[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Rules and Regulations]
[Pages 75896-75905]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30961]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 120706221-2705-02]
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: Final rule; fishing season notification.

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SUMMARY: This final rule establishes the opening dates and quotas for 
the 2013 fishing season for the Atlantic commercial shark fisheries 
(sandbar sharks, non-sandbar large coastal sharks, blue sharks, 
porbeagle sharks, and pelagic sharks (other than porbeagle and blue 
sharks), non-blacknose small coastal sharks, or blacknose sharks). 
Baseline quotas are adjusted as required based on any over- and/or 
underharvests experienced during the 2011 and 2012 Atlantic commercial 
shark fishing seasons. We used previously-implemented regulatory 
criteria that contain adaptive management measures to determine the 
opening dates. We also plan to use these measures throughout the 
fishing year for inseason adjustments to the shark retention limits, as 
appropriate, to provide, to the extent practicable,

[[Page 75897]]

fishing opportunities for commercial shark fishermen in all regions and 
areas. These actions are expected to provide fishing opportunities for 
commercial shark fishermen in the northwestern Atlantic, including the 
Gulf of Mexico and Caribbean. In addition, we are keeping the porbeagle 
shark quota closed in 2013 due to overharvests from 2011 and 2012 that 
resulted in no quota availability for 2013.

DATES: This rule is effective on January 1, 2013. The 2013 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: Gu[yacute] DuBeck or Karyl Brewster-
Geisz 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 Highly Migratory 
Species (HMS) Fishery Management Plan (FMP) and its amendments under 
the Magnuson-Stevens Act are implemented by regulations at 50 CFR part 
635.
    On October 10, 2012, we published a rule (77 FR 61562) proposing 
the 2013 opening dates for the Atlantic commercial shark fisheries, and 
quotas based on shark landings information as of August 22, 2012. The 
proposed rule also considered using adaptive management measures such 
as flexible opening dates for the fishing seasons (50 CFR 
635.27(b)(1)(i)) and inseason adjustments to shark trip limits (50 CFR 
635.24(a)(8)) to provide flexibility in managing the furtherance of 
equitable fishing opportunities, to the extent practicable, for 
commercial shark fishermen in all regions and areas. This rule is the 
first time NMFS anticipates using the inseason adjustments. The October 
2012 proposed rule contains details regarding the proposal and how the 
quotas were calculated that are not repeated here.
    The comment period on the proposed rule ended on October 28, 2012. 
During that time, we received 12 written and oral comments 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, the fishing seasons for all the shark species/complexes will 
open on January 1, 2013, as proposed in the October 10, 2012 proposed 
rule. Also, some of the quotas have changed since the proposed rule 
based on updated landings information received as of November 26, 2012.
    This final rule serves as notification of the 2013 opening dates of 
the Atlantic commercial shark fisheries and 2013 quotas, based on shark 
landings updates as of November 26, 2012, pursuant to 50 CFR 
635.27(b)(1)(i) through (b)(1)(vi). This action does not change the 
annual base commercial quotas established under Amendments 2 and 3 to 
the 2006 Consolidated HMS FMP for sandbar sharks, non-sandbar large 
coastal sharks, blue sharks, porbeagle sharks, and pelagic sharks 
(other than porbeagle and blue sharks), non-blacknose small coastal 
sharks, or blacknose sharks. Any such changes would be performed 
through a separate action. Rather, this action adjusts the annual base 
commercial quotas based on over- and/or underharvests that occurred in 
2011 and 2012, consistent with existing regulations.

Response to Comments

    We received comments from 12 fishermen, dealers, and other 
interested parties on the proposed rule. All written comments can be 
found at http://www.regulations.gov/ and by searching for RIN 0648-
XC106.

