[Federal Register: September 17, 2004 (Volume 69, Number 180)]
[Proposed Rules]
[Page 56024-56030]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se04-32]
[[Page 56024]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 040910261-4261-01; I.D. 072704A]
RIN 0648-ASO8
Atlantic Highly Migratory Species; Atlantic Commercial Shark
Management Measures
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 adjust the regional and trimester
quotas for Large Coastal Sharks (LCS) and Small Coastal Sharks (SCS)
based on updated landings information. This proposed rule includes a
framework mechanism for the annual adjustment of quotas to account for
future overharvests and season closures, for transferring under- and
overharvests during the transition from semi-annual to trimester
seasons, and for notifying participants of season openings and
closures. In addition, this rule proposes the opening and closing dates
for the LCS fishery based on the proposed changes to the regional and
trimester quotas. This action is necessary to ensure that the landings
quotas in the Atlantic commercial shark fishery represent the latest
landings data, and accurately reflect historic and current fishing
effort.
DATES: Written comments will be accepted until 5 p.m. on October 18,
2004.
NMFS will hold three public hearings to receive comments from
fishery participants and other members of the public regarding the
proposed shark regulations. The hearing dates are:
1. Tuesday, September 28, 2004, 7-9 p.m., Manteo, NC.
2. Wednesday, September 29, 2004, 4-6 p.m., Cocoa Beach, FL.
3. Thursday, September 30, 2004, 7-9 p.m., Madeira Beach, FL.
ADDRESSES: The hearing locations are:
1. Manteo - North Carolina Aquarium, Roanoke Island, Airport Road,
Manteo, NC 27954.
2. Cocoa Beach - Cocoa Beach Public Library, 550 North Brevard
Avenue, Cocoa Beach, FL 32931.
3. Madeira Beach - City of Madeira Beach, 300 Municipal Dr.,
Madeira Beach, FL 33708.
Written comments on the proposed rule or the Draft Environmental
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (Draft EA/RIR/IRFA) may be submitted to Christopher Rogers,
Chief, Highly Migratory Species Management Division:
E-mail: 072704A@noaa.gov.
Mail: 1315 East-West Highway, Silver Spring, MD 20910.
Please mark the outside of the envelope ``Comments on Proposed Rule for
LCS and SCS Quota Adjustments.''
Fax: 301-713-1917.
Federal e-Rulemaking portal: http://www.regulations.gov.
Include in the subject line the following identifier: I.D. 072704A.
Copies of the Draft EA/RIR/FRFA or Amendment 1 to the Fishery
Management Plan for Atlantic Tunas, Swordfish, and Sharks or its
implementing regulations, may be obtained by using the above mailing
address, and are also available on the internet at http://www.nmfs.noaa.gov/sfa/hms
.
FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz, Chris Rilling,
or Mike Clark by phone: 301-713-2347 or by fax: 301-713-1917.
SUPPLEMENTARY INFORMATION: The Atlantic shark fishery is managed under
the authority of the Magnuson-Stevens Fishery Conservation and
Management Act. The Fisheries Management Plan for Atlantic Tunas,
Swordfish, and Sharks (HMS FMP) and Amendment 1 to the HMS FMP are
implemented by regulations at 50 CFR part 635.
Background
On December 24, 2003, NMFS published a final rule (68 FR 74746) for
Amendment 1 to the HMS FMP that established, among other things, the
2004 annual landings quota for LCS at 1,017 metric tons (mt) dressed
weight (dw), and the annual landings quota for SCS at 454 mt dw. The
final rule also established regional LCS and SCS quotas for the
commercial shark fishery in the Gulf of Mexico (Texas to the West coast
of Florida), South Atlantic (East coast of Florida to North Carolina
and the Caribbean), and North Atlantic (Virginia to Maine). The quota
for LCS was split among the three regions as follows: 42 percent to the
Gulf of Mexico, 54 percent to the South Atlantic, and 4 percent to the
North Atlantic. The quota for SCS was split among the three regions as
follows: 4 percent to the Gulf of Mexico, 83 percent to the South
Atlantic, and 13 percent to the North Atlantic.
Recent updates to the regional landings data and new data collected
since the December 2003 (68 FR 74746) final rule indicate that the
regional quotas need to be adjusted. This action considers alternatives
for adjusting the regional quotas.
In addition, beginning in January 2005, each regional quota will be
divided among three trimester seasons rather than two semi-annual
seasons. The first trimester season will operate between January 1 and
April 30, the second trimester season will operate between May 1 and
August 31, and the third trimester season will operate between
September 1 and December 31. This action and the associated EA consider
alternatives for dividing each region's quota among the three seasons,
as well as accounting for over- or underharvests in the transition from
semi-annual to trimester seasons.
Regional Quota Distribution
The regional quotas, along with trimester seasons, were implemented
in Amendment 1 to the HMS FMP to ensure that historical catches were
maintained, account for regional differences in fishing effort, and
provide fishery managers with the flexibility to reduce mortality of
juvenile and reproductive female sharks. For example, the quotas for
the second trimester could be reduced and the fishing season shortened
to minimize impacts during part of the primary shark pupping season.
The current regional quotas were based upon average historical
landings (1999-2001) from the General Canvass and Quota Monitoring
System (QMS) databases. Average landings were calculated in order to
minimize the uncertainty associated with inter-annual fluctuations in
regional landings as well as differences in reported landings between
the two databases.
