[Federal Register Volume 77, Number 196 (Wednesday, October 10, 2012)]
[Proposed Rules]
[Pages 61562-61568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24936]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 120706221-2481-01]
RIN 0648-XC106


Atlantic Highly Migratory Species; 2013 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 2013 fishing season for the Atlantic commercial shark 
fisheries. Quotas would be adjusted as allowable based on any over- 
and/or underharvests experienced during the 2011 and 2012 Atlantic 
commercial shark fishing seasons. We propose to keep the porbeagle 
shark fishery closed in 2013 due to the small quota and

[[Page 61563]]

difficulties in accurately monitoring such a small quota. 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 fishermen in the northwestern Atlantic, including the Gulf of 
Mexico and Caribbean.

DATES: Written comments will be accepted until October 28, 2012.

ADDRESSES:  You may submit comments on this document, identified by 
NOAA-NMFS-2012-0175, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2012-0175 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 2013 Atlantic Shark Commercial Fishing Season.''
     Fax: 301-427-8503, Attn: Karyl Brewster-Geisz or Guy 
DuBeck.
    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 
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.

FOR FURTHER INFORMATION CONTACT: Gu[yacute] DuBeck or Karyl Brewster-
Geisz at 301-427-8503.

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

    This proposed rule would adjust the quota levels for the different 
shark species and complexes for the 2013 Atlantic commercial shark 
fishing season based on over- and underharvests that occurred during 
the 2011 and 2012 fishing seasons, consistent with existing regulations 
at Sec.  635.27(b)(1)(i). Over- and underharvests are accounted for in 
the same region and/or fishery in which they occurred the following 
year, depending on stock status. Shark stocks that are overfished, have 
overfishing occurring, or that have an unknown stock status, or 
complexes that contain one or more stocks that are overfished, have 
overfishing occurring, or that have an unknown stock status, will not 
have underharvest carried over in the following year. Stocks that are 
not overfished and have no overfishing occurring will have any 
underharvest carried over in the following year, up to 50 percent of 
the base quota.
    Although there were underharvests in the sandbar shark, non-sandbar 
large coastal shark, blacknose shark, blue shark, and pelagic shark 
(other than porbeagle or blue sharks) fisheries, those underharvests 
cannot be carried over to the 2013 fishing season because those stocks 
have been determined to be overfished, overfished with overfishing 
occurring, or have an unknown status. Porbeagle sharks have been 
declared to be overfished with overfishing occurring, and the quota was 
overharvested in 2011 and 2012. Thus, for all of these species, the 
2013 proposed quota would be equal to the appropriate base quota minus 
any overharvests that occurred in the 2011 and 2012 fishing seasons.
    However, since the non-blacknose small coastal shark complex has 
been determined not to be overfished and has no overfishing occurring, 
the underharvest (up to 50 percent of the base quota) from the 2012 
fishing season can be applied to the 2013 quota.

2013 Proposed Quotas

    This rule proposes adjustments to the base commercial quotas due to 
over- and underharvests that occurred in 2011 and 2012, where 
allowable, taking into consideration the stock status as required under 
existing regulations.
    The quotas in this proposed rule are based on dealer reports 
received as of August 22, 2012. In the final rule, we will adjust the 
quotas based on dealer reports received as of October 31, 2012. Thus, 
all of the 2013 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 after October 31, 2012, will be used to 
adjust the 2014 quotas, as appropriate. In addition, the 5-year quota 
reduction to account for overharvest of the non-sandbar large coastal 
shark and sandbar shark fisheries established in Amendment 2 to the 
2006 Consolidated HMS FMP ends on December 31, 2012, and quotas will 
increase to annual base levels established in Amendment 2 to the 2006 
Consolidated HMS FMP. We also propose to adjust the non-blacknose small 
coastal shark quota due to underharvest from the 2012 fishing season, 
and to adjust the porbeagle shark quota to account for overharvest from 
the 2011 and 2012 fishing season.
    Due to the small quota and difficulties in accurately monitoring 
such a small quota, we propose to keep the porbeagle shark fishery 
closed in 2013. The porbeagle shark fishery landings in 2012 exceeded 
the quota by 259 percent with the addition of late reports in December 
2011, which must be accounted for in 2013. The combined overharvest in 
2011 and 2012 for the porbeagle shark fishery would result in a very 
small quota (0.5 mt dw; 1,001 lb dw). The proposed 2013 quotas by 
species and species group are summarized in Table 1.

