Atlantic Highly Migratory Species; 2011 Commercial Fishing Season and Adaptive Management Measures for the Atlantic Shark Fishery, 76302-76314 [2010-30688]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76302-76314]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30688]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 100622276-0569-02]
RIN 0648-AY98


Atlantic Highly Migratory Species; 2011 Commercial Fishing Season 
and Adaptive Management Measures for the Atlantic Shark Fishery

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final rule; fishing season notification.

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SUMMARY: This final rule establishes opening dates and adjusts quotas 
for the 2011 fishing season for sandbar sharks, non-sandbar large 
coastal sharks (LCS), blacknose shark, non-blacknose small coastal 
shark (SCS), blue sharks, porbeagle sharks, and pelagic sharks (other 
than porbeagle or blue sharks) based on any over- and/or underharvests 
experienced during the 2009 and 2010 Atlantic commercial shark fishing 
seasons. NMFS is taking this action to establish the 2011 adjusted 
fishing quotas and to open the commercial fishing seasons for the 
Atlantic sandbar shark, non-sandbar LCS, blacknose shark, non-blacknose 
SCS, and pelagic shark fisheries based on over- and underharvests from 
the 2009 and 2010 fishing season. This action is expected to affect 
commercial shark fishermen in the Atlantic and Gulf of Mexico regions. 
In addition to establishing opening dates and adjusting annual quotas, 
this final rule implements adaptive management measures, including 
flexible opening dates for the fishing season, as well as inseason 
adjustments to shark trip limits, to provide flexibility in management 
in the furtherance of equitable fishing opportunities, to the extent 
practicable, for commercial shark fishermen in all regions and areas. 
These actions are expected to affect

[[Page 76303]]

commercial shark fishermen in the Atlantic and Gulf of Mexico regions.

DATES: This final rule is effective January 7, 2011. The 2011 Atlantic 
commercial shark fishing season for the shark research, non-blacknose 
SCS, blacknose sharks, blue sharks, porbeagle sharks, and pelagic 
sharks (other than porbeagle and blue sharks) in the northwestern 
Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, 
will open on January 1, 2011. The non-sandbar LCS in the Gulf of Mexico 
region will open on March 1, 2011. The non-sandbar LCS fishery in the 
Atlantic region will open on July 15, 2011. Each shark species/complex 
closes on December 31, 2011, or when landings reach, or are projected 
to reach, 80 percent of the respective quota, whichever occurs first. 
The one exception is blacknose sharks and non-blacknose SCS fisheries, 
where both fisheries close when landings of either fishery reach 80 
percent of the quota. The 2011 Atlantic commercial shark fishing season 
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: Karyl Brewster-Geisz or Guy DuBeck at 
301-713-2347 or (fax) 301-713-1917, or Jackie Wilson at 240-338-3936 or 
(fax) 404-806-9188.

SUPPLEMENTARY INFORMATION: 

Background

    The Atlantic shark fishery is managed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The 2006 Consolidated Atlantic 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 September 20, 2010, NMFS published a rule (75 FR 57240) that 
proposed the 2011 opening dates of the Atlantic commercial shark 
fisheries and quotas based on shark landings information as of July 31, 
2010. The proposed rule also considered two main alternatives regarding 
management of the shark fishery. One approach would maintain the status 
quo approach to establishing trip limits (33 non-sandbar LCS/trip), as 
well as consider alternatives to allow changes in shark trip limits in 
order to extend fishing opportunities year-round (alternative 1 and its 
sub-alternatives). The other approach (alternative 2 and its sub-
alternatives) would allow flexibility in the opening of the season for 
Atlantic shark fisheries through the annual specifications process and 
allow inseason actions to adjust shark trip limits in either region to 
provide expanded fishing opportunities for constituents across the 
fishery, as is the intent of Amendment 2 to the 2006 Consolidated HMS 
FMP (Amendment 2) (73 FR 35778, June 24, 2008, corrected at 73 FR 
40658, July 15, 2008). The proposed rule contained details regarding 
the alternatives considered and a brief summary of the recent 
management history. Those details are not repeated here. Several 
comments from the public were received on the proposed rule. Those 
comments, along with the Agency's responses, are provided below. As 
detailed more fully in the Response to Comments section, NMFS will open 
the non-sandbar LCS fishery in the Gulf of Mexico region on March 1, 
2011. The other shark species/complexes will open as proposed in the 
September 20, 2010, rule with non-sandbar LCS in the Atlantic region 
opening on July 15, 2011, and all other shark species/complexes opening 
on January 1, 2011. This final rule serves as notification of the 2011 
opening dates of the Atlantic commercial shark fisheries and 2011 
quotas, based on shark landings updates as of October 31, 2010, 
pursuant to 50 CFR 635.27(b)(1)(vii). This action does not change the 
annual base and adjusted annual base commercial quotas for sandbar 
sharks, non-sandbar LCS, blue sharks, porbeagle sharks, and pelagic 
sharks (other than porbeagle and blue sharks) as established under 
Amendment 2 or the commercial quotas established for non-blacknose SCS 
and blacknose sharks under Amendment 3 to the 2006 Consolidated HMS FMP 
(Amendment 3) (75 FR 30484, June 1, 2010). Any such changes would be 
performed through a separate action. Rather, this action adjusts the 
commercial quotas based on over- and/or underharvests in 2009 and 2010.