As of July 30, 2004, the overall semi-annual quota for LCS, but not
SCS, was exceeded. Reported landings of LCS were at 107 percent of the
LCS semi-annual quota, and SCS landings were at 31 percent of the SCS
semi-annual quota for the three regions combined. The Gulf of Mexico
experienced an overharvest of 21 and 22 percent of its LCS and SCS
regional quotas, respectively, during the first semi-annual season of
2004, and the South Atlantic experienced an overharvest of 5 percent of
its LCS quota.
For this proposed rule, NMFS examined commercial LCS and SCS
landings data from 2002-2004 to determine the cause and nature of the
increased harvests in the Gulf of Mexico. Preliminary information
indicates that there was an increase in fishing effort in the Gulf of
Mexico in
[[Page 56025]]
2002 and 2003 coupled with a reduction in effort in the North Atlantic
region. Based on updated landings data, NMFS considered alternatives
that would adjust the percentages of the overall LCS and SCS quotas
among the regions to more accurately reflect current fishing effort.
The preferred alternative, A3, would establish new regional quotas
based on updated landings information and include a framework for
annual adjustment of regional quotas, as necessary. NMFS proposes to
adjust the regional quota split for LCS in the Gulf of Mexico, South
Atlantic, and North Atlantic to 49, 38, and 13 percent of the overall
LCS landings quota for each of the regions, respectively. Comparing
these revised quotas to those published in Amendment 1, this represents
an increase in the regional LCS quota for the Gulf of Mexico (+7
percent) and North Atlantic (+9 percent), and a decrease in the
regional LCS quota for the South Atlantic (-16 percent).
The regional SCS quotas for the Gulf of Mexico, South Atlantic, and
North Atlantic would be adjusted to 10, 87, and 3 percent of the
overall SCS landings quota for each of the three regions, respectively.
These quotas represent an increase in the regional quota for the Gulf
of Mexico (+6 percent) and South Atlantic (+4 percent), and a decrease
in the SCS quota for the North Atlantic (-10 percent).
In proposing new regional quotas, NMFS examined updated landings
from the General Canvass, QMS, Northeast Commercial Fisheries Database
System (CFDBS), and the Coastal Fisheries Logbook databases. The
updated landings include two additional years of data (2002 and 2003)
that were not available during preparation of Amendment 1 to the HMS
FMP. The four databases were used to collect all relevant data
regarding shark landings. The General Canvass data are collected
directly from all seafood dealers in the Southeast and Gulf of Mexico,
the QMS data are collected from Federally-permitted shark dealers in
the Southeast and Gulf of Mexico, the CFDBS data are collected from
seafood dealers in the Northeast, and the Coastal Fisheries logbook
data are submitted by commercial fishermen with any of the following
permits: Gulf of Mexico Reef Fish, South Atlantic Snapper-Grouper, King
and Spanish Mackerel, or Shark. In addition, NMFS re-reviewed data from
1999-2001 and made some corrections in how the data were compiled.
Overall economic impacts of adjusting the regional quotas are
expected to be minimal. Economic data from LCS revenues generated in
2003 indicate that the proposed adjustments to the regional quotas
would result in an increase in gross revenues to the Gulf of Mexico (+1
percent; $18,036) and North Atlantic (+6 percent; $19,612) regions, and
a decrease in gross revenues to the South Atlantic (-6 percent;
$130,169) region. Economic data for the SCS fishery indicate that gross
revenues for the Gulf of Mexico would decrease (-57 percent; $14,885)
while the gross revenues would increase for the South Atlantic (+54
percent $27,443) and the North Atlantic (+3 percent; revenues unknown
because of lack of landings in 2003). The percentage change in gross
revenues for SCS is larger than for LCS in some of the regions,
however, the total dollar value for the SCS fishery is minimal compared
to the total gross revenues generated by the LCS fishery (approximately
$93,734 for SCS vs. approximately $4,402,136 in 2002 for LCS).
No ecological impacts are expected as a result of adjusting the
regional quotas because the overall LCS and SCS quotas are not being
changed, only the proportion of the quota being assigned to particular
regions. For example, even though the quota for LCS in the Gulf of
Mexico is being increased by approximately 7 percent, the LCS quota for
the South Atlantic is proposed to be decreased by 16 percent, based
upon updated landings data. As a result, there may be increased effort
in the Gulf of Mexico, but a corresponding decline in effort in the
South Atlantic.
The overall quota for LCS was reduced in Amendment 1 by
approximately 35 percent from the 2003 quota of 1,714 mt dw, and 14
percent from 1997-2002 quotas of 1,285 mt dw. Since the overall quota
will remain the same in this action as the one established in Amendment
1 (1,017 mt dw), the regional quotas are still well below the historic
average for any of the regions. The reduction in overall quotas, as
well as regional quotas, resulted in a decline in overall and regional
fishing effort for the shark bottom longline fishery beginning in 2004,
and will likely continue in 2005. Thus, even though NMFS proposes to
increase the regional quota for the Gulf of Mexico and North Atlantic
when compared to Amendment 1, these quotas are still much lower than in
years 1997-2003. Furthermore, these quotas are based upon effort from
previous years 1999-2003, and are believed to be a more accurate
reflection of current and historic fishing effort in all regions. NMFS
does not anticipate that changes to regional quotas will result in
activation of latent fishing effort, because even though the percentage
given to a particular region may increase, the overall LCS and SCS
quotas are not being changed.