A. Non-Sandbar Large Coastal Shark Comments

    Comment 1: Commenters noted that non-sandbar large coastal shark 
meat is easier to sell in the Gulf of Mexico during the religious 
period of Lent (February 13 to March 30, 2013) and preferred an opening 
date of February 6, 2013.
    Response: In the proposed rule, we considered a season opening date 
of January 1, 2013, to further equitable fishing opportunities, to the 
extent practicable, for commercial shark fishermen in all parts of the 
Gulf of Mexico region. 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)). Taking into consideration these criteria, we have 
determined that keeping the proposed opening date of January 1, 2013, 
for the non-sandbar large coastal shark fishery in the Gulf of Mexico 
region promotes equitable fishing opportunities throughout this region. 
Such an opening date would not prevent fishermen and dealers from 
fishing for and selling sharks during the religious period of Lent 
unless the quota was fully harvested by that time and the fishery 
closed.
    As an example of how we considered the criteria, we note that the 
State of Louisiana closes its state waters from April 1 through June 30 
for their shark pupping season. Therefore, if we opened the shark 
fishing season in February, Louisiana fishermen might not have the same 
opportunity as fishermen elsewhere in the Gulf of Mexico to harvest the 
available quota because state waters would close shortly after the 
season opened. This type of situation occurred in both 2011 and 2012, 
when fishermen from the State of Louisiana had only about a month to 
fish before the state closed their state waters to shark fishing. As 
such, we are not changing the proposed opening date of the non-sandbar 
large coastal shark fishery in order to ensure, to the extent 
practicable, that fishermen throughout the Gulf of Mexico have 
equitable fishing opportunities.
    Comment 2: We received opposing comments regarding the proposed 
opening date for the Atlantic non-sandbar large coastal shark fishery. 
Fishermen from the southern portion of the Atlantic region supported 
the proposed opening date of January 1, as they feel that the opening 
date will provide them an opportunity to participate in a winter 
fishery. Fishermen from the northern portion of the Atlantic region did 
not want a January 1 opening date since they are concerned that they 
will not have an opportunity to harvest the quota.
    Response: In recent years, in recognition that fishermen in the 
southern portion of the region could harvest the entire quota before 
the sharks have migrated north where they could be harvested by 
fishermen in the northern region, we have opened the non-sandbar large 
coastal shark fishing season in July. Such an opening date allows 
fishermen in both areas of the region an opportunity to fully harvest 
the quota, and was successful in providing fishing opportunities.
    However, in 2013, we plan to open the non-sandbar large coastal 
shark fishery in the Atlantic region on January 1, 2013. As described 
in the proposed rule for that action, we plan to implement the adaptive 
management measures from the 2011 shark season rule (75 FR 76302; 
December 8, 2010) to adjust via inseason actions the retention limit 
for non-sandbar large coastal sharks. Specifically, if the quota is 
being harvested quickly and we calculate that the northern fishermen 
have not yet had an opportunity to fish for non-sandbar large coastal 
shark because the sharks