[[Page 61564]]



                                   Table 1--2013 Proposed Quotas and Opening Dates for the Atlantic Shark Fisheries *
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                                                    2012 Annual    Preliminary 2012    Overharvest/       2013 Base      2013 Proposed    Season opening
        Species group               Region             quota         landings \1\      Underharvest      annual quota        quota            dates
                               ................  (A).............  (B).............  (C).............  (D)............  (D+C)..........  ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Sandbar Large Coastal      Gulf of Mexico..  392.8 (866,063    369.8 (815,236    ................  439.5 (968,922   439.5 (968,922   On or about
 Sharks.                                          lb dw).           lb dw).                             lb dw).          lb dw).          January 1,
                                                                                                                                          2013.
                               Atlantic........  183.2 (403,889    32.9 (72,648 lb   ................  188.3 (415,126   188.3 (415,126
                                                  lb dw).           dw).                                lb dw).          lb dw).
Non-Sandbar Large Coastal      No regional       37.5 (82,673 lb   9.1 (20,015 lb    ................  50.0 (110,230    50.0 (110,230
 Shark Research Quota.          quotas.           dw).              dw).                                lb dw).          lb dw).
Sandbar Research Quota.......  ................  87.9 (193,784 lb  24.7 (54,439 lb   ................  116.6 (257,056   116.6 (257,056
                                                  dw).              dw).                                lb dw).          lb dw).
Non-Blacknose Small Coastal    ................  332.4 (732,808    133.8 (294,871    110.8 \2\         221.6 (488,539   332.4 (732,808
 Sharks.                                          lb dw).           lb dw).           (244,269 lb dw).  lb dw).          lb dw).
Blacknose Sharks.............  ................  19.9 (43,872 lb   10.9 (23,991 lb   ................  19.9 (43,872 lb  19.9 (43,872 lb
                                                  dw).              dw).                                dw).             dw).
Blue Sharks..................  ................  273.0 (601,856    8.6 (18,868 lb    ................  273.0 (601,856   273.0 (601,856
                                                  lb dw).           dw).                                lb dw).          lb dw).
Porbeagle Sharks.............  ................  0.7 (1,585 lb     1.9 (4,105 lb     -1.2 \3\ (2,747   1.7 (3,748 lb    0.5 (1,001 lb    Closed for
                                                  dw).              dw).              lb dw).           dw).             dw).             2013.
Pelagic Sharks Other Than      ................  488 (1,075,856    99.7 (219,691 lb  ................  488.0            488.0            On or about
 Porbeagle or Blue.                               lb dw).           dw).                                (1,075,856 lb    (1,075,856 lb    January 1,
                                                                                                        dw).             dw).             2013.
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[ast]All quotas and landings are dressed weight (dw), in metric tons (mt), unless specified otherwise. Table includes landings data through August 22,
  2012, and quotas are subject to change based on landings through October 31, 2012.
\1\ Landings are from January 1, 2012, until August 22, 2012, and are subject to change.
\2\ This adjustment accounts for the underharvest in 2012. While the total underharvest is 198.6 mt dw, we may account for underharvest only up to 50
  percent of the base annual quota or 110.8 mt dw (244,269 lb dw).
\3\ This adjustment accounts for overharvest in 2011 and 2012. After the final rule establishing the 2012 quotas, the porbeagle shark quota was
  overharvested by an additional <0.1 mt dw (227 lb dw). As of August 22, 2012, 1.1 mt dw (2,520 lb dw) was harvested above the 2012 porbeagle shark
  quota. The combined overharvest from 2011 and 2012 is 1.2 mt dw (2,747 lb dw).