In addition to revising the regional quotas, NMFS is also proposing
a framework mechanism for the annual adjustment of quotas among regions
to minimize unharvested quotas using the following guidelines: if a
region has an overharvest of 10 percent or greater of its regional
quota, and another region or regions has an underharvest of more than
10 percent of their respective quotas, then NMFS may transfer up to 10
percent of the quota from the region or regions with the
underharvest(s) to the region with the overharvest. Any overharvest
above that 10 percent would be counted against that region's quota for
the following year. For example, if a region had an overharvest of 15
percent, 10 percent may be transferred from another region or regions,
provided they had an underharvest greater than 10 percent each, and 5
percent would be counted against the overharvesting region's quota for
the following year. If the underharvest is less than 10 percent of the
quota for any other region or regions, NMFS would not transfer any
quota, even if another region or regions had an overharvest in excess
of 10 percent. NMFS would transfer no more than 10 percent of a
region's quota in any given year. If the overharvest is less than 10
percent, NMFS would not transfer any quota, but rather, would subtract
any overharvest from that region's quota for the same season of the
following year. Other factors NMFS would consider before making a
transfer include the likelihood of protected species interactions and
bycatch rates within a region, historic landings for the region, total
landings reported for all regions at the end of their respective
seasons, the number of storms during the open season, the size of a
region's quotas, the amount of available quota remaining, the projected
ability of the vessels fishing in the region from which the quota is
proposed to be removed to harvest the remaining quota, and the
projected ability of vessels fishing in the region receiving the quota
to harvest the additional quota. NMFS would file with the Office of the
Federal Register for publication, consistent with the Administrative
Procedure Act, any annual quota adjustments. These quota adjustments
would not take place until the first trimester season of 2006. Any
quota transferred to a region would be divided among the three
trimester seasons based upon historical landings for each season, as
described below under trimester quota alternatives.
[[Page 56026]]
NMFS considered several other alternatives for regional quota
distribution and adjustment, including: (A1) maintaining the current
regional quota distribution (status quo); (A2) establishing new quotas
based on updated landings information without an annual framework
adjustment mechanism; (A4) establishing a single quota for LCS and SCS;
(A5) maintaining regional quotas for LCS but a single quota for SCS;
and (A6) combining the quotas for the Gulf of Mexico and South Atlantic
regions. NMFS selected alternative A3 as its preferred alternative
because it would revise quotas using updated landings information and
provide managers with the ability to adjust future quotas based on a
number of factors, including, but not limited to: the current fishing
year's landings, the amount of available quota remaining, the size of a
region's quota, and the ability of vessels in all regions to harvest
their remaining quota. Alternative A3 would also provide NMFS with the
ability to update regional quotas to reflect changes in fishing effort
and landings on an annual basis.
The other options considered may have negative economic impacts on
participants if there is not flexibility to address over- or
underharvests, if any, of regional quotas. One of the alternatives
would establish a single quota for LCS and SCS and eliminate the
existing regional quotas. While a single quota system would simplify
management and monitoring of the fishery, regional quotas provide a
better means of ensuring that historical catches are maintained,
accounting for regional differences in fishing effort, and providing
flexibility to reduce mortality on juveniles and reproductive female
sharks.
Trimester Quota Alternatives
NMFS also considered alternatives for dividing regional quotas
among the trimester seasons, which are scheduled to take effect in
January 2005. Amendment 1 to the HMS FMP implemented trimester seasons
to provide flexibility to adjust the shark seasons to account for
differences in the timing of shark pupping among regions, and to
improve the market by allowing for the fishing seasons to be spread
throughout the year. In the December 2003 final rule (69 FR 74746),
implementing Amendment 1 to the HMS FMP, NMFS anticipated splitting the
quotas equally among trimester seasons. After further analysis, NMFS
had determined that this could lead to unharvested quotas (e.g., LCS
quota for the first 2004 semi-annual season in the North Atlantic) and
corresponding overharvested quotas in other seasons. Thus, NMFS
considered three alternatives for dividing trimester season quotas,
including: (B1) equal quotas for each trimester season regardless of
historical landings (i.e., 33 percent of quota/trimester season); (B2)
dividing quotas in proportion to the historical landings during each
trimester season; and (B3) dividing quotas in proportion to the
historical landings for each trimester season and reviewing landings
annually to make adjustments as necessary.
In order to adapt to the change from semi-annual to trimester
seasons beginning in 2005, NMFS is proposing that quotas be divided
among the three seasons based on updated historical landings (1999-
2003) within each region, and that trimester season quotas be reviewed
and updated as necessary (alternative B3). NMFS would make adjustments
to trimester season quotas based on a number of factors including, but
not limited to: the historic landings for each trimester season in a
particular region, total landings reported for all seasons at the end
of their respective seasons, the number of storms during each open
season, the size of each seasonal quota, the amount of available quota
remaining, and the projected ability of vessels fishing in the season
receiving additional quota to harvest the additional quota.
