lb dw).           from 2010) \3\.   lb dw).          lb dw).          2012.
                               Atlantic........  190.4 (419,756    148.0 (326,354    -4.6 (2010        187.8 (414,024   183.2 (403,889   Effective Date
                                                  lb dw).           lb dw).           overharvest)      lb dw).          lb dw).          for HMS
                                                                                      \4\.                                                Electronic
                                                                                                                                          Dealer
                                                                                                                                          Reporting
                                                                                                                                          System or July
                                                                                                                                          15, 2012,
                                                                                                                                          whichever
                                                                                                                                          comes first.
Non-Sandbar LCS Research.....  No regional       37.5 (82,673 lb   37.0 (81,627 lb   N/A \5\.........  37.5 (82,673 lb  37.5 (82,673 lb  January 24,
                                quotas.           dw).              dw).                                dw).             dw).             2012.
Sandbar Shark Research.......  ................  87.9 (193,784 lb  60.2 (132,778 lb  N/A \5\.........  87.9 (193,784    87.9 (193,784    ...............
                                                  dw).              dw).                                lb dw).          lb dw).
Non-Blacknose Small Coastal    ................  314.4 (693,257    177.1 (390,439    110.8 \6\         221.6 (488,539   332.4 (732,808   ...............
 Sharks.                                          lb dw).           lb dw).           (adjustment       lb dw).          lb dw).
                                                                                      from 2011).
Blacknose Sharks.............  ................  19.9 (43,872 lb   14.0 (30,971 lb   N/A \5\.........  19.9 (43,872 lb  19.9 (43,872 lb  ...............
                                                  dw).              dw).                                dw).             dw).
Blue Sharks..................  ................  273.0 (601,856    7.2 (15,968 lb    N/A \5\.........  273.0 (601,856   273.0 (601,856
                                                  lb dw).           dw).                                lb dw).          lb dw).
Porbeagle Sharks.............  ................  1.6 (3,479 lb     2.5 (5,430 lb     -1.0 \7\          1.7 (3,748 lb    0.7 (1,585 lb
                                                  dw).              dw).              (adjustments      dw).             dw).
                                                                                      from 2010 and
                                                                                      2011
                                                                                      overharvests).
Pelagic Sharks Other Than      ................  488.0 (1,075,856  102.1 (225,068    N/A \5\.........  488.0            488.0            ...............
 Porbeagle or Blue.                               lb dw).           lb dw).                             (1,075,856 lb    (1,075,856 lb
                                                                                                        dw).             dw).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Landings are from January 1, 2011, until October 31, 2011, and are subject to change.
\2\ 2012 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\ This adjustment accounts for the 2.3 mt dw (5,167 lb dw) that was overestimated in the landings used in the final rule establishing the 2011 quotas.
\4\ This adjustment accounts for the 4.6 mt dw (10,135 lb dw) overharvest reflected in the landings used in the final rule establishing the 2011 quotas.
\5\ Although there were underharvests in the non-sandbar LCS research, shark research, non-sandbar large coastal shark (LCS), blacknose sharks, blue
  sharks, and pelagic sharks (other than porbeagle or blue sharks) fisheries, those underharvests cannot be carried over to the 2012 fishing season
  because those fisheries have been determined to be overfished, overfished with overfishing occurring, or have an unknown status. See 50 CFR
  635.27(b)(1)(i)(B).
\6\ This adjustment accounts for the underharvest in 2011. While the total underharvest is 137.3 mt dw, NMFS may account for underharvest only up to 50
  percent of the base annual quota or 110.8 mt dw (244,269 lb dw).
\7\ This adjustment accounts for overharvest in 2010 and 2011. After the final rule establishing the 2011 quotas, the porbeagle sharks were
  overharvested by an additional 0.1 mt dw (212 lb dw). As of October 31, 2011, 0.9 mt dw (1,951 lb dw) was harvested above the 2011 porbeagle shark
  quota.