1. Proposed 2013 Quotas for Non-Sandbar Large Coastal Sharks and 
Sandbar Sharks Within the Shark Research Fishery
    The 2013 proposed commercial quotas within the shark research 
fishery are 50.0 mt dw (110,230 lb dw) for non-sandbar large coastal 
sharks and 116.6 mt dw (257,056 lb dw) for sandbar sharks. Since the 5-
year quota reduction to account for overharvest of the non-sandbar 
large coastal shark and sandbar shark fisheries ends on December 31, 
2012, the 2013 proposed quotas increase to the levels established in 
Amendment 2 to the 2006 Consolidated HMS FMP.
    Within the shark research fishery, as of August 22, 2012, 
preliminary reported landings of non-sandbar large coastal sharks were 
at 24 percent (9.1 mt dw) of their 2012 quota levels, and sandbar shark 
reported landings were at 28 percent (24.7 mt dw) of their 2012 quota 
levels. Reported landings have not exceeded the 2012 quota to date. 
Therefore, based on preliminary estimates and consistent with the 
current regulations at Sec.  635.27(b)(1)(vii), we are not proposing to 
adjust 2013 quotas in the shark research fishery based on any 
overharvests.
    Under Sec.  635.27(b)(1)(i), because sandbar sharks and scalloped 
hammerhead sharks within the non-sandbar large coastal shark complex 
have been determined to be either overfished or overfished with 
overfishing occurring, underharvests for these species and/or complexes 
would not be applied to the 2013 quotas. Therefore, we propose 2013 
quotas for non-sandbar large coastal sharks and sandbar sharks within 
the shark research fishery of 50.0 mt dw (110,230 lb dw) and 116.6 mt 
dw (257,056 lb dw), respectively. NMFS has analyzed the environmental 
effects of this base quota in the Environmental Impact Statement for 
Amendment 2. This base quota of 116.6 mt dw was implemented in 
Amendment 2, but the quota was reduced to 87.9 mt dw for 5 years to 
account for large overharvest in 2007.
2. Proposed 2013 Quotas for the Non-Sandbar Large Coastal Sharks in the 
Gulf of Mexico Region
    The 2013 proposed quota for non-sandbar large coastal sharks in the 
Gulf of Mexico region is 439.5 mt dw (968,922 lb dw). Since the 5-year 
quota reduction for overharvest of the non-sandbar large coastal shark 
fishery ends on December 31, 2012, the 2013 quotas would revert to the 
levels established in Amendment 2 to the 2006 Consolidated HMS FMP.
    As of August 22, 2012, preliminary reported landings for non-
sandbar large coastal sharks in the Gulf of Mexico region were at 94 
percent (369.8 mt dw) of their 2012 quota levels. Reported landings 
have not exceeded the 2012 quota to date. Therefore, based on 
preliminary estimates and consistent with the current regulations at 
Sec.  635.27(b)(1)(vii), we are not proposing to adjust 2013 quotas in 
the non-sandbar large coastal sharks in the Gulf of Mexico region, 
because there have not been any overharvests.
    Given the status of scalloped hammerhead sharks within the non-
sandbar large coastal shark complex, any underharvests cannot be 
accounted for pursuant to Sec.  635.27(b)(1)(iii). Therefore, we 
propose 2013 quotas for non-sandbar large coastal sharks in the Gulf of 
Mexico region of 439.5 mt dw (968,922 lb dw), consistent with Amendment 
2 levels.