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have not migrated, we can reduce the trip limits to slow fishing (e.g., 
change the trip limit from 36 sharks to 15 sharks or even 0 sharks) and 
then increase them again when we estimate that the sharks have migrated 
north. This process should ensure equitable fishing opportunities for 
fishermen along the Atlantic coast while accommodating fishermen's 
requests from both the southern and northern portions of the Atlantic 
region. We had not used these measures previously because of concern 
about our ability to monitor the quota on a real-time basis. However, 
with the implementation of the HMS electronic reporting system (77 FR 
47303; August 8, 2012) on January 1, 2013, we should be able to monitor 
the quota on a real-time basis and respond quickly as needed. This 
ability, along with the inseason trip limit adjustment, should allow us 
the additional flexibility to further opportunities for all fishermen 
in all regions, to the extent practicable, while also ensuring that 
quotas are not exceeded.
    Comment 3: Many commenters agreed with the effective ``increase'' 
in the non-sandbar large coastal shark quotas and retention limits in 
2013 and asked for the reasoning behind this increase.
    Response: In Amendment 2 to the 2006 Consolidated HMS FMP, we 
established a 5-year quota reduction to account for overharvest of the 
non-sandbar large coastal shark and sandbar shark fisheries that 
occurred in 2007. This 5-year quota reduction ends on December 31, 
2012. Therefore, quotas and retention limits for large coastal sharks 
revert back to base levels in 2013, consistent with Amendment 2 to the 
2006 Consolidated HMS FMP.
    Comment 4: We received a request to investigate the geographical 
distribution of non-sandbar large coastal shark landings in the 
Atlantic throughout the season.
    Response: This issue is beyond the scope of this rulemaking, which 
adjusts the quotas and establishes opening dates. We have reviewed this 
type of information in past rules, including in Amendment 1 to the 2006 
Consolidated HMS FMP on Essential Fish Habitat (EFH) (74 FR 28018; June 
12, 2009), Amendment 2 to the 2006 Consolidated HMS FMP on shark 
management (73 FR 35778, June 24, 2008; corrected at 73 FR 40658, July 
15, 2008), and the 2011 shark season rule (75 FR 76302; December 8, 
2010). In Amendment 1 to the 2006 Consolidated HMS FMP on EFH, we 
reviewed the geographical range of all HMS and analyzed the fishing 
impacts on the EFH for these species. We plan to review EFH in the 
future and such review necessarily would include the species' 
geographical range and other relevant analyses, such as species 
distribution through time. Thus, while re-investigating the 
geographical distribution for the large coastal shark fishery is beyond 
the scope of this rulemaking, we may review the issue in future 
rulemakings.
    Comment 5: NMFS should consider increasing the quotas of more 
dangerous shark species like tiger sharks.
    Response: We do not manage sharks or establish shark quotas based 
on how dangerous a species may be. Rather, we manage sharks based on 
the best available science for a particular species and legal 
requirements, which include maintaining or conserving the stock and its 
yield. Tiger sharks are included as part of the non-sandbar large 
coastal shark complex for various reasons, including the lack of a 
stock specific assessment, the fact that tiger sharks are often caught 
on the same type of gear as other non-sandbar large coastal sharks, and 
because tiger sharks are not a major species in the commercial fishery. 
The quota for non-sandbar large coastal sharks was established in 
Amendment 2 to the 2006 Consolidated HMS FMP based on the best 
available science and legal requirements. We would consider 