1. 2012 Quotas for Non-Sandbar LCS and Sandbar Sharks Within the Shark 
Research Fishery
    No overharvests of the non-sandbar LCS and sandbar shark quotas 
within the shark research fishery occurred during the 2011 fishing year 
and, given the status of the stocks, any underharvests cannot be 
accounted for pursuant to Sec.  635.27(b)(1)(iii). Therefore, the 2012 
base annual quotas within the shark research fishery will be 37.5 mt dw 
(82,673 lb dw) for non-sandbar LCS and 87.9 mt dw (193,784 lb dw) for 
sandbar sharks.
2. 2012 Quotas for the Non-Sandbar LCS in the Gulf of Mexico Region
    No overharvests of the non-sandbar LCS in the Gulf of Mexico region 
occurred during the 2011 fishing year and, given the status of the 
stocks, any underharvests cannot be accounted for pursuant to Sec.  
635.27(b)(1)(iv). Therefore, the 2012 annual quota for non-sandbar LCS 
in the Gulf of Mexico region does not need to be adjusted. However, 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 were reported as of October 31, 2010. 
Between that date and December 31, 2010, the reported landings were 
reduced by 2.3 mt dw due to normal quality control procedures that 
occur when updated data are supplied. Thus, as stated in the proposed 
rule, in order to reflect the best available data and in accordance 
with Sec.  635.27(b)(1)(i), NMFS is adding the amount that was deducted 
from the 2011 annual quota, based on preliminary numbers that were 
later corrected, to the 2012 non-sandbar LCS quota in the Gulf of 
Mexico region. Thus, the 2012 annual 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

[[Page 3396]]

overestimated landings = 392.8 mt dw 2012 adjusted annual quota).
3. 2012 Quotas for the Non-Sandbar LCS in the Atlantic Region
    No overharvests of the non-sandbar LCS in the Atlantic region 
occurred during the 2011 fishing year and, given the status of the 
stocks, any underharvests cannot be accounted for pursuant to Sec.  
635.27(b)(1)(iv). Therefore, the 2012 annual quota for non-sandbar LCS 
in the Atlantic region does not need to be adjusted to account for 2011 
landings. However, in the final rule establishing the 2011 quotas, NMFS 
stated that the reported landings as of October 31, 2010, did not 
exceed the 2010 quota. Between that date and December 31, 2010, the 
Atlantic non-sandbar LCS quota was overharvested by 4.6 mt dw. As such, 
this overharvest must be accounted for in the 2012 quota. Accordingly, 
the 2012 annual 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. 2012 Quotas for SCS and Pelagic Sharks
    No overharvests of blacknose shark, blue sharks, and pelagic sharks 
other than porbeagle or blue sharks occurred between October 31, 2010 
and December 31, 2010, or during the 2011 fishing year. Given the 
status of the stocks, underharvests cannot be accounted for pursuant to 
Sec.  635.27(b)(1)(v) through (vi). Therefore, the 2012 annual base 
quotas for blacknose sharks, blue sharks and pelagic sharks other than 
porbeagle or blue sharks will be 19.9 mt dw (43,872 lb dw), 273.0 mt dw 
(601,856 lb dw), and 488.0 mt dw (1,075,856 lb dw), respectively.
    Regarding non-blacknose SCS, NMFS has declared this complex to be 
not overfished and to have no overfishing occurring. Therefore, in this 
final rule establishing the 2012 quotas, NMFS may account for 
underharvest up to 50 percent of the base annual quota. Preliminary 
landings through October 31, 2011, indicate that 177.1 mt dw were 
landed out of an adjusted quota of 314.4 mt dw. While 137.3 mt dw 
remained un-harvested, because the base quota is 221.6 mt dw, the 
maximum amount that NMFS may carry forward is 110.8 mt dw. Therefore, 
the 2012 adjusted annual quota for non-blacknose SCS is 332.4 mt dw 
(732,808 lb dw) (221.6 mt dw annual base quota + 110.8 mt dw 2011 
underharvest = 332.4 mt dw 2012 adjusted annual quota).
    Since overharvests of the porbeagle fishery occurred between 
October 31, 2010, and December 31, 2010, and during the 2011 fishing 
year, the 2012 annual quota for porbeagle fishery needs to be adjusted 
to account for 2010 and 2011 landings. 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). Additionally, as 
of October 31, 2011, 0.9 mt dw (1,951 lb dw) was overharvested above 
the 2011 porbeagle shark quota. As such, the 2012 adjusted annual 
commercial porbeagle quota is 0.7 mt dw (1,585 lb dw) (1.7 mt dw annual 
base quota -0.1 mt dw 2010 overharvest -0.9 mt dw 2011 additional 
overharvest = 0.7 mt dw 2012 adjusted annual quota).

