06-3145. Atlantic Highly Migratory Species; Atlantic Commercial Shark Management Measures

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule; fishing season notification.

SUMMARY:

This rule establishes the 2006 second and third trimester season quotas for large coastal sharks (LCS) and small coastal sharks (SCS) based on over- or underharvests from the 2005 second and third trimester seasons. In addition, this rule establishes the opening and closing dates for the LCS and SCS fisheries based on adjustments to the trimester quotas. This action could affect all commercial fishermen in the Atlantic commercial shark fishery. This action is necessary to ensure that the landings quotas in the Atlantic commercial shark fishery represent the latest landings data.

DATES:

This rule is effective May 1, 2006. The Atlantic commercial shark fishing season opening and closing dates and quotas for the 2006 second and third trimester seasons by region are provided in Table 1 under SUPPLEMENTARY INFORMATION.

ADDRESSES:

For copies of this rule, write to Highly Migratory Species Management Division,1315 East-West Highway, Silver Spring, MD 20910. Copies are available on the internet at http://www.nmfs.noaa.gov/​sfa/​hms.

FOR FURTHER INFORMATION CONTACT:

Chris Rilling or Karyl Brewster-Geisz by phone: [phone] or by fax: [phone].

SUPPLEMENTARY INFORMATION:

The Atlantic shark fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish, and Sharks, finalized in 1999, and Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks (Amendment 1), finalized in 2003, are implemented by regulations at 50 CFR part 635. Information regarding the rules establishing the regional quotas and the procedures for calculating the quotas was provided in the proposed rule (February 17, 2006; 71 FR 8557) and is not repeated here.

Opening and Closing Dates and Quotas

The final opening and closing dates and quotas for the 2006 second and third trimester seasons by region are provided in Table 1. As described in the proposed rule (February 17, 2006; 71 FR 8557), because opening the LCS fishery in the North Atlantic for even one week could result in an overharvest, NMFS is keeping the North Atlantic LCS fishery closed during the third trimester season.

Table 1.—Final Opening and Closing Dates and Quotas

Second Trimester Season
Species Group	Region	Opening Date	Closing Date	Quota
Large Coastal Sharks	Gulf of Mexico	July 6, 2006	July 31, 2006 11:30 p.m. local time	201.1 mt dw (443,345 lb dw)
	South Atlantic		August 16, 2006 11:30 p.m. local time	151.7 mt dw (334,438 lb dw)
	North Atlantic		August 6, 2006 11:30 p.m. local time	66.3 mt dw (146,165 lb dw)
Small Coastal Sharks	Gulf of Mexico	May 1, 2006	To be determined, as necessary	38.9 mt dw (85,759 lb dw)
	South Atlantic			333.5 mt dw (735,234 lb dw)
	North Atlantic			24.2 mt dw (53,351 lb dw)
Blue sharks	No regional quotas	May 1, 2006	To be determined, as necessary	91 mt dw (200,619 lb dw)
Porbeagle sharks				30.7 mt dw (67,681 lb dw)
Pelagic sharks other than blue or porbeagle				162.7 mt dw (358,688 lb dw)

Third Trimester Season
Species Group	Region	Opening Date	Closing Date	Quota
Large Coastal Sharks	Gulf of Mexico	September 1, 2006	November 7, 2006 11:30 p.m. local time	225.6 mt dw (497,358 lb dw)
	South Atlantic		October 3, 2006 11:30 p.m. local time	50.3 mt dw (123,899 lb dw)
	North Atlantic	CLOSED
Small Coastal Sharks	Gulf of Mexico	September 1, 2006	To be determined, as necessary	30.8 mt dw (67,902 lb dw)
	South Atlantic			263.7 mt dw (581,353 lb dw)
	North Atlantic			28.2 mt dw (62,170 lb dw)
Blue sharks	No regional quotas	September 1, 2006	To be determined, as necessary	91 mt dw (200,619 lb dw)
Porbeagle sharks				30.7 mt dw (67,681 lb dw)
Pelagic sharks other than blue or porbeagle				162.7 mt dw (358,688 lb dw)

Response to Comments

Comments on the February 17, 2006, proposed rule (71 FR 8557) received during the public comment period are summarized below, together with NMFS' responses.

Comment 1: NMFS should stop all commercial and recreational shark fishing.

Response: NMFS established a rebuilding plan for LCS in 2003 to stop overfishing and address the overfished status of the LCS complex, thus ensuring a sustainable harvest of LCS consistent with the Magnuson-Stevens Act. SCS, other than finetooth sharks, and pelagic sharks are not overfished and overfishing is not occurring. To stop all fishing would not be consistent with the Magnuson-Stevens Act. NMFS does not believe that stopping all commercial and recreational shark fishing is warranted because fishermen, processors, suppliers, and dealers could be forced out of business and a number of communities, including recreational fishing communities, would be adversely affected. The Magnuson-Stevens Act requires, among other things, that NMFS manage fisheries to achieve optimum yield and minimize, to the extent practicable, adverse economic impact on fishing communities.

Comment 2: NMFS should consider opening the LCS second trimester season on July 1 rather than July 6, particularly in the South Atlantic region where the lobster fishery opens on August 1. The July 6 start date effectively shortens the shark fishing season by one week in the South Atlantic because most shark fishermen in the region will switch to lobster fishing when that fishery opens. Commenters expressed a preference for a particular date due to a combination of potential shark availability, marketing concerns, other fishery openings and closings such as lobster and grouper, and other economic considerations.