establishing a species-specific commercial quota for tiger sharks in a 
future rulemaking if the scientific advice indicated such action was 
supportable and warranted.

B. Porbeagle Shark Comments

    Comment 6: We received several comments regarding the proposal not 
to open the porbeagle shark quota in 2013. Several commenters supported 
NMFS' decision not to allow porbeagle shark landings because of the 
small amount of quota that we thought would be available at the 
proposed rulemaking stage. Other commenters indicated that not allowing 
porbeagle shark landings would result in a lot of dead discards, since 
porbeagle sharks are caught incidentally in other fisheries in the 
north Atlantic area.
    Response: We proposed not to open the porbeagle shark quota in 2013 
due to the small adjusted quota (0.5 mt dw) available once overharvests 
from 2011 and 2012 were accounted for, and due to difficulties in 
accurately monitoring such a small quota. Since the publication of the 
proposed rule, updated landings data indicate additional porbeagle 
shark landings, which resulted in a combined overharvest from 2011 and 
2012 that exceeds the 2013 base commercial quota. Specifically, in 
2011, updated landings data indicate an additional 0.8 mt dw (1,781 lb 
dw) of landings. In the proposed rule, we accounted for 0.1 mt dw (227 
lb dw) of 2011 porbeagle shark landings that were reported after the 
2012 shark season rule was published. Additionally, as of November 26, 
2012, a total of 1.9 mt dw was reported landed in 2012, which is 1.2 mt 
dw (2,614 lb dw) higher than the 2012 porbeagle shark quota. In total, 
the actual combined overharvest from 2011 and 2012 is 2.1 mt dw (4,622 
lb dw). This combined overharvest exceeds the base 2013 commercial 
landings quota of 1.7 mt dw (3,748 lb dw) by 0.4 mt dw (874 lb dw). 
Therefore, based on preliminary estimates and consistent with the 
current regulations at Sec.  635.27(b)(1)(i)(A), the overharvested 
amount must be deducted from future years' fishing quotas. After the 
appropriate deductions, no quota is available for commercial porbeagle 
shark landings in 2013, and we are planning to reduce the 2014 fishing 
quota to account for the remaining overharvest.
    We understand that not allowing porbeagle shark landings means that 
any porbeagle sharks that are caught incidentally during other fishing 
must be discarded, either alive or dead. However, while we account for 
dead discards in establishing the total allowable catch for the 
species, dead discards are not part of the commercial porbeagle shark 
quota. In Amendment 2 to the 2006 Consolidated HMS FMP, we established 
a rebuilding plan for porbeagle sharks that set the total allowable 
catch at 11.3 mt dw. This total allowable catch caps fishing mortality, 
which encompasses commercial landings, recreational landings, and 
commercial dead discards. The commercial porbeagle quota was 
established at 1.7 mt dw, while the recreational catch, including 
landings in tournaments, was 0.1 mt dw and commercial discards were 9.5 
mt dw. Any dead discards that occur will be accounted for and used in 
future stock assessments and any adjustments that result from those 
assessments.
    Comment 7: NMFS needs to address the large number of porbeagle 
sharks that are caught in the recreational fishery and add porbeagle 
sharks to the prohibited species list.
    Response: This comment is beyond the scope of this rulemaking. This 
rulemaking focuses on adjusting the commercial shark quotas based on 
over- and underharvests from previous years and establishing opening 
dates for the 2013 commercial shark season. Restricting the catches of 
porbeagle sharks in the recreational fishery and any consideration of 
adding them to the prohibited species list could be