[[Page 61565]]

3. Proposed 2013 Quotas for the Non-Sandbar Large Coastal Sharks in the 
Atlantic Region
    The 2013 proposed quota for non-sandbar large coastal sharks in the 
Atlantic region is 188.3 mt dw (415,126 lb dw). Since the 5-year quota 
reduction for overharvest of the non-sandbar large coastal shark 
fishery ends on December 31, 2012, the 2013 quotas would increase to 
the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.
    As of August 22, 2012, preliminary reported landings for non-
sandbar large coastal sharks in the Atlantic region were at 18 percent 
(32.9 mt dw) of their 2012 quota levels. To date, reported landings do 
not exceed the quota. As such, we propose a 2013 commercial non-sandbar 
large coastal sharks quota in the Atlantic region of 188.3 mt dw 
(415,126 lb dw).
4. Proposed 2013 Quotas for Small Coastal Sharks and Pelagic Sharks
    The 2013 proposed annual commercial quotas for non-blacknose small 
coastal sharks, blacknose sharks, blue sharks, porbeagle sharks, and 
pelagic sharks (other than porbeagle or blue sharks) are 332.4 mt dw 
(732,809 lb dw), 19.9 mt dw (43,872 lb dw), 273 mt dw (601,856 lb dw), 
0.5 mt dw (1,001 lb dw), and 488 mt dw (1,075,856 lb dw), respectively.
    As of August 22, 2012, preliminary reported landings of non-
blacknose small coastal sharks, blacknose sharks, blue sharks, 
porbeagle sharks, and pelagic sharks (other than porbeagle and blue 
sharks) were at 40 percent (133.8 mt dw), 55 percent (10.9 mt dw), 3 
percent (8.6 mt dw), 259 percent (1.9 mt dw), and 20 percent (99.7 mt 
dw), of their 2012 quota levels, respectively. As described above, 
while we may adjust quotas for underharvests only when allowable 
depending on the stock status, we will adjust quotas for overharvests.
    Non-blacknose small coastal sharks 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 small coastal sharks therefore could be applied to the 
2013 quotas. During the 2012 fishing season to date, the non-blacknose 
small coastal shark quota has been underharvested by 110.8 mt dw 
(244,269 lb dw). Accordingly, we propose to increase the 2013 non-
blacknose small coastal shark quota to adjust for anticipated 
underharvests in 2012 as allowed. The proposed 2013 adjusted base 
annual quota for non-blacknose small coastal sharks is 332.4 mt dw 
(732,809 lb dw) (221.6 mt dw annual base quota + 110.8 mt dw 2012 
underharvest = 332.4 mt dw 2013 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 2013 quotas. 
In the final rule establishing the 2012 quotas, we accounted for an 
overharvest of porbeagle sharks of 1.0 mt dw (2,163 lb dw) using data 
that was reported as of October 31, 2011. Between that date and 
December 31, 2011, porbeagle sharks were overharvested by an additional 
227 lb dw (less than 0.1 mt dw). As of August 22, 2012, an additional 
1.1 mt dw (2,520 lb dw) has been overharvested above the 2012 porbeagle 
shark quota. The proposed 2013 adjusted annual commercial porbeagle 
quota is 0.5 mt dw (1,001 lb dw) (1.7 mt dw annual base quota - < 0.1 
mt dw 2011 overharvest - 1.1 mt dw 2012 overharvest = 0.5 mt dw 2012 
adjusted annual quota), but we propose to keep the fishery closed in 
2013 due to the small quota and difficulties in accurately monitoring 
such a small quota.
    Blacknose sharks and other pelagic species are overfished, have 
overfishing occurring, or have an unknown status. As of August 22, 
2012, the 2012 commercial quota had not been reached or exceeded. 
Therefore, the 2013 proposed quotas would be the base annual quotas for 
blacknose sharks, blue sharks, and pelagic sharks (other than blue and 
porbeagle sharks), or (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 2013 Atlantic Commercial 
Shark Fishing Season