Landings data across all regions indicate that there are temporal
variations in catches with highest catches currently occurring in
January and July. Fewer sharks have been caught during the third
trimester season because the fishery has historically been closed
during that period. NMFS anticipates that the change from semi-annual
to trimester seasons in 2005 will result in additional landings during
the third trimester over time and that it may take time for effort and
landings to stabilize. Maintaining an even distribution of quotas
across trimester seasons (alternative B1) could result in consistent
over- and underharvests as fishing effort has not historically been
evenly distributed throughout the year due to shark migration patterns
and geographic location of fishermen. Alternative B2 would divide
quotas in proportion to historic landings during each trimester season,
but would not provide a mechanism for making necessary adjustments as
would preferred alternative B3.
Transition from Semi-Annual to Trimester Seasons
NMFS also considered alternatives to account for any over- or
underharvests during the transition from two semi-annual seasons in
2004 to three trimester seasons in 2005. The first semi-annual season
(January-June) partially overlaps with the first two trimesters
(January-April and May-August) and the second semi-annual season (July-
December) partially overlaps with the second and third trimester
seasons (May-August and September-December), respectively. The
alternatives considered would only apply to the transition year: 2005.
Any over- or underharvest in subsequent years would be applied to the
same trimester season of the following year, in the region in which it
occurred, per the current regulations at 50 CFR 635.27(b)(1)(vi).
Alternatives considered for the transition include: (C1) dividing
any over- or underharvests from the 2004 semi-annual seasons equally
among the 2005 trimester seasons; (C2) carrying over any over- or
underharvest from the first semi-annual season to the first trimester
season, and any over- or underharvest from the second semi-annual
season to the second trimester season; (C3) transferring over- or
underharvests from the first semi-annual season to the first trimester
season and dividing any over- or underharvest from the second semi-
annual season equally between the second and third trimester seasons;
and (C4) dividing over- or underharvests from the first semi-annual
season equally between the first and second trimester season and
dividing any over- or underharvest from the second semi-annual season
equally between the second and third trimester seasons.
NMFS prefers alternative C3 because it would account for over- and
underharvests in a manner that is most consistent with the historical
landings in semi-annual seasons. For example, the opening of the first
semi-annual season corresponds to the first trimester season, thus,
this alternative would keep accounting of over- and underharvests
consistent between the two years' seasons. This alternative also
accounts for the overlap between the second semi-annual season and the
second and third trimester seasons.
NMFS believes the preferred alternative would have no adverse
impact on targeted species and minimal ecological impact on protected
species because the number of interactions during the third trimester
season has historically been low. Economically, it would provide the
greatest benefit to those fishermen who will not have an opportunity to
fish for sharks during the mid-Atlantic closure from January 1 through
July 31, 2005. Any under- or
[[Page 56027]]
overharvests from the 2004 second semi-annual would be divided equally
between the second and third trimester seasons, and fishermen in the
South Atlantic region would thus have an opportunity to harvest a
potentially larger quota during the third trimester season compared to
the other alternatives.
Alternative C1 is not preferred because it does not account for the
overlap between seasons, and does not account for differences in effort
and landings among the three seasons. Alternative C2 does not account
for the third trimester season, and would keep quotas for the third
trimester season low, resulting in reduced revenues and temporal
shortages of shark products, particularly for fishermen in the South
Atlantic region who are already impacted by the mid-Atlantic closure
area. Alternative C4 may reduce the quota for the second trimester
season unnecessarily because overharvests from the first and second
semi-annual seasons would both be subtracted from the second trimester
season. This could result in additional negative economic impacts on
the South Atlantic region which is already impacted by the mid-Atlantic
closure.
Notification of the Length of Fishing Seasons and Annual Adjustments
Currently, pursuant to 50 CFR 635.27(b)(1)(iii) and (vi), NMFS
files a notification of a shark fishing season's length and annual
adjustments at least 30 days prior to the start of the season. This
requirement was originally intended to address the need to provide
shark fishermen with ample advance notice to prepare for the upcoming
season. Given Amendment 1 to the HMS FMP and recent and proposed
changes to shark management, NMFS proposes to remove the 30-day
notification provisions and, as necessary and appropriate, issue
proposed and final rules for season lengths and quotas to facilitate
more opportunity for public comment. Prior to the beginning of the
season, NMFS will file with the Office of the Federal Register for
publication the length of each season and any annual adjustments.
Proposed Available Quotas
Per Amendment 1 to the HMS FMP, the 2005 annual landings quotas for
LCS and SCS are established at 1,017 mt dw (2,242,078 lbs dw) for LCS
and 454 mt dw (1,000,888.4 lbs dw) for SCS. The 2005 quota levels for
pelagic, blue, and porbeagle sharks are established at 488 mt dw
(1,075,844.8 lbs dw), 273 mt dw (601,855.8 lbs dw), and 92 mt dw
(202,823.2 lbs dw), respectively. This rule does not change any of
these quotas.