[[Page 75899]]

addressed in a future rulemaking if deemed appropriate at that time.

C. General Comments

    Comment 8: 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 2013 
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 Amendments 2 and Amendment 
3 to the 2006 Consolidated HMS FMP, and are being reviewed again for 
some shark species in response to new stock assessments through draft 
Amendment 5 to the 2006 Consolidated HMS FMP.
    Comment 9: A commenter was happy that NMFS did not change the 
regulations for the small coastal shark fisheries, including the non-
blacknose and blacknose shark fisheries, in 2013.
    Response: As noted in Response to Comment 8, the 2013 shark season 
rule establishes commercial quotas based on over- and underharvest in 
2012, and sets the opening dates for the non-blacknose small coastal 
shark and blacknose shark fishing seasons. Since the non-blacknose 
small coastal shark fishery is not overfished with no overfishing 
occurring, any underharvests for the non-blacknose small coastal sharks 
therefore could be applied to the 2013 quotas, pursuant to 50 CFR 
635.27(b)(i)(B). However, blacknose sharks are overfished with 
overfishing occurring, so the 2013 final quotas are the base annual 
quotas for blacknose sharks. Since both fisheries remained open for the 
entire year, we decided to open the fishery again on January 1. Any 
other changes to the fisheries beyond the opening dates and adjusting 
the quotas are outside the scope of this rulemaking.
    Comment 10: We received a comment on how NMFS determines if a 
species is ``underharvested.'' The commenter noted that annual landings 
less than the available quotas could indicate that stock populations 
have declined over time due to overfishing.
    Response: A species is underharvested if the annual quota was not 
fully landed. In 2011, the Gulf of Mexico and Atlantic non-sandbar 
large coastal sharks, shark research, non-blacknose small coastal 
sharks, blacknose sharks, blue sharks, and pelagic sharks (other than 
porbeagle and blue sharks) quotas were all underharvested, since the 
landings did not reach the annual quotas. Even though many of the 
fishing quotas were underharvested, this does not necessarily indicate 
a decline in the stock populations. There are many factors that can 
impact the amount of shark fishing every year. Factors like weather, 
shark migratory patterns, and market prices would affect fishing effort 
and catch rates of shark fishermen. In addition, annual fishing quotas 
were established to end overfishing and to ensure that the stock can 
withstand the current fishing effort and continue to rebuild in the 
future. We assess stocks on a regular basis to ensure that stocks are 
rebuilding, if appropriate, and their status is being maintained or 
improved.
    Comment 11: We received a question on how NMFS accounts for illegal 
landings or information withheld about commercial catches, and how they 
are factored into the final quotas.
    Response: We use dealer landings and fishermen logbook data to 
establish the annual landings. To the extent that illegal landings are 
included in this data, they are considered in establishing annual 
landings and used for quota monitoring purposes. Some illegal landings 
are not reported in logbooks or dealer reports (e.g., sharks harvested 
by Mexican lanchas in the Gulf of Mexico) and are not used for quota 
monitoring purposes. However, when NMFS has estimates of illegal 
landings, NMFS uses that data to establish annual quotas, as 
appropriate, and in stock assessments, which in turn helps determine 
the annual baseline quotas. For the 2013 shark season rule, we used 
reported landings data from October 31 to December 31, 2011, and 2012 
fishing year landings data as of November 26, 2012, to determine if any 
shark species or complex was overharvested. Any reported landings 
beyond November 26, 2012, will be accounted for the 2014 annual quotas. 
Management likely would not have access to landings information beyond 
November 26, 2012, until January 1, 2013. Therefore, we used the most 
recent available information to allow us to properly analyze the 
fishery and open the fishery in January.
    Comment 12: We received a comment asking how the Agency defines the 
term ``equitable fishing opportunities.''
    Response: We define equitable fishing opportunities as fair 
distribution of the annual quota to fishermen located throughout a 
region across states consistent with legal requirements including 
National Standard 4 of the Magnuson-Stevens Act. The adaptive 
management measures allowing inseason adjustments to trip limits, in 
combination with the implementation of the HMS electronic dealer 
reporting system, which allows for more real-time reporting by dealers, 
should provide us a greater ability to ensure equitable fishing 
opportunities for fishermen located in the Atlantic or in the Gulf of 
Mexico regions. Inseason adjustment of the trip limit will provide us 
additional control over how slowly or quickly the quota is being taken 
and provide quota for fishermen throughout a region.
    Comment 13: NMFS should give the increased sandbar shark research 
quota to the normal commercial fishery since the research fishery has 
harvested less than half of the 2012 sandbar shark quota.
    Response: This comment is beyond the scope of this rulemaking. In 
part due to the small amount of sandbar shark quota available, in 
Amendment 2 to the 2006 Consolidated HMS FMP, we established a shark 
research fishery to maintain time series data for stock assessments and 
to meet our research objectives. The shark research fishery also allows 
selected commercial fishermen the opportunity to land and sell sandbar 
sharks. Only the commercial shark fishermen selected to participate in 
the shark research fishery are authorized to land sandbar sharks 
subject to the sandbar quota available each year. Changes to this part 
of the fishery are outside the scope of this rulemaking. This issue 
could be analyzed in future rulemakings if deemed appropriate.

Changes From the Proposed Rule

    We made several changes to the proposed rule as described below.
    1. We changed the final non-blacknose small coastal and porbeagle 
shark quotas based on landings updates through November 26, 2012. In 
the proposed rule, which was based on data available through August 22, 
2012, the 2013 adjusted annual quota for the non-blacknose small 
coastal shark was 332.4 mt dw (732,808 lb dw). Based on updated 
landings data through November 26, 2012, the non-blacknose small 
coastal shark fishery was underharvested by 107.6 mt dw. Therefore, the 
2013 adjusted annual quota for non-blacknose small coastal shark is 
329.2 mt dw (725,645 lb dw) (221.6 mt dw annual base quota + 107.6 mt 
dw 2012 underharvest = 329.2 mt dw 2013 adjusted annual quota). 
Landings information beyond November 26, 2012, will not become 
available to us until January 1, 2013. This final rule used the most 
recent available information to allow us to properly analyze the 
fishery and open the fishery in January.