Fishing Season Notification for the 2012 Atlantic Commercial Shark 
Fishing Season

    Based on the seven ``Opening Fishing Season'' criteria listed in 50 
CFR 635.27(b)(1)(ii), the 2012 Atlantic commercial shark fishing season 
for the shark research, non-blacknose SCS, blacknose sharks, blue 
sharks, porbeagle sharks, and pelagic sharks (other than porbeagle and 
blue sharks) in the northwestern Atlantic Ocean, including the Gulf of 
Mexico and the Caribbean Sea, will open on January 24, 2012. The non-
sandbar LCS in the Gulf of Mexico region will open on February 15, 
2012. The non-sandbar LCS fishery in the Atlantic region will open on 
the effective date of the final rule implementing the Atlantic HMS 
electronic dealer reporting system, or July 15, 2012, whichever comes 
sooner.
    All of the shark fisheries will remain open until December 31, 
2012, 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) have reached, or are projected to reach, 80 percent of the 
available quota. At that time, consistent with Sec.  635.27(b)(1), NMFS 
will file for publication with the Office of the Federal Register a 
closure action for that shark species group and/or region that will be 
effective no fewer than 5 days from the date of filing. From the 
effective date and time of the closure until NMFS announces, via a 
Federal Register action that additional quota, if any, is available, 
the fishery for the shark species group and, for non-sandbar LCS, 
region will remain closed, even across fishing years, consistent with 
Sec.  635.28(b)(2). As a reminder, the blacknose and non-blacknose SCS 
fisheries will close together when landings reach 80 percent of either 
quota.

Classification

    NMFS has determined that this action is consistent with the 2006 
Consolidated HMS FMP and its amendments, other provisions of the MSA, 
and other applicable law. Pursuant to 5 U.S.C. 553(d)(3), The Assistant 
Administrator (AA) for Fisheries for NMFS has determined that there is 
good cause to waive the 30-day delay in effective date of the quotas 
and opening dates for the pelagic shark, shark research, blacknose 
shark, non-blacknose small coastal shark, and Gulf of Mexico non-
sandbar large coastal shark fisheries. The effective date for the 
Atlantic non-sandbar LCS fishery will not be subject to this waiver 
because this fishery will not open until later in the year, and 
therefore is not affected by the 30 day delay. This final rule could 
not be completed sooner due to late-arriving information that was 
essential to the action. Additionally, a delay in effectiveness of this 
rule would cause negative economic impacts on fisherman and diminish 
the opportunity for the collection of scientific data, which is 
critical to properly manage the fisheries, resulting in negative 
ecological impacts on the fishery resource itself.
    The final shark specifications are set based on dealer landings 
data that were received as of October 31, 2011. Dealers currently 
submit bi-weekly landings reports to the Southeast Fisheries Science 
Center, and late reporting is a common problem, a problem that NMFS is 
attempting to address with the implementation of electronic dealer 
reporting. Any landings received by a dealer between October 15-31, 
2011, were required to be reported to NMFS by November 10, 2011. Normal 
quality control procedures had to be applied to all shark landings data 
before the amount of over- or under-harvest could be calculated and 
applied to the 2012 quotas. NMFS could not finalize this rule without 
this data, and thus could not publish the rule 30 days in advance of 
the start of the shark season, January 1, 2012.
    Allowing for a delay in the effectiveness of the quotas in this 
rule would result in the closure of the pelagic shark fishery from 
January 1, 2012, until 30 days after the publication date of this rule. 
Most pelagic shark species are captured incidentally in swordfish and 
tuna pelagic longline