An emergency rule that published on December 27, 2002 (67 FR 78990;
extended May 29, 2003, 68 FR 31983), implemented a new management
measure from the 1999 HMS FMP that required dead discards from 2003 be
subtracted from the commercial shark quotas in 2005. This emergency
rule expired on December 27, 2003. In November 2003, NMFS released
Amendment 1 to the HMS FMP; the final rule implementing this Amendment
was published on December 24, 2003 (68 FR 74746). Amendment 1 to the
HMS FMP also dealt with the issue of dead discards and devised a
process for subtracting them when calculating maximum sustainable yield
(MSY), in conjunction with establishing a timeframe for rebuilding
stocks of LCS by 2030, while still allowing fishing by enacting other
conservation measures including reducing quotas, time/area closures,
and gear restrictions. Dead discards are already accounted for under
the new process for determining MSY, thus if NMFS were to count the
2003 dead discards against the 2005 quota as stated in the December 27,
2002 rule (69 FR 78990), NMFS would be improperly recording dead
discards against the quota twice, once prior to formulating this year's
quota, and once after the quota had been formulated. Quotas were
already reduced under Amendment 1 and further reductions could cause
negative economic impacts with negligible effects on the rebuilding
plan. Therefore, NMFS does not believe it is appropriate to count the
2003 dead discards against the 2005 commercial fishing quotas as stated
in the 2002 emergency rule.
The first 2004 semiannual fishing season quota for LCS was set at
443.1 mt dw (December 24, 2003, 68 FR 74746 and June 9, 2004, 69 FR
33321). This equated to 244.7, 190.3, and 18.12 mt dw for the South
Atlantic, Gulf of Mexico, and North Atlantic regions, respectively. As
of July 2004, approximately 486.9 mt dw LCS had been reported landed
from all regions.
Consistent with this proposed rule, the annual LCS quota (1,017 mt
dw) would be split among the regions as follows: 49 percent to the Gulf
of Mexico, 38 percent to the South Atlantic, and 13 percent to the
North Atlantic. Any over- or underharvest in a given region for the
first 2004 season would result in an equivalent increase or decrease in
that region's quotas for the first 2005 trimester season.
Also consistent with this proposed rule, the quota for each region
would be further split among the three fishing seasons according to
historical catches during that season, and adjusted for over- or
underharvests from the 2004 first season. The percentages for the
first, second, and third trimester seasons for each region would be as
follows: 47, 44, and 9 percent to the Gulf of Mexico, respectively; 63,
28, and 9 percent to the South Atlantic, respectively; and 34, 58, and
8 percent to the North Atlantic, respectively. In 2004, preliminary
data indicate that the Gulf of Mexico had an overharvest of 39.7 mt dw,
the South Atlantic had an overharvest of 11.1 mt dw, and the North
Atlantic had an underharvest of 7.0 mt dw. Thus, the LCS quotas for the
2005 first trimester season would be as follows: the Gulf of Mexico -
194.5 mt dw (428,795 lbs dw); South Atlantic - 232.4 mt dw (512,349 lbs
dw); and North Atlantic - 52.0 mt dw (114,639 lbs dw).
In the 2004 first semiannual fishing season for SCS, the quota was
established at 280.9 mt dw (December 24, 2003, 68 FR 74746). This
equated to 233.15, 36.5, and 11.23 mt dw for the South Atlantic, North
Atlantic, and the Gulf of Mexico regions, respectively. As of July
2004, approximately 86.3 mt dw had been reported landed from all
regions. This constitutes an underharvest for the first 2004 semiannual
fishing season of 194.6 mt dw from all regions.
Consistent with this proposed rule, the annual SCS quota (454 mt
dw) would be split among the regions as follows: 10 percent to the Gulf
of Mexico, 87 percent to the South Atlantic, and 3 percent to the North
Atlantic. Any over- or underharvest in a given region for the first
2004 season would result in an equivalent increase or decrease in that
region's quotas for the first 2005 trimester season.
Also consistent with this proposed rule, the quota for each region
would be further split among the three fishing seasons according to
historical catches during that season in each of the regions. The
percentages for the first, second, and third trimester seasons for each
region would be as follows: 59, 29, and 12 percent to the Gulf of
Mexico, respectively; 20, 53, and 27 percent to the South Atlantic,
respectively; and 6, 17, and 77 percent to the North Atlantic,
respectively. In 2004, preliminary data indicate that the Gulf of
Mexico had an overharvest of 2.4 mt dw, the South Atlantic had an
underharvest of 161.0 mt dw, and the North Atlantic had an underharvest
of 36.1 mt dw. Thus, the SCS quotas for the 2005 first trimester season
are proposed as follows: the Gulf of Mexico - 24.4 mt dw (53,351 lbs
dw); South Atlantic - 240.0 mt dw (529,104
[[Page 56028]]
lbs dw); and North Atlantic - 37.0 mt dw (81,570 lbs dw).
The 2005 annual quotas for pelagic, blue, and porbeagle sharks
would be established at 488 mt dw (1,075,844.8 lbs dw), 273 mt dw
(601,855.8 lbs dw), and 92 mt dw (202,823.2 lbs dw), respectively.
These are the same quotas that were established in the HMS FMP. As of
July 2004, approximately 44 mt dw had been reported landed in the first
2004 semiannual fishing season in total for pelagic, blue, and
porbeagle sharks combined. Thus, the pelagic shark quota does not need
to be reduced consistent with the current regulations 50 CFR
635.27(b)(1)(iv). Thus, the 2005 first trimester quotas for pelagic,
blue, and porbeagle sharks would be established at 162.6 mt dw
(358,688.4 lbs dw), 91 mt dw (200,618.6 lbs dw), and 30.7 mt dw
(67,681.2 lbs dw), respectively.