[[Page 75900]]

    Since overharvests of the porbeagle quota occurred between October 
31, 2011, and December 31, 2011, and during the 2012 fishing year, the 
available 2013 annual quota for porbeagle sharks at the proposed rule 
stage was thought to be 0.5 mt dw based on the August 22, 2012, shark 
landings data. Since the proposed rule published, updated landings data 
for 2011 indicate an additional 0.8 mt dw (1,781 lb dw) landings in 
excess of the 0.1 mt dw (227 lb dw) of porbeagle sharks that were 
accounted for as overharvested in the proposed rule. Additionally, as 
of November 26, 2012, a total of 1.9 mt dw was reported landed in 2012, 
which is 1.2 mt dw (2,614 lb dw) higher than the 2012 porbeagle shark 
quota. In total, the combined overharvest from 2011 and 2012 is 2.1 mt 
dw (4,622 lb dw). As such, the 2013 adjusted annual commercial 
porbeagle quota was exceeded by 0.4 mt dw (874 lb dw) (1.7 mt dw annual 
base quota - 0.1 mt dw 2011 additional overharvest - 0.8 mt dw 2011 
updated landings - 1.2 mt dw 2012 overharvest = -0.4 mt dw 2013 
adjusted annual quota). Thus, we will not allow commercial porbeagle 
shark landings in 2013, and are planning to reduce the 2014 fishing 
quota to account for the rest of the overharvest. Details of the 
resulting changes to the quota can be found in Table 1 and below.
    2. We changed the reason for not opening the porbeagle shark quota 
in 2013. As noted above, in the proposed rule, we stated we would not 
allow porbeagle shark landings due to the small quota and difficulties 
in accurately monitoring such a small quota. However, as we state 
above, since the combined overharvest from 2011 and 2012 is 2.1 mt dw 
(4,622 lb dw), we are deducting the overharvested amount from the 2013 
fishing quota, will not allow porbeagle shark landings in 2013, and 
will reduce the 2014 annual quota to account for this overharvest.

2013 Annual Quotas

    This final rule adjusts the commercial quotas due to over- and/or 
underharvests in 2011 and 2012 using information up to November 26, 
2012. The 2013 annual quotas by species and species group are 
summarized in Table 1. All dealer reports that are received by us after 
November 26, 2012, will be used to adjust the 2014 quotas, if 
necessary. A description of the quota calculations is provided in the 
proposed rule and is not repeated here. Any changes are described above 
in the ``Changes from the Proposed Rule'' section.
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

Fishing Season Notification for the 2013 Atlantic Commercial Shark 
Fishing Season

    Based on the seven ``Opening Fishing Season'' criteria listed in 50 
CFR 635.27(b)(1)(ii), 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) fisheries in the northwestern Atlantic Ocean, 
including the Gulf of Mexico and the Caribbean Sea, will open on 
January 1, 2013. The porbeagle shark quota will not open in 2013 due to 
overharvesting in 2011 and 2012.
    Except for porbeagle sharks, all of the shark fisheries will remain 
open until December 31, 2013, unless we determine that the fishing 
season landings for sandbar shark, non-sandbar large coastal sharks, 
blacknose, 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.  635.27(b)(1), we 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 we announce that additional quota, if any, is available, 
the fishery for the shark species group and for the appropriate non-
sandbar large coastal shark region will remain closed, even across 
fishing years, consistent with Sec.  635.28(b)(2). As a reminder, the 
blacknose and non-blacknose small coastal shark fisheries will close 
together when landings reach 80 percent of either quota.