[[Page 3397]]

fisheries that will be open in early January. If the quotas in this 
rule are not made effective on as close to January 1, 2012, as 
possible, fishermen would be forced to discard, dead or alive, any 
pelagic sharks that are caught. When the fishery is closed, bycatch and 
dead discards are likely to increase although the impacts on the 
resource would be difficult to quantify. The rate of discards or 
bycatch fluctuates based of a variety of factors: Number of sharks 
captured, number of sharks that can be released alive, number of more 
profitable swordfish or tuna species caught, space in the fish hold for 
these species, and duration of the fishing trip. The opening of the 
shark fishery allows fishermen to keep sharks that may otherwise have 
to be discarded dead.
    Regarding the shark research fishery, NMFS selects a small number 
of fishermen to participate in the shark research fishery each year for 
the purpose of providing NMFS biological and catch data to better 
manage the Atlantic shark fisheries. All the trips and catches in this 
fishery are monitored with 100 percent observer coverage. Delaying the 
opening of the shark research fishery would prevent NMFS' ability to 
maintain the monthly time-series of wintertime abundance for shark 
species or to collect vital biological and regional data during this 
time of year. Preventing NMFS from conducting the necessary research 
trips could limit the ability of NMFS to properly manage the shark 
fisheries, which would be contrary to the public interest.
    Regarding the blacknose shark and non-blacknose SCS fisheries, 
these fisheries have both a directed component, where fishermen target 
SCS, and an incidental component, where the fish are caught and--when 
the fishery is open--landed by fishermen targeting other species such 
as Spanish mackerel and bluefish. The incidental fishery catches SCS 
throughout the year. Delaying this action to allow for a 30-day delay 
in effectiveness would force all fishermen to discard, dead or alive, 
any SCS that are caught before this rule becomes effective. Opening the 
fishery as close to January 1, 2012, as possible, would ensure that any 
mortality associated with landings would be counted against the 
commercial quota in real-time. Additionally, a month-long delay in 
opening the SCS fishery would occur during the time period when 
fishermen typically target SCS species. Therefore, fishermen would 
experience negative economic impacts that would continue until the SCS 
fisheries were opened. Thus, delaying the opening of the SCS fisheries 
would undermine the intent of the rule and is contrary to the public 
interest.
    Regarding the Gulf of Mexico non-sandbar LCS fishery, NMFS received 
comments from fishermen and dealers to change the opening from the 
proposed date to February 15, 2012. In mid- February, market demand for 
shark meat increases and fishermen get a better price per pound. 
Delaying the opening of the non-sandbar LCS fishery would impose 
negative economic impacts on Gulf of Mexico fishermen. Additionally, 
many of the primary species targeted in the non-sandbar LCS fishery are 
locally available at this time and a delay would cause fishermen to 
miss out on fishing opportunities. Opening the fishery on February 15, 
2012, would balance the comments received from all constituents in the 
Gulf of Mexico region and should provide equitable shark fishing 
opportunities to all participants in the Gulf of Mexico region, to the 
extent practicable. Delaying this action to allow for a 30-day delay in 
effectiveness would be detrimental to the public's interest. For the 
reasons described above, the AA finds good cause to waive the 30-day 
delay in effectiveness of the quotas and opening dates for the pelagic 
shark, shark research, blacknose shark, non-blacknose small coastal 
shark, and Gulf of Mexico non-sandbar large coastal shark fisheries.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    In compliance with section 604 of the Regulatory Flexibility Act 
(RFA), NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for 
this final rule, which analyzed the adjustments to the non-sandbar LCS, 
non-blacknose SCS, and porbeagle quotas based on over- and/or 
underharvests from the previous fishing season. The FRFA analyzes the 
anticipated economic impacts of the final actions and any significant 
economic impacts on small entities. The FRFA is below.
    In compliance with section 604(a)(1) of the Regulatory Flexibility 
Act, the purpose of this final rulemaking is, consistent with the 
Magnuson-Stevens Act, to adjust the 2012 annual quotas for non-sandbar 
LCS, sandbar sharks, non- blacknose SCS, blacknose sharks, blue sharks, 
porbeagle sharks, and pelagic sharks (other than porbeagle or blue 
sharks) based on over- and/or underharvests from the previous fishing 
year, where allowable. These adjustments are being implemented 
according to the regulations implemented for 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. While there may be some direct 
negative economic impacts associated with the opening dates for 
fishermen in certain areas, there will be positive effects for others 
as NMFS is delaying the 2012 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. A delay in the 
opening of the season in the Gulf of Mexico region until February 15, 
2012, could potentially result in minor negative economic impacts to 
fishermen who would have to fish in other fisheries to make up for any 
lost non-sandbar LCS revenues during January and part of February, 
while shark dealers and other entities that deal with shark products 
could experience minor negative economic impacts as they may have to 
diversify during the beginning of the season. A delay in the opening of 
the season in the Atlantic region until the effective date of the final 
rule implementing the Atlantic HMS electronic dealer reporting system 
would potentially result in minor negative economic impacts to shark 
fishermen who would have fished earlier in the season, such as in the 
southeast Atlantic where sharks are available early in the fishing 
season. These South Atlantic shark fishermen could have the possibility 
to fish for sharks earlier than in previous fishing seasons.
    Section 604(a)(2) of the Regulatory Flexibility Act requires NMFS 
to summarize significant issues raised by the public in response to the 
Initial Regulatory Flexibility Analysis (IRFA), a summary of NMFS's 
assessment of such issues, and a statement of any changes made as a 
result of the comments. The IRFA was done as part of the proposed rule 
for the 2012 Atlantic Commercial Shark Season Specifications. NMFS did 
not receive any comments specific to the IRFA. However, NMFS did 
receive comments related to the overall economic impacts of the 
proposed rule (see Comments 1 and 3 above). As a result of these 
comments and consistent with Sec.  635.27(b)(1)(ii), NMFS adjusted the 
opening date for the non-sandbar LCS in the Gulf of Mexico region.
    Section 604(a)(3) requires NMFS 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