These proposed quotas may change depending on the final decision
regarding the regional quotas split, the trimester transition, and any
updates to the reported landings in first 2004 semi-annual season.
Proposed Fishing Season Notification
The first trimester fishing season of the 2005 fishing year for
LCS, SCS, pelagic sharks, blue sharks, and porbeagle sharks in all
regions in the northwestern Atlantic Ocean, including the Gulf of
Mexico and the Caribbean Sea, is proposed to open on January 1, 2005.
To estimate the LCS fishery closure dates, NMFS calculated the average
reported catch rates for each region from the second seasons from
recent years (2001-2004) and used these average catch rates to estimate
the amount of available quota that would likely be taken by the end of
each dealer reporting period. Because state landings after a Federal
closure are counted against the quota, NMFS also calculated the average
amount of quota reported received after the Federal closure dates of
the years used to estimate catch rates.
Pursuant to 50 CFR 635.5(b)(1), shark dealers must report any
sharks received twice a month. More specifically, sharks received
between the first and 15th of every month must be reported to NMFS by
the 25th of that same month and those received between the 16th and the
end of the month must be reported to NMFS by the 10th of the following
month. Thus, in order to simplify dealer reporting and aid in managing
the fishery, NMFS proposes to close the Federal LCS fishery on either
the 15th or the end of any given month.
Based on average LCS catch rates in recent years in the Gulf of
Mexico region, approximately 84 percent of the proposed available LCS
quota would likely be taken by the second week of March and 98 percent
of the available LCS quota would likely be taken by the end of March.
Dealer data also indicate that, on average, approximately 27 mt dw
(59,524 lb dw) of LCS have been reported received by dealers after a
Federal closure. This is approximately 14 percent of the proposed
available quota. Thus, if catch rates in 2005 are similar to the
average catch rates from 2001 to 2004, 99 percent (85 + 14 percent) of
the proposed quota could be caught by the second week of March. If the
fishery remains open until the end of March, the proposed quota would
likely be exceeded (98 + 14 percent = 112 percent). Accordingly, NMFS
is proposing to close the Gulf of Mexico LCS fishery on March 15, 2005,
at 11:30 p.m. local time.
Based on average LCS catch rates in recent years in the South
Atlantic region, approximately 97 percent of the proposed available LCS
quota would likely be taken by the second week of February and 114
percent of the proposed available LCS quota would likely be taken by
the end of February. Dealer data also indicate that, on average,
approximately 55 mt dw (121,253 lb dw) of LCS have been reported
received by dealers after a Federal closure. This is approximately 24
percent of the proposed available quota. Thus, if catch rates in 2005
are similar to the average catch rates from 2001 to 2004, 121 percent
(97 + 24 percent) of the quota could be caught by the second week of
February. If the fishery remains open until the end of February, the
quota would likely be exceeded by 138 percent (114 + 24 percent). Since
the Mid-Atlantic closed area will be in effect from January 1 through
July 31, 2005, landings will likely not be accumulating at the same
rate as they have in the past. For example, during the first 2004 shark
fishing season, North Carolina accounted for 29 percent (68 mt dw) of
landings in the South Atlantic region. Taking into account that a large
portion of North Carolina will be closed during the first trimester
season of 2005, NMFS does not believe that the quota will be exceeded
by the February 15 closure date. Thus, NMFS is proposing to close the
South Atlantic LCS fishery on February 15, 2005, at 11:30 p.m. local
time.
Based on average LCS catch rates in recent years in the North
Atlantic region, approximately 7 percent of the available proposed LCS
quota would likely be taken by the end of April. Dealer data also
indicate that, on average, approximately 10 mt dw (22,046 lb dw) of LCS
have been reported received by dealers after a Federal closure. This is
approximately 20 percent of the proposed available quota. Thus, if
catch rates in 2005 are similar to the average catch rates from 2001 to
2004, 27 percent (7 + 20 percent) of the proposed quota could be caught
by the end of April. Accordingly, NMFS is proposing to close the North
Atlantic LCS fishery on April 30, 2005, at 11:30 p.m. local time.
Request for Comments
NMFS will hold three public hearings (see DATES and ADDRESSES) to
receive comments from fishery participants and other members of the
public regarding these proposed alternatives. These hearings will be
physically accessible to people with disabilities. Requests for sign
language interpretation or other auxiliary aids should be directed to
Chris Rilling at (301) 713-2347 at least 5 days prior to the hearing
date. For individuals unable to attend a hearing, NMFS also solicits
written comments on this proposed rule (see DATES and ADDRESSES).
Classification
This proposed rule is published under the authority of the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.
As required under the Regulatory Flexibility Act, NMFS has prepared
an Initial Regulatory Flexibility Analysis (IRFA) for this rule. The
IRFA analyzes the anticipated economic impacts of these preferred
actions and any significant alternatives to the proposed rule that
could minimize economic impacts on small entities. A summary of the
IRFA is below. The full IRFA and analysis of economic and ecological
impacts, are available from NMFS (see ADDRESSES). NMFS does not believe
that the proposed regulations would conflict with current relevant
regulations, Federal or otherwise (5 U.S.C. 603(b)(5)).