Classification

    The NMFS Assistant Administrator has determined that the final rule 
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 for the quotas and opening dates for the pelagic 
shark, shark research, blacknose shark, non-blacknose small coastal 
shark, and non-sandbar large coastal shark fisheries in the Atlantic 
and Gulf of Mexico regions, because such a delay is contrary to the 
public interest. The porbeagle shark quota is not subject to this 
waiver, because this quota will not open in 2013.
    This final rule could not be completed sooner due to late-arriving 
information that was essential to formulating the action and informing 
the Agency decision-making process. A delay in effectiveness of this 
rule would cause negative economic impacts on fishermen and diminish 
the opportunity for the collection of scientific data, which is 
critical to properly managing the fisheries because needed information 
would not be available for stock assessments, resulting in negative 
ecological impacts on the fishery resource itself.
    The final shark specifications are established based on dealer 
landings data that were received as of November 26, 2012. Dealers 
currently submit bi-weekly landings reports to the Southeast Fisheries 
Science Center, and late reporting is a common problem that we have 
taken affirmative steps to address with the implementation of 
electronic dealer reporting. Any landings received by a dealer between 
November 15 and 30, 2012, must be reported by December 10, 2012. 
However, management likely will not have access to that landings 
information until January 1, 2013, under the existing system (i.e., 
before implementation of the HMS electronic real-time dealer reporting 
system). 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 2013 quotas, making a later 
publication date for this action impracticable.
    We have used the most recent available information to allow us to 
properly analyze the fishery and open the fishery in January. Any 
necessary adjustments to the landings report between November 27 and 
December 31 will be used in 2014. A delay in the effectiveness of the 
quotas in this rule will close the pelagic shark fishery from January 
1, 2013, until a date 30 days after the publication date of this rule. 
Most pelagic shark species are captured incidentally in swordfish and 
tuna pelagic longline fisheries that will be open in early January. If 
the quotas in this rule are not made effective as close to January 1, 
2013, as possible, fishermen will have 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 are 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, we select a small number of 
fishermen to participate in the shark research fishery each year for 
the purpose of providing us 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 us from maintaining the 
monthly time-series of wintertime abundance for shark species or 
collecting vital biological and regional data during this time of year. 
Not conducting the necessary research trips could prevent us from 
having information necessary for stock assessments, thereby limiting 
our ability to properly manage the shark fisheries to the benefit of 
the fishermen and the shark species, and contrary to the public 
interest.
    Regarding the blacknose shark and non-blacknose small coastal shark 
fisheries, these fisheries have both a directed component, where 
fishermen target small coastal sharks, 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 small coastal shark throughout 
the year. Delaying this action for 30-days would force all fishermen to 
discard, dead or alive, any small coastal shark that are caught before 
this rule becomes effective. Opening the fishery as close to January 1, 
2013, as possible ensures that any mortality associated with landings 
is counted against the commercial quota in real-time. Additionally, a 
month-long delay in opening the small coastal shark fishery would occur 
during the time period when fishermen typically target small coastal 
shark species. Therefore, fishermen would experience negative economic 
impacts that would continue until the small coastal shark fisheries 
were opened. Thus, delaying the opening of the small coastal shark 
fisheries would undermine the intent of the rule and is contrary to the 
public interest.
    Regarding the non-sandbar large coastal shark fishery in the 
Atlantic and Gulf of Mexico region, we received comments from fishermen 
and dealers recommending an opening date in January or early February. 
This change

[[Page 75904]]