[[Page 3398]]

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 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. As of October 2011, there were a 
total of approximately 217 directed commercial shark permit holders, 
262 incidental commercial shark permit holders, and 117 commercial 
shark dealers.
    Section 604(a)(4) of the Regulatory Flexibility Act requires NMFS 
to describe the projected reporting, recordkeeping, and other 
compliance requirements of the final rule, including an estimate of the 
classes of small entities which would be subject to the requirements of 
the report or record. None of the actions in this final rule would 
result in additional reporting, recordkeeping, or compliance 
requirements beyond those already analyzed in Amendment 2 and 3 to the 
consolidated HMS FMP.
    Section 604(a)(5) of the Regulatory Flexibility Act requires NMFS 
to describe the steps taken to minimize the economic impact on small 
entities consistent with the stated objectives of applicable statutes. 
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c) (1)-(4)) 
lists four general categories of ``significant'' alternatives that 
would assist an agency in the development of significant alternatives. 
These categories of alternatives are: (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 rule, consistent with the 
Magnuson-Stevens Act, NMFS cannot exempt small entities or change the 
reporting requirements only for small entities. 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 rulemaking, NMFS adjusts quotas 
established and analyzed in Amendment 2 and Amendment 3 to the 2006 
Consolidated HMS FMP by subtracting the underharvest or adding the 
overharvest as allowable. The management measures implemented in this 
rule are within a range previously analyzed in the EA with the 2011 
quota specifications rule. Thus, NMFS 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 over-estimated 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 $4,075 loss in revenue in the porbeagle fishery. The 
adjustment due to the underharvests in 2011 would result in a $330,740 
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 FRFAs 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 NMFS would be preparing annual rulemakings and considered the 
FRFAs in the economic and other analyses at the time.
    For this rule, NMFS reviewed the criterion at 50 CFR Sec.  
635.27(b)(1)(ii)(A-E) 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 opening the shark research, blacknose shark, 
non-blacknose SCS, porbeagle shark, and pelagic shark fisheries on 
January 24, 2012. The direct and indirect economic impacts would be 
neutral on a short- and long-term basis, because NMFS would not change 
the opening dates of these fisheries from the status quo.
    NMFS would delay the opening of the non-sandbar LCS in the Gulf of 
Mexico region until February 15, 2012. 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 about one month 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 $15.46 to $17.67/lb dw, respectively, from 
January through February.
    NMFS is delaying the opening of the non-sandbar LCS in the Atlantic 
region until the effective date of the HMS electronic reporting system. 
The 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 may 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. 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 50 CFR 635.24(a)(8)(i)-(vi), 
should allow NMFS the flexibility in furtherance of opportunities for 
all fishermen in all regions, to the extent practical. Depending on how 
quickly the quota was being harvested, NMFS could reduce the retention 
limits to 0-32 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

[[Page 3399]]

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 
fishery 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 
2012. Thus, allowing the split season in 2012 would cause neutral 
cumulative economic impacts across the region, 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 to the 2006 
Consolidated HMS FMP.

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

    Dated: January 19, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-1337 Filed 1-23-12; 8:45 am]
BILLING CODE 3510-22-P