This proposed rulemaking is being initiated to update the LCS and
SCS regional and trimester quotas based on updated landings information
and implement a framework for annual adjustment of quotas based on
over- or underharvests, to address the transfer of over- and
underharvests between semi-annual (2004) and trimester (2005) seasons,
and to modify the fishing season notification requirement. This rule
could directly impact commercial shark fishermen and dealers on the
Atlantic Ocean in the United States. NMFS estimates that as of April
2004, there were approximately 253 directed and 358 incidental permit
holders, of which 199 (32 percent) reported landings in 2003. As of
September 2003,
[[Page 56029]]
there were 267 commercial shark dealers. All permit holders are
considered small entities according to the Small Business
Administration's standard for defining a small entity (5 U.S.C.
603(b)(3)). Other small entities involved in HMS fisheries such as
processors, bait houses, and gear manufacturers might be indirectly
affected by the proposed regulations.
Average annual gross revenues from sharks for commercial shark
fishermen in 2003 was $31,085.60 and $1,946.18 for directed and
incidental permit holders, respectively. Average ex-vessel prices were
$0.79 and $0.53/lb dw for LCS and SCS flesh, respectively and shark
fins averaged $19.86/lb dw. Preliminary cost-earning data obtained in
2003 indicated that fishermen, on average, spend approximately
$1,765.49, $570.97, and $398.65 for fuel, bait, and ice, respectively,
per trip.
An analysis of the economic impacts of the proposed rulemaking on
active incidental and directed shark permit holders was conducted as
part of the IRFA. The preferred alternative to modify the regional
quotas based on updated landings information would increase the
existing regional quotas, and therefore potential landings, by 6
percent for the Gulf of Mexico and 4 percent for South Atlantic for
SCS, respectively and would decrease the SCS regional quota by 10
percent for the North Atlantic. Based on landings and revenue
information obtained from the appropriate 2003 logbooks, these
potential increases in landings may result in a similar increases to
gross revenue, however, NMFS is unable to predict future ex-vessel
prices for shark products. For LCS, regional quotas and potential
landings would be increased by 7 percent for the North Atlantic and 9
percent for the Gulf of Mexico, respectively while reducing the South
Atlantic quota by 16 percent.
The preferred measures outlined in this proposed rule were selected
for the commercial Atlantic LCS and SCS fisheries because they minimize
economic, ecological, and social impacts incurred on fishermen while,
consistent with the Magnuson-Stevens Act and other domestic laws,
enhancing equity among user groups, and allowing stocks to be managed
at sustainable levels. Other alternatives analyzed herein for regional
and trimester quota distribution were not preferred because they fail
to base quotas on updated landings information or fail to provide a
means of annually revising quotas to adjust for over- or underharvests,
if any, to minimize economic hardships that may result due to fishery
closures or an inability to harvest the full quota for LCS and SCS.
Other alternatives for the transfer of over- and underharvests between
semi-annual (2004) and trimester (2005) seasons were not selected
because they would reduce quotas for the third trimester season
resulting in reduced revenues and temporal shortages of shark products,
particularly for fishermen in the South Atlantic region who are already
impacted by the Mid-Atlantic closure area. The alternative to remove
the 30-day requirement to publish a fishing season's length or quotas/
annual adjustments is not expected to result in negative economic
impacts, as it provides for more public input.
One of the requirements of an IRFA is to describe any alternatives
to the proposed rule which accomplish the stated objectives and which
minimize any significant economic impacts (5 U.S.C. 603(c)).
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4))
lists four categories for alternatives that should be discussed. These
categories 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.
As noted earlier, NMFS considers all permit holders to be small
entities and in order to meet the objectives of this proposed rule and
the Magnuson-Stevens Act, NMFS cannot change the requirements only for
small entities. Additionally, all of the proposed measures in this rule
would not be effective with exemptions for small entities. Thus, there
are no alternatives available to satisfy the stipulations of the first
and fourth categories listed above. NMFS is proposing these measures to
modify regional and trimester quotas based on updated landings
information and as such, the use of performance rather than design
standards and the simplification of compliance and reporting
requirements under this proposed rule are not practicable. Alternatives
relevant to the second category are identified in the preamble and
further discussed below.
The preferred measures for updating regional and trimester quotas
were selected because the other proposed alternatives do not allow NMFS
to update the quotas based on the most up-to-date landings data
available while installing a provision for the annual adjustment of
these quotas to better adapt to future changes in regional fishing
effort. Furthermore, although they may consolidate, clarify, and/or
simplify compliance, other alternatives considered that do not maintain
regional and trimester quotas could result in regional inequality as
fishermen in the North Atlantic would be at a disadvantage due to their
geographic location and these alternatives may also have negative
impacts on shark pupping, both of which would conflict with National
Standards (NSs) of the Magnuson-Stevens Act by inhibiting or
discriminating against fishermen in a given state or region and
delaying the rebuilding plan for LCS (NS 4 and NS 1). Maintaining the
regional and trimester quotas also promote market stability by ensuring
the availability of shark products year round and in all locales.
There was little difference in economic impact between the
different alternatives considered. Other proposed alternatives for the
transition between semi-annual and trimester season are not expected to
have adverse economic or ecological impacts, however, the preferred
alternative was selected because it provides equitable distribution of
quotas based on historic fishing practices. NMFS does not know of any
performance or design standards that would satisfy the aforementioned
objectives of this rulemaking while, concurrently, upholding the
Magnuson-Stevens Act. This proposed rule does not contain any new
reporting or recordkeeping requirements. This proposed rule would not
increase the administrative burden or professional skills required of
permit holders to maintain compliance with commercial shark
regulations.