Response: NMFS believes that a season opening date of July 6 would improve marketing opportunities because it does not conflict with the Fourth of July holiday. In previous seasons, commenters have pointed out that a July 6 season start date would prevent a glut of shark product on the market prior to the Fourth of July holiday when the market for sharks has historically been low. Although NMFS is aware of potential conflicts with other fisheries, NMFS believes that the July 6 start date for the second trimester LCS season strikes a balance between the various competing interests regarding shark availability and equitable distribution of the quota. Furthermore, postponing the start date until July 6 provides a greater opportunity for fishermen off North Carolina to fish after the mid-Atlantic shark closed area reopens on August 1. If the season were to open on July 1, the season would close on August 11, thus allowing only 11 days of fishing in the mid-Atlantic shark closed area after it reopens. If the season were to open on July 6, the season would close on August 16, allowing 16 days of fishing in the mid-Atlantic shark closed area. Thus, allowing the season to stay open until August 16 provides fishermen impacted by the time/area closure an additional five days of fishing off North Carolina. NMFS will continue to monitor the situation regarding the closed area and the Fourth of July holiday market and propose adjustments for 2nd season of 2007, as necessary.

Comment 3: NMFS should consider postponing the start of the third trimester season until October 1 because there is so little time between the end of the second trimester season and beginning of the third trimester season.

Response: NMFS agrees that, depending on the region, there may be a limited amount of time between the second and third trimester seasons. However, the Gulf of Mexico for example, has a month-long break between the second and third seasons. The South Atlantic and North Atlantic periods are two and three weeks, respectively. NMFS may consider a later start date in future years as more catch rate data for the third trimester becomes available with which to estimate appropriate season lengths. Since 2005 was the first year in which trimester seasons were implemented, NMFS used average estimates from August and September in previous years to estimate the season length during the 2005 third trimester season. Beginning in 2006, NMFS had data available from the 2005 third trimester season, which ran through October and early November for the first time, upon which to base season lengths. As data continues to be collected from the third trimester season in future years, NMFS will have a better idea of appropriate season lengths.

Comment 4: NMFS should consider extending the second trimester season closing date in the Gulf of Mexico an additional week beyond the current date of July 31, and NMFS should shorten the third trimester season by one week from the proposed date of November 15 to prevent an overharvest similar to the one that occurred in the South Atlantic last year.

Response: NMFS based the season opening and closing dates on the most recent landings data and catch rates available for the Gulf of Mexico. For example, data from the Gulf of Mexico from July and August 2002-2005 were used to estimate the 2006 second trimester season duration. Based on these data, NMFS estimated that 82 percent of the quota would likely be taken in three weeks, and 108 percent of the quota in four weeks. Following a similar approach used in previous years, and as a precautionary measure, NMFS proposed to close the season after three and a half weeks to reduce the likelihood of an overharvest. Allowing the fishery to remain open an additional week beyond July 31 could potentially result in an overharvest. For the third trimester season, since this season has been in effect for only one year (2005), NMFS has less information available upon which to make a determination of season length. Hence, NMFS agrees with the comment that a precautionary approach may be warranted, and as a result, the Gulf of Mexico third trimester season will close on November 7, 2006, rather than on November 15, 2006, as proposed. NMFS took a similar action to shorten the season in the South Atlantic for the 2005 third trimester season based on public comment.

Changes From the February 17, 2006, Proposed Rule (71 FR 8557)

In the proposed rule, NMFS proposed a third trimester season closing date of November 15 for LCS in the Gulf of Mexico. In the final rule, NMFS will shorten the duration of the third trimester season by one week in the Gulf of Mexico from November 15 to November 7, 2006. NMFS is taking this action as a precautionary measure based on public comment, and limited data availability on catch rates during that time of year, and to prevent an overharvest similar to the one that resulted in the South Atlantic during the third trimester in 2005. In addition, the LCS third trimester season quotas for Gulf of Mexico and South Atlantic were reduced by 1 mt dw and 6 mt dw, respectively due to updated landings reports that were received after publication of the proposed rule. These changes did not effect the closing dates for either region.

Classification

This rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. The Chief Counsel for Regulation at the Department of Commerce certified to the Chief Counsel for Advocacy at the Small Business Administration that this action would not have a significant economic impact on a substantial number of small entities.

The factual basis for this certification was published in the February 17, 2006, proposed rule (71 FR 8557). No comments were received regarding the certification or the economic impact of this rule, and no changes to the certification were made. As a result, no Final Regulatory Flexibility Act analysis was prepared. This final rule will not increase overall quotas, landings, or regional percentages for LCS or SCS, or implement any new management measures not previously considered, and is not expected to increase fishing effort or protected species interactions.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS has determined that these regulations would be implemented in a manner consistent to the maximum extent practicable with the enforceable policies of those coastal stateson the Atlantic including the Gulf of Mexico and Caribbean that have approved coastal zone management programs. Letters were sent on February 15, 2006, to Atlantic and Gulf of Mexico coastal states including Puerto Rico and the U.S. Virgin Islands asking for their concurrence when the proposed rule filed with the Federal Register. Mississippi, New Hampshire, North Carolina, and Rhode Island have replied affirmatively regarding the consistency determination. NMFS presumes that the remaining states that have not yet responded concur with the determination.

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

Dated: March 27, 2006.

John Oliver

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.