would allow south Atlantic fishermen to have a winter fishery, and to 
potentially get a better price per pound. However, delaying the opening 
of the non-sandbar large coastal shark fishery in the Atlantic and Gulf 
of Mexico region for an additional 30 days would have negative economic 
impacts on fishermen because they would not be able to fish for that 
period. Additionally, many of the primary species targeted in the non-
sandbar large coastal shark fisheries are locally available in the 
southern portion of the Atlantic region in January and a 30-day delay 
would cause fishermen to miss out entirely on fishing opportunities, 
and the associated revenue. Therefore, delaying this action for 30 days 
is contrary to the public 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 non-sandbar large coastal shark fisheries in the 
Atlantic and Gulf of Mexico regions.
    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-blacknose 
small coastal shark 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 2013 annual quotas for non-sandbar 
large coastal sharks, sandbar sharks, non- blacknose small coastal 
sharks, 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.
    In this rulemaking, we 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 could also be positive effects for other fishermen 
in the region. The opening dates were chosen to allow for an equitable 
distribution of the available quotas among all fishermen across regions 
and states, to the extent practicable.
    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' 
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 2013 Atlantic Commercial Shark Season Specifications. We did 
not receive any comments specific to the IRFA. However, we received 
comments related to the overall economic impacts of the proposed rule 
(see Comments 1, 2, 3, 4, and 6 above). As described in the response to 
those comments relating to the season opening dates and consistent with 
Sec.  635.27(b)(1)(ii), the opening date for the non-sandbar large 
coastal shark in the Atlantic and Gulf of Mexico regions will be 
implemented as proposed.
    Section 604(a)(3) requires NMFS 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 less than $4.0 million for fish-harvesting, average 
annual receipts less than $6.5 million for charter/party boats, 100 or 
fewer employees for wholesale dealers, or 500 or fewer employees for 
seafood processors. These are the Small Business Administration (SBA) 
size standards for defining a ``small'' versus ``large'' business 
entity in this industry.
    The commercial shark fisheries are comprised of fishermen who hold 
shark directed or incidental limited access permits 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. As of October 2012, there were a total of 
approximately 215 directed commercial shark permit holders, 271 
incidental commercial shark permit holders, and 92 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 Amendments 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, we 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 as adjustments, as 
specified in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS 
FMP and the EA for the 2011 quota specifications rule. Thus, in this 
rulemaking, we 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, as specified and 
allowable in existing regulations. The management measures implemented 
in this rule are within a range previously analyzed in the EA with the 
2011 quota specifications rule. Thus, we have limited flexibility to 
exercise in carrying out the measures and quotas in this rule.
    Based on the 2011 ex-vessel price ($0.53/large coastal shark lb, 
$0.75/small coastal shark lb, $1.35/pelagic lb, and $11.90/lb for shark 
fins), the 2013 Atlantic shark commercial baseline quotas could result 
in revenues of $5,956,783. The adjustment due to the overharvests in 
2011 and 2012 would result in a $7,290 loss to the fleet in revenues in 
the porbeagle shark quota. Additional total fleet revenue losses of 
$1,700 would occur in 2014. The adjustment due to the underharvests in 
2012 would result in a $318,908 gain in revenues in the non-blacknose 
small coastal shark fishery. These revenues

[[Page 75905]]

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 for the 2011 quota specifications rule 
assumed we would be preparing annual rulemakings and considered the 
FRFAs in the economic and other analyses at the time.
    For this final rule, we reviewed the criteria at Sec.  
635.27(b)(1)(ii)(A) through (b)(1)(ii)(E), as in the proposed rule, to 
determine when opening each fishery will provide equitable 
opportunities for fishermen while also considering the ecological needs 
of the different species. Over- and/or underharvests of 2011 and 2012 
quotas were examined for the different species/complexes to determine 
the effects of the 2013 final 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 public comments to and potential management measures 
in Amendment 5 to the 2006 Consolidated HMS FMP before arriving at the 
final opening dates for the 2013 Atlantic shark fisheries. For the 2013 
fishing season, we are opening the fisheries for non-sandbar large 
coastal sharks 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) on January 1, 
2013. The direct and indirect economic impacts will be neutral on a 
short- and long-term basis, because we do not change the opening dates 
of these fisheries from the status quo.
    We will not be allowing landings of porbeagle shark in 2013. Not 
allowing porbeagle shark landings could result in short-term direct, 
minor, adverse economic impacts, as fishermen would have to fish in 
other fisheries to make up for lost porbeagle shark revenues during the 
2013 fishing season. The combined overharvest (2.1 mt dw; 4,622 lb dw) 
from 2011 and 2012 exceeded the 2013 annual commercial porbeagle quota 
by 0.4 mt dw (874 lb dw). We will adjust the 2014 annual quota by 0.4 
mt dw to account for this overharvest.
    The long-term direct and indirect impacts could continue if the 
porbeagle shark quota is overharvested in future years.

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

    Dated: December 19, 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. 2012-30961 Filed 12-21-12; 8:45 am]
BILLING CODE 3510-22-P