The biological opinion prepared in October 2003, entitled
``Biological Opinion on the continued operation of Atlantic shark
fisheries under the Fishery Management Plan for Atlantic Tunas,
Swordfish, and Sharks (HMS FMP)'', in response to the proposed measures
in Amendment 1 to the HMS FMP, found that the continued existence of
commercial shark fishery would not jeopardize marine mammals, sea
turtles, or smalltooth sawfish. Regional quota administration and
trimester seasons were actions finalized in Amendment 1 to the HMS FMP
and therefore, were included in the aforementioned BiOp. This proposed
rule will not increase overall quotas or landings for LCS or SCS,
therefore interactions with, or incidental takes of, protected species
should not increase. The preferred alternatives simply re-distribute
quotas based on updated landings information, distribute them
[[Page 56030]]
across trimester seasons based on historical landings, and transfer
over- or under harvests from semi-annual to trimester seasons.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS has determined preliminarily that these regulations would be
implemented in a manner consistent to the maximum extent practicable
with the enforceable policies of those coastal states on the Atlantic
including the Gulf of Mexico and Caribbean that have approved coastal
zone management programs. Letters have been sent to the relevant states
asking for their concurrence.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Treaties.
Dated: September 13, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 635 is
proposed to be amended as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
1. The authority citation for 50 CFR part 635 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
2. In Sec. 635.27, paragraphs (b)(1)(i), (b)(1)(iii), (b)(1)(iv),
and (b)(1)(vi)(A) and (B) are revised to read as follows:
Sec. 635.27 Quotas.
* * * * *
(b) * * *
(1) * * *
(i) Fishing seasons. The commercial quotas for large coastal
sharks, small coastal sharks, and pelagic sharks will be split among
three fishing seasons: January 1 through April 30, May 1 through August
31, and September 1 through December 31.
(ii) * * *
(iii) Large coastal sharks. The annual commercial quota for large
coastal sharks is 1,017 mt dw, unless adjusted pursuant to paragraph
(b)(1)(vi) of this section. This annual quota is split among the
regions as follows: 49 percent to the Gulf of Mexico, 38 percent to the
South Atlantic, and 13 percent to the North Atlantic. The length of
each fishing season will be determined based on the projected catch
rates, available quota, and other relevant factors. Prior to the
beginning of the season, NMFS will file with the Office of the Federal
Register for publication, consistent with the Administrative Procedure
Act, the length of each season.
(iv) Small coastal sharks. The annual commercial quota for small
coastal sharks is 454 mt dw, unless adjusted pursuant to paragraph
(b)(1)(vi) of this section. This annual quota is split among the
regions as follows: 10 percent to the Gulf of Mexico, 87 percent to the
South Atlantic, and 3 percent to the North Atlantic.
(v) * * *
(vi) Annual adjustments. (A) NMFS will adjust the next year's
fishing season quotas for large coastal, small coastal, and pelagic
sharks to reflect actual landings during any fishing season in any
particular region. For example, a commercial quota underharvest or
overharvest in the fishing season in one region that begins January 1
will result in an equivalent increase or decrease in the following
year's quota for that region for the fishing season that begins January
1.
(1) NMFS will adjust a region's quota based on the following
criteria: if a region has an overharvest of 10 percent or greater of
its regional quota, and any other region or regions has an underharvest
of more than 10 percent of their respective quotas, then NMFS may
transfer up to 10 percent of the quota from the region or regions with
the underharvest to the region with the overharvest. Any overharvest
above that 10 percent would be counted against that region's quota for
the same season of the following year. If the underharvest is less than
10 percent of the quota for any other region or regions, NMFS would not
transfer any quota, even if another region or regions had an
overharvest in excess of 10 percent.
(2) Other factors NMFS would consider before making a transfer
include, but are not limited to, the likelihood of protected species
interactions and bycatch rates within a region, historic landings for
the region, total landings reported for all regions at the end of their
respective seasons, the number of storms during the open season, the
size of a region's quotas, the amount of available quota remaining, the
projected ability of the vessels fishing in the region from which the
quota is proposed to be removed to harvest the remaining quota, and the
projected ability of vessels fishing in the region receiving the quota
to harvest the additional quota.
(3) Quotas for each region would be further divided among the
trimester seasons based upon historic landings in each of the seasons.
NMFS would make adjustments to trimester season quotas based on a
number of factors including, but not limited to: the historic landings
for each trimester season in a particular region, total landings
reported for all seasons at the end of their respective seasons, the
number of storms during each open season, the size of each seasonal
quota, the amount of available quota remaining, and the projected
ability of vessels fishing in the season receiving additional quota to
harvest the additional quota. Prior to the beginning of the season,
NMFS will file with the Office of the Federal Register for publication,
consistent with the Administrative Procedure Act, any annual
adjustment.
(B) NMFS will reduce the annual commercial quota for pelagic sharks
by the amount that the blue shark quota is exceeded prior to the start
of the next fishing season.
(C) * * *
* * * * *
[FR Doc. 04-21002 Filed 9-14-04; 2:52 pm]
BILLING CODE 3510-22-S