Response to Comments

    During the proposed rule stage, NMFS received more than a dozen 
written comments from fishermen, dealers, and other interested parties. 
NMFS also heard numerous comments from the fishermen and dealers who 
attended the four public hearings. A summary of the comments received 
during the public comment period for the September 20, 2010, proposed 
rule (75 FR 57240) is shown below with NMFS' responses. All written 
comments can be found at https://www.regulations.gov/ and by searching 
for RIN 0648-AY98.

A. Season Opening Dates

1. Non-Sandbar LCS Comments
    Comment 1: The flexibility measures under sub-alternatives 2A and 
2B, which allow flexibility in the opening of the season for Atlantic 
shark fisheries and adjusting of shark trip limits, look good in 
theory, but the fishery needs certainties to make good business and 
personal decisions.
    Response: Under the preferred sub-alternatives 2A and 2B, NMFS 
would still conduct annual proposed and final rulemaking to establish 
the quotas and season opening dates. As part of this rulemaking, 
interested parties could provide comments and have notice of the season 
opening dates, as is currently the process. In addition, NMFS would 
provide five days' notice of changes in shark trip limits, as is 
currently done with the closing of a particular shark fishery when 80 
percent of a given quota is harvested. Such a process would provide the 
same amount of notice to fishermen and associated shark industries of 
changes in the fishery as is currently provided. NMFS believes that 
five days' notice of changes provides enough time for business 
decisions while also providing NMFS with the ability and flexibility to 
manage the fishery, as appropriate.
    Comment 2: NMFS does not need to extend the shark fishing season 
year-round since fishermen can catch other fish species the rest of the 
year. The economics should be considered in this rule since it is more 
economically beneficial to have a short season.
    Response: NMFS acknowledges that shorter seasons may result in some 
reduced trip-related expenses. A shorter season may result in less fuel 
expenditures for travel, lower costs associated with changing over gear 
types, and reduced crew turnover. A shorter season may reduce the at-
sea time associated with harvesting the shark quota, and, therefore, 
provide fishermen with more time to pursue other fisheries. However, 
there are both social and private costs potentially associated with 
shorter seasons. Shorter fishing seasons often result in derby-style 
fishing conditions, which can result in fishing under unsafe 
conditions, such as poor weather and long hours. Derby fishing can also 
result in a market glut of fish during the early part of a fishing 
season when there is heavy fishing if there is insufficient demand for 
the product during that short period. Furthermore, when fishing in 
other fisheries, such as snapper/grouper or mackerel fisheries, 
fishermen are likely to encounter sharks. If the season for sharks is 
closed, those sharks

[[Page 76304]]