    For each fishery, we considered the seven ``Opening Fishing Season 
Criteria'' listed at 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.
    Thus, we examined the 2011 and 2012 over- and/or underharvests of 
the different species/complexes to determine the effects of the 2013 
proposed quotas on fishermen across regional fishing area. The 
potential season length and previous catch rates were examined to 
ensure that equitable fishing opportunities would be provided to 
fishermen. Lastly, we examined the seasonal variation of the different 
species/complex and the effects on fishing opportunities.
    In addition to these criteria, we also considered other relevant 
factors, such as general input from the public and potential management 
measures in Amendment 5 to the 2006 Consolidated HMS FMP before 
arriving at the proposed opening dates for the 2013 Atlantic shark 
fisheries.
    We propose that the 2013 Atlantic commercial shark fishing season 
for the non-sandbar large coastal sharks fishery in the Gulf of Mexico 
and Atlantic, shark research, non-blacknose small coastal sharks, 
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, open on or about January 1, 2013, with 
the publication of the final rule for this action.
    In the Gulf of Mexico non-sandbar large coastal shark fishery, 
opening the fishing season again on or about January 1 would provide, 
to the extent practicable, equitable opportunities across the fisheries 
management region as it did for the 2012 fishing season. This opening 
date is consistent with all the criteria listed in Sec.  
635.27(b)(1)(ii), but particularly with the requirement that we 
consider the 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 (Sec.  635.27(b)(1)(ii)(C)).
    In the Atlantic region, we delayed the opening of the non-sandbar 
large coastal shark fishery until July 15 in 2010, 2011, and 2012, in 
order to allow for more equitably distributed shark fishing 
opportunities, as intended by

[[Page 61566]]

