[Federal Register Volume 77, Number 196 (Wednesday, October 10, 2012)]
[Proposed Rules]
[Pages 61562-61568]
From the Federal Register Online via the Government Printing 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).......... ...............
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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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