caught as bycatch need to be discarded, resulting in fishing 
inefficiencies and increased mortality of sharks. Therefore, NMFS 
prefers sub-alternatives 2A and 2B, which will provide the Agency with 
the necessary flexibility to extend the fishing season either by 
delaying the opening of a shark fishery and/or adjusting shark trip 
limits through inseason actions to help reduce bycatch and mortality of 
sharks.
    In addition, NMFS could not identify patterns in ex-vessel shark 
prices based on season length, but rather, found slighter higher prices 
for 2010 overall compared to 2008 and 2009. NMFS compared ex-vessel 
prices for non-sandbar LCS for 2008 when the fishing season was opened 
for almost six months compared to 2009 and 2010 where the non-sandbar 
LCS fishery was opened between 6 weeks to 22 weeks. Ex-vessel prices 
for non-sandbar LCS in 2008 and 2009 were $0.45 per pound each year. 
However, these prices were slightly higher for 2010 at $0.60 per pound. 
In addition, the sandbar shark research fishery, which has been opened 
for longer periods of time in 2008-2010, had similar prices in 2008 and 
2009 ($0.35 and $0.40 per pound, respectively) but had higher prices in 
2010 at $0.70 per pound.
Atlantic Region
    Comment 3: NMFS should open the non-sandbar LCS fishery in the 
Atlantic region in January with a trip limit of 33 sharks/trip, lower 
the trip limit to 0 sharks/trip when 40 percent of the quota is 
achieved, and then raise the trip limit back to 33 sharks/trip in July. 
This approach would ensure available quota for fishermen along the 
Atlantic coast. However, if NMFS re-creates a bi-annual season by 
lowering and raising the trip limit, NMFS needs to ensure accurate and 
timely reporting by dealers in order to ensure that all fishermen along 
the coast have equal opportunities to fish the quota. Electronic 
reporting needs to be implemented to stop delayed dealer reporting of 
shark landings.
    Response: NMFS considered such a scenario of creating a bi-annual 
fishing season for non-sandbar LCS by lowering and raising non-sandbar 
LCS trip limits to allow for a fishery at the beginning of the year yet 
reserving quota for a fishery later in the year when sharks migrate to 
more northern Atlantic waters. However, because of delays in dealer 
reporting due to the current biweekly reporting regime for shark 
dealers, and due to delays in the receipt of State landings data, NMFS 
is concerned that sufficient amounts of the quota may not be available 
for a fishery later in the season under the scenario described in 
Comment 3. Currently, dealers are required to have landings reports 
from the first through the 15th of each month received by NMFS no later 
than the 25th of the month. Landings reports from the 16th through the 
end of the month must be received by NMFS no later than the 10th of the 
following month. Therefore, dealer reports are delayed by two weeks, 
making landings data at least 10 days old by the time the Agency 
receives HMS dealer reports. If the quota is being harvested at a fast 
rate, then the Agency may not be able to reduce trip limits fast enough 
to ensure an adequate fishery later in the season. NMFS is currently 
working on an electronic dealer reporting rulemaking, which will 
require more timely dealer reporting and support real-time quota 
monitoring. Once this system is in place, NMFS could consider managing 
the shark season as described under Comment 3.
    Comment 4: Some fishermen for the Florida area and related 
industries do not support the proposed July 15 opening for the non-
sandbar LCS fishery in the Atlantic region. The delay in 2010 did not 
provide an equal opportunity for Florida fishermen to harvest the quota 
because sharks are not available in Florida waters in July and prices 
for sharks are higher in the winter than the summer. Because there are 