Amendment 2 to the 2006 Consolidated HMS FMP. In 2012, we proposed to 
open the Atlantic non-sandbar large coastal shark fishery on the 
effective date of the final rule implementing the Atlantic HMS 
Electronic Dealer Reporting System (76 FR 37750) or July 15, 2012, 
whichever occurred first. Because the Atlantic HMS Electronic Dealer 
Reporting System was delayed, the fishery opened on July 15. The HMS 
Electronic Dealer Reporting System final rule has now published and the 
system will be implemented on January 1, 2013 (77 FR 47303). As such, 
we are proposing to use the inseason trip limit adjustment criteria in 
the regulations per Sec.  635.24(a)(8) for the first time. The inseason 
trip limit adjustment criteria would allow more equitable fishing 
opportunities across the fishery. The proposed opening date of January 
1 would allow fishermen to harvest some of the 2013 quota at the 
beginning of the year, when sharks are more prevalent in the South 
Atlantic area. If it appears that the quota will be taken too quickly 
to allow fishermen throughout the entire region an opportunity to fish, 
we could reduce the commercial retention limits per while being 
consistent with Sec.  635.27(b)(1)(ii)(A), (B), (C) and (E). This 
management measure is consistent with all the inseason trip limit 
adjustment criteria listed in Sec.  635.24(a)(8), but particularly with 
the requirement that catch rates in one part of a region not preclude 
vessels in another part of that region from having a reasonable 
opportunity to harvest a portion of the relevant quota (Sec.  
635.24(a)(8)(vi)).
    If that occurs, we would file with the Office of the Federal 
Register for publication notification of any inseason adjustments to 
reduce retention limits to between 0-36 sharks per trip. We could later 
increase the commercial retention limits per trip, such as on or about 
July 15, 2013, to provide fishermen in the North Atlantic area an 
opportunity to retain non-sandbar large coastal sharks when they are 
prevalent in that area, if warranted considering all relevant factors. 
Based on the fishing rates in the 2009 fishing season, if we open the 
fishery earlier than July 15 and do 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 migrate 
to the North Atlantic area.
    We also propose not to open the porbeagle fishery in 2013. The 
porbeagle fishery landings in 2012 exceeded the quota by 259 percent 
with the addition of late reports in December 2011, which must be 
accounted for in 2013. The combined overharvest in 2011 and 2012 for 
the porbeagle fishery would result in a very small quota (0.5 mt dw; 
1,001 lb dw). Due to the small quota and difficulties in accurately 
monitoring such a small quota, we propose to keep the fishery closed in 
2013. This proposal is based on the availability of the annual quota 
based on overharvests in the previous fishing seasons (Sec.  
635.27(b)(1)(ii)(A)).
    At this time, we would be implementing the proposed quotas based on 
current regulations. Other future actions, such as the anticipated 
Amendment 5 to the 2006 Consolidated HMS FMP, which would address 
several recent shark stock assessments, could affect the quotas 
implemented in the 2013 shark season rule. Any changes to the quotas 
would be addressed in any such later Amendment.
    All of the shark fisheries, except for porbeagle sharks (which 
would remain closed the entire year), would remain open until December 
31, 2013, or until we determine that the fishing season landings for 
sandbar shark, non-sandbar large coastal sharks, blacknose sharks, non-
blacknose small coastal sharks, blue 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), we 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 we 
announce, via a notice in the Federal Register, that additional quota 
is available, the fishery for the shark species group and, for non-
sandbar large coastal sharks, 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. We solicit comments on this proposed 
rule by October 28, 2012 (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 
Gu[yacute] DuBeck 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.
    These proposed specifications are exempt from review under 
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, section 603(b)(1) 
of the RFA requires that we explain the purpose of the rule. This rule, 
consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS 
FMP and its amendments, is being proposed to adjust the 2013 proposed 
quotas for non-sandbar large coastal sharks, sandbar sharks, blacknose 
sharks, non-blacknose small coastal sharks, 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, we 
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. Not opening the porbeagle 
shark fishery in 2013 is due to the difficulties in accurately 
monitoring the small quota. This would have beneficial ecological 
impacts for porbeagle sharks, while the negative economic impacts are 
described below. An additional purpose is to use implemented management 
measures to allow inseason adjustments in the trip limits to slow the 
fishery down during the season, as necessary. This management measure 
would provide, to the extent practicable, equitable opportunities 
across the fishing management region while also considering the 
ecological needs of the species.
    Under section 603(b)(2) of the RFA, we must explain the rule's 
objectives, which are to: (1) Adjust the annual quotas for porbeagle 
sharks due to overharvests in 2011 and 2012, and for non-blacknose 
small coastal sharks due to underharvests in 2012; (2) establish

[[Page 61567]]

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 large coastal sharks.
    Section 603(b)(3) of the RFA requires Federal agencies to provide 
an estimate of the number of small entities to which the rule would 
apply. We consider all HMS permit holders to be small entities because 
they either had average annual receipts of less than $4.0 million for 
fish-harvesting, average annual receipts of less than $6.5 million for 
Charter/headboat, 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 we consider to be small entities according to 
the size standards set by the SBA. The proposed rule would apply to the 
approximately 213 directed commercial shark permit holders, 265 
incidental commercial shark permit holders, and 96 commercial shark 
dealers as of August 2012.
    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 as domestically implemented, domestic laws, 
and 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 (ESA), the National Environmental Policy Act, the Paperwork 
Reduction Act, and the Coastal Zone Management Act.
    In compliance with section 603(c) of the RFA, each IRFA must also 
contain a description of any significant alternatives to the proposed 
rule which would accomplish the stated objectives of applicable 
statutes and minimize any significant economic impact of the proposed 
rule on small entities. Additionally, the RFA (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 ESA, we cannot exempt small entities or change the reporting 
requirements only for small entities because all the entities affected 
are considered small entities. We do 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 Environmental Assessment (EA) 
that accompanied the 2011 shark quota specifications rule (75 FR 76302; 
December 8, 2010). Thus, NMFS 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 as 
allowable. 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 shark quota specifications rule. Thus, 
NMFS has limited flexibility to modify the management measures or 
quotas in this rule, the impacts of which were analyzed in previous 
regulatory flexibility analyses.
    Based on the 2010 ex-vessel price ($0.67/large coastal shark lb, 
$0.68/small coastal shark lb, $1.21/pelagic lb, and $13.48/lb for shark 
fins), fully harvesting the unadjusted 2013 Atlantic shark commercial 
baseline quotas could result in total fleet revenues of $6,242,548. We 
propose to keep the porbeagle shark fishery closed in 2013, which 
results in the total revenue loss of $7,061 (if we kept it open, but 
reduced it by the overharvests of 2011 and 2012, the net revenue loss 
in the fishery would amount to $5,175). The upward adjustment due to 
the underharvests in 2012 non-blacknose small coastal shark fishery 
would result in a $330,740 gain in revenues. 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 adjust the trip limits inseason through proposed 
and final rulemaking, are expected to be minimal. Amendments 2 and 3 to 
the 2006 Consolidated HMS FMP and the EA with the 2011 shark quota 
specifications rule assumed we would be conducting annual rulemakings 
and considered the IRFAs in the economic and other analyses at the 
time.
    For this rule, we reviewed the criteria at Sec.  635.27(b)(ii) to 
determine when opening each fishery would provide equitable 
opportunities for fishermen while also considering the ecological needs 
of the different species. The opening of the fishing season could vary 
depending upon the available annual quota, catch rates, and number of 
fishing participants during the year. For the 2013 fishing season, we 
are proposing to open the non-sandbar large coastal shark fishery in 
the Gulf of Mexico and Atlantic, shark research, blacknose shark, non-
blacknose small coastal shark, and pelagic shark fisheries on the 
effective date of the final rule for this action (expected to be on or 
about January 1). The direct and indirect economic impacts would be 
neutral on a short- and long-term basis, because we are proposing not 
to change the opening dates of these fisheries from the status quo.
    Opening the non-sandbar large coastal sharks in the Atlantic region 
on the effective date of the final rule for this action (expected to be 
on or about January 1) would result in short-term, direct, moderate, 
beneficial economic impacts as fishermen and dealers in the south 
Atlantic would be able to fish for non-sandbar large coastal sharks 
starting on or about January. South Atlantic fishermen would be able to 
fish earlier in the 2013 fishing season compared to the 2010, 2011, and 
2012 fishing seasons, which did not start until July 15. South Atlantic 
fishermen commented during the public comment period for the 2011 and 
2012 shark specification rulemaking 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 in 2013, we 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 us the 
flexibility to further provide

[[Page 61568]]

equitable fishing opportunities for fishermen across all regions, to 
the extent practicable. Depending on how quickly the quota is being 
harvested, we could reduce the retention limits to 0-36 sharks per trip 
to ensure that fishermen farther north have sufficient quota for a 
fishery later in the 2013 fishing season. The direct impacts to shark 
fishermen in the Atlantic region of reducing the trip limit will 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 potential January 1 and July 15 
opening for the non-sandbar large coastal sharks would have direct, 
minor, beneficial economic impacts in the short-term for fishermen as 
they would have access to the non-sandbar large coastal shark quota in 
2013. Fishermen in the North Atlantic area did not have or had limited 
access to the non-sandbar large coastal shark 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 region as they would also have access to non-sandbar 
large coastal shark products in 2013. Thus, allowing the split season 
in 2013 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.
    We also propose to keep the porbeagle fishery closed in 2013. This 
action would cause direct and indirect moderate, adverse, short-term 
economic impacts on shark fishermen and other entities that rely on 
porbeagle sharks. The long-term economic impacts would be neutral if we 
open the porbeagle shark fishery in 2014 because the fishery would open 
in 2014 under the annual base quota of 1.7 mt dw.

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

    Dated: October 3, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-24936 Filed 10-9-12; 8:45 am]
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