more shark fishermen in Florida than in other regions, NMFS should not 
give preference to fishermen who fish further north. However, other 
fishermen from North Carolina and north support the proposed July 15 
opening because it offers mid- and north Atlantic fishermen an 
opportunity to harvest the quota.
    Response: In 2008, 257,286 pounds (lb) dressed weight (dw) of non-
sandbar sharks were reported from July through December on HMS dealer 
reports by Federally permitted dealers from the east coast of Florida. 
During the same time period, 10,390 lb dw of non-sandbar LCS were 
reported by dealers from North Carolina. In 2009, when the fishery was 
opened during January through July, 317,050 lb dw of non-sandbar LCS 
were reported by Federal dealers from the east coast of Florida whereas 
4,534 lb dw of non-sandbar LCS were reported from dealers from North 
Carolina. Thus, 2008 dealer reports indicate that non-sandbar LCS are 
present in waters off the east coast of Florida during the July to 
December timeframe. In addition, fishermen from North Carolina landed 
less than half the amount of non-sandbar LCS from January through July 
in 2009 compared to 2008 when the fishery was open later in the year, 
and sharks migrated to more northern Atlantic waters. Preliminary data 
for 2010 from July through September indicate a similar pattern to that 
in 2008. Consistent with National Standard 4, NMFS must not 
discriminate between residents of different States. NMFS must consider 
fishing opportunities that are fair and equitable to all fishermen. 
Opening the non-sandbar LCS fishery later in the year (i.e., July 15) 
would allow the furtherance of equitable fishing opportunities to all 
fishermen in the Atlantic region; fishermen in the south Atlantic and 
north Atlantic would all have the ability to harvest a portion of the 
non-sandbar LCS quota in the Atlantic region with such an opening date.
    Finally, NMFS compared monthly ex-vessel prices based on data 
provided on HMS dealer reports for non-sandbar LCS from 2008 through 
2010 for dealers reporting from the east coast of Florida. Median ex-
vessel prices per pound ranged from $0.45-$0.75 in July through 
September in 2008 and 2010 (the non-sandbar LCS fishery was not open 
during this time period in 2009). From January through March, median 
ex-vessel prices per pound ranged from $0.45 to $0.50 and were similar, 
if not slightly lower, than summer ex-vessel prices for non-sandbar 
LCS. Thus, NMFS did not find higher ex-vessel prices for non-sandbar 
LCS during the winter months, suggesting that a summer/fall fishery for 
non-sandbar LCS off the east coast of Florida could generate as much 
revenue as a winter/spring fishery.
    Comment 5: North Carolina and Florida traditional shark fisheries 
are composed of different species. North Carolina was mainly a sandbar 
shark fishery while Florida was mainly a blacktip shark fishery. NMFS 
should manage the fishery based on the traditional fisheries and not 
take away the winter non-sandbar LCS fishery from Florida fishermen.
    Response: While average landing reports from 2003 to 2007 indicate 
that more blacktip sharks were reported, on average, from the east 
coast of Florida compared to North Carolina (263,405 lb dw versus 
14,878 lb dw of blacktip sharks), dealers from the east coast of 
Florida reported higher average landings of sandbar sharks compared to 
dealers in North Carolina (309,640 lb dw versus 232,132 lb dw of 
sandbar sharks). Thus, the east coast of Florida had a substantial 
traditional sandbar shark fishery before the implementation of 
Amendment 2 to the Consolidated HMS FMP. In addition, blacktip sharks, 
which are currently allowed to be retained in the commercial fishery, 
unlike sandbar sharks, are not as prevalent in the beginning of the 
year

[[Page 76305]]

off North Carolina based on HMS dealer reports (142 lb dw of blacktip 
sharks from January through March). This information indicates a 
fishery for this species later in the year is appropriate to allow for 
a more equitable opportunity for all fishermen in the Atlantic region 
to harvest a portion of the non-sandbar LCS quota, consistent with 
National Standard 4.
    Comment 6: Making Florida fishermen fish for sharks in the summer 
presents a safety-at-sea issue as it is dangerous in the Florida summer 
heat to have to process the sharks twice by removing fins once the 
sharks are offloaded and having to lift heavy sharks that cannot be cut 
in half.
    Response: NMFS disagrees that opening the non-sandbar LCS fishery 
in July in the Atlantic region presents a safety-at-sea issue; NMFS has 
considered National Standard 10, regarding promoting the safety of 
human life at sea, to the extent practicable, when considering the 
opening dates of the shark fishing seasons. Regulations prohibiting 
shark fishermen from being able to cut, quarter, or fillet sharks while 
at sea have been in effect since 1997. In addition, landings 
information from HMS Dealer Form reports indicate shark fishermen have 
historically landed sharks in Florida during July through September, 
and the offloading of sharks with their fins naturally attached has 
been in place since the 2008 Amendment 2. Therefore, having a summer 
non-sandbar LCS fishery should not be a change in current fishing 
practices or present any new safety-at-sea concerns. Additionally, in 
both 2008 and 2010, the non-sandbar LCS summer fishery has continued 
substantially into the fall (until December 31 in 2008 and to date in 
2010). As such, opening the fishery on July 15 provides shark fishermen 
who do not want to fish in the heat of the summer, or who fish for 
other species in the summer, an opportunity to fish during the cooler 
months.
Gulf of Mexico Region
    Comment 7: Shark meat is easier to sell in the Gulf of Mexico 
around the religious holiday of Lent. Shark dealers and fishermen in 
the Gulf of Mexico supported sub-alternative 2A to allow for 
flexibility in the opening of the commercial fishing season so that the 
opening dates could be around Lent each year.
    Response: Consistent with National Standard 4, NMFS must not 
discriminate between residents of different States. NMFS must consider 
fishing opportunities that are fair and equitable to all fishermen. 
Therefore, NMFS considered a season opening date that would allow the 
furtherance of equitable fishing opportunities, to the extent 
practicable, for commercial shark fishermen in all parts of the Gulf of 
Mexico region. As such, based on comments received from fishermen and 
dealers in different areas of the Gulf of Mexico requesting NMFS to 
open the season at the beginning of the year, to open the season around 
Lent, or to open the season around the middle of March, NMFS is opening 
the non-sandbar LCS on March 1, 2011. This opening should also allow 
for shark product to be available during Lent in 2011 as Lent begins on 
March 9, 2011. This is a change from the opening date in the proposed 
rule for this action; however, as explained in the responses to Comment 
8 below, NMFS believes such an opening date would provide fishermen in 
both the eastern and western Gulf of Mexico the ability to catch a 
portion of the non-sandbar LCS shark quota during 2011.
    Comment 8: Louisiana shark fishermen and dealers are in favor of 
opening the non-sandbar LCS fishery in the Gulf of Mexico in January or 
February of 2011. This would allow a winter fishery when few other 
fisheries are open at that time. Opening the season during the cooler 
months would be beneficial since ice is not used on vessels in that 
area. NMFS should also be consistent with Louisiana State regulations 
and should not open the season during the pupping season (April through 
June of each year). Louisiana State shark fishermen supported opening 
the non-sandbar LCS fishery the same time as it was opened in 2010 
(i.e., early February) so that catch and catch rates before and after 
the oil spill can be compared to determine the impact on the oil spill 
on shark populations. There was also some support from Louisiana State 
fishermen to open the non-sandbar LCS fishery in the Gulf of Mexico 
later in the year (i.e., July) when the flow of the Mississippi river 
is lower and sharks are easier to catch.
    Response: Consistent with National Standard 4, NMFS must not 
discriminate between residents of different States. NMFS must consider 
fishing opportunities that are fair and equitable to all fishermen. 
NMFS is balancing comments received from all fishermen and dealers in 
the Gulf of Mexico region with regard to the opening of the non-sandbar 
LCS fishery in that region. Based on comments received from fishermen 
and dealers throughout the Gulf of Mexico, NMFS is opening the non-
sandbar LCS on March 1, 2011. This is a change from the opening date in 
the proposed rule for this action; however, NMFS believes such an 
opening date would provide fishermen in both the eastern and western 
Gulf of Mexico the ability to catch a portion of the non-sandbar LCS 
shark quota during 2011. This would open the fishery at the beginning 
of the year when it is cooler (i.e., before the summer months) and when 
other fisheries may be closed. In addition, based on how quickly the 
quota was harvested in 2010 in the Gulf of Mexico region, NMFS does not 
anticipate the non-sandbar LCS quota lasting until the end of the year, 
so an overlap with the shark pupping season from April-June during 2011 
should not be substantial. If any overlap does occur, since Louisiana 
State waters are closed from April to June of each year to protect 
shark pupping, overall shark fishing effort would be reduced. 
Additionally, the Federal shark permit holders that would be active 
during this time period would be fishing in offshore waters and not 
pupping areas. Thus, NMFS does not anticipate any significant impacts 
to shark populations due to fishing by Federal shark fishermen during 
this time. However, an opening date of March 1, 2011, would most likely 
not allow for a non-sandbar LCS fishery later in the season in the Gulf 
of Mexico region. NMFS could slow the fishery down by reducing the trip 
limit; however, while this action implements the criteria and authority 
for NMFS to make inseason changes to shark trip limits, no changes to 
the actual trip limits are being made at this time. Additionally, until 
NMFS has real-time reporting from shark dealers, NMFS is concerned that 
due to the delay in dealer reports, sufficient amounts of the quota may 
not be available for a fishery later in the season as explained in the 
response to Comment 3 above.
    Comment 9: Louisiana fishermen questioned the need for equitable 
opportunities to catch the quota.
    Response: As explained above, in accordance with National Standard 
4, NMFS must not discriminate between residents of different States. 
NMFS must consider fishing opportunities that are fair and equitable to 
all fishermen.
    Comment 10: Louisiana Department of Wildlife and Fisheries 
indicated that there were currently 600 State water shark permits with 
approximately half of those permits actively participating in the shark 
fishery. These fishermen derive a substantial amount of income from 
shark fishing; however, the State agency claimed that the proposed rule 
did not consider the impacts to Louisiana State fishermen, and stated 
that NMFS should consider the impacts

[[Page 76306]]

to Louisiana State fishermen when establishing shark fishing 
regulations.
    Response: NMFS disagrees that the proposed rule did not consider 
impacts to Louisiana State fishermen. In both the proposed rule and 
this final rule, NMFS analyzed alternatives to provide equitable 
fishing opportunities to the extent practicable for commercial shark 
fishermen in all regions and areas. NMFS has not been able to quantify 
potential impacts to State fishermen with regard to impacts of changing 
trip limits as it has for Federal shark fishermen due to the lack of 
Federal logbooks from State fishermen and the lack of a requirement for 
dealers to have a Federal dealer permit and report landings of State 
fishermen to NMFS. However, NMFS held a public hearing in Louisiana and 
has taken comments from Louisiana shark fishermen into consideration on 
the proposed rule and draft Environmental Assessment (EA) on the 
opening of the commercial shark fishing seasons. In this rule, NMFS 
balanced comments received from all participants in the Gulf of Mexico 
region with regard to the opening of the non-sandbar LCS fishery in 
that region. As explained in responses to Comments 7 and 8, NMFS 
believes an opening date of March 1, 2011, would provide fishermen in 
both the eastern and western Gulf of Mexico the ability to catch a 
portion of the non-sandbar LCS shark quota during 2011. This change 
also takes into consideration comments from some Louisiana fishermen 
who suggested the fishery open near the religious holiday of Lent.
    Comment 11: The quota would last longer if NMFS opens the non-
sandbar LCS season in the Gulf of Mexico region later in the year (such 
as March 1 or March 15) because, if the season opens in January, 
Louisiana vessels would primarily target sharks because there are no 
other open fisheries at that time. However, NMFS should not open the 
season too late in the year in the Gulf of Mexico region as there are 
no sharks in the Florida Keys in July, which is part of the Gulf of 
Mexico region.
    Response: NMFS is balancing comments received from all fishermen 
and dealers in the Gulf of Mexico region with regard to the opening of 
the non-sandbar LCS fishery in that region. In Comment 8, constituents 
requested that the non-sandbar LCS fishery open around Lent (i.e., 
beginning March 9, 2011) when shark product was more easily sold. 
Florida-based fishermen wanted the non-sandbar LCS fishery to open at 
the beginning to the middle of March in the Gulf of Mexico region, 
whereas Louisiana-based fishermen wanted the non-sandbar LCS fishery to 
open around January to February of 2011. Based on public comment, NMFS 
is opening the non-sandbar LCS fishery on March 1, 2011. This is a 
change from the opening date in the proposed rule for this action; 
however, NMFS believes such an opening date would provide fishermen in 
both the eastern and western Gulf of Mexico the ability to catch a 
portion of the non-sandbar LCS shark quota during 2011. In addition, 
NMFS has implemented criteria and flexibility in opening the commercial 
shark fisheries in the future (see response to Comment 7 above).
    Comment 12: Louisiana State fishermen are illegally fishing for 
sharks in Federal waters without a Federal shark permit. Once this 
issue is addressed, NMFS could extend the season and allow for more of 
the Federal quota to be caught by Federally-permitted fishermen.
    Response: Due to comments such as these during the fishing season, 
NMFS Office of Law Enforcement (OLE) investigated the allegations and 
intercepted one fisherman fishing without a Federal shark permit 
fishing in Federal waters in 2010. If suspected illegal activities are 
observed in any fishery and/or region, specific information regarding 
such incidents can be reported to NMFS OLE. Anyone can report suspected 
illegal activities to NMFS OLE by calling 1-800-853-1964 or by 
contacting a local OLE Division Office. The location of NMFS OLE 
Division Offices can be found at https://www.nmfs.noaa.gov/ole/contacts.html.
2. SCS Comments
    Comment 13: NMFS should not close the SCS fishery when 80 percent 
of the blacknose quota is caught. Blacknose sharks are not caught in 
the north Atlantic, and closing the entire SCS fishery when the 
blacknose shark quota reaches 80 percent could close down a healthy 
Atlantic sharpnose shark fishery that occurs year round in North 
Carolina.
    Response: In the final rule of Amendment 3 to the 2006 Consolidated 
HMS FMP (75 FR 30484, June 1, 2010), NMFS established new blacknose 
shark and non-blacknose SCS quotas and established that both fisheries 
would close when either quota reached, or was projected to reach, 80 
percent. This link between quotas was implemented because the status of 
the blacknose shark stock is overfished with overfishing occurring. 
Thus, given the small blacknose quota, it is most likely that the 
blacknose fishery would close before the non-blacknose fishery. 
However, blacknose sharks could suffer additional mortality in non-
blacknose SCS fisheries as bycatch. Closing both fisheries when either 
quota reached 80 percent helps ensure rebuilding of blacknose sharks. 
In addition, this offers an incentive to avoid blacknose sharks and 
target non-blacknose SCS so that the non-blacknose SCS fishery does not 
close with quota still available. During the proposed rule for 
Amendment 3, fishermen noted that they could target and avoid certain 
species of small coastal sharks. In addition, unlike blacknose sharks, 
any underharvest of the non-blacknose SCS quota could be added to the 
following year's fishing quota, since the stock status of finetooth, 
Atlantic sharpnose, and bonnethead sharks have all been determined to 
be healthy. These measures maximize the opportunity to harvest the 
healthy non-blacknose SCS while rebuilding and preventing overfishing 
on the blacknose shark stock.

B. Trip Limit Comments

    Comment 14: NMFS should not lower the trip limit to extend the 
season. Anything less than 33 non-sandbar LCS per trip would shut the 
fishery down since it would not be profitable for Federal fishermen.
    Response: With the implementation of Amendment 2, NMFS anticipated 
that setting the trip limit at 33 non-sandbar LCS would lead to non-
sandbar LCS being caught in an incidental manner in other fisheries, as 
the reduced trip limit would no longer provide an economically viable 
targeted fishery for non-sandbar LCS. However, an analysis of logbook 
data indicates that the non-sandbar LCS fishery has harvested, on 
average, less than the 33 non-sandbar LCS per trip limit. Specifically, 
the Coastal Fisheries Logbook data indicate that since the 
implementation of Amendment 2, the overall average number of non-
sandbar LCS landed per trip in the Gulf of Mexico and Atlantic regions 
was 21 and 13, for 2008 and 2009, respectively. Additionally, NMFS is 
aware that many shark fishermen continue to fish directly for large 
coastal sharks, particularly during times when other fisheries are 
closed. Therefore, it seems that targeted non-sandbar LCS trips have 
been conducted at lower harvest levels than the current trip limit. In 
this final rule, NMFS is not changing the trip limits. However, NMFS is 
implementing criteria for trip limit adjustments through inseason 
actions to provide fishermen more equitable access to the relevant 
shark resource throughout their appropriate region.
    Comment 15: Federal fishermen are concerned that the trip limit 
reduction

[[Page 76307]]

would not stop the Louisiana State fishermen from continuing to harvest 
a large proportion of the Gulf of Mexico quota.
    Response: On March 17, 2010 (75 FR 12700), after 42 days of 
fishing, NMFS closed the commercial non-sandbar LCS fishery in the Gulf 
of Mexico region. Inclement weather during this time period limited 
access to non-sandbar LCS by vessels fishing out of some areas of 
Florida, and allowed vessels from Louisiana, which were not as 
restrained by weather conditions, to continue to catch a majority of 
the non-sandbar LCS quota. In this final rule, NMFS implements 
regulations and criteria to lower and raise shark trip limits and allow 
fishermen more equitable access to the relevant shark resource 
throughout their appropriate region. Such flexibility should provide 
NMFS the opportunity to allow fishermen more equitable access to the 
relevant shark resource throughout their appropriate region by slowing 
a fishery down, as needed, if the quota is being harvested too quickly. 
However, NMFS is not implementing any changes in the shark trip limits 
at this time based on public comment. NMFS is also implementing 
regulations and criteria to allow flexibility in the opening dates of 
the commercial Atlantic shark fishing seasons in the future. Currently, 
NMFS will open the 2011 Gulf of Mexico non-sandbar LCS fishery on March 
1, 2011. NMFS anticipates that delaying the 2011 season opening until 
March 1, 2011, balances comments NMFS heard from constituents 
throughout the Gulf of Mexico region and would provide fishermen in 
both the eastern and western Gulf of Mexico the ability to catch a 
portion of the non-sandbar LCS shark quota during 2011.
    Comment 16: Extending the quota year-round would require NMFS to 
reduce the number of participants in the Atlantic shark fisheries. 
Changing the trip limits or opening dates would not change this.
    Response: As described above in response to Comment 15, at this 
time, the data do not provide enough information for NMFS to determine 
what trip limit would allow for a year-round fishery. However, in this 
rule, NMFS is implementing regulations and criteria to provide the 
flexibility to change to the opening date of the shark fisheries, as 
well as lower and raise shark trip limits, as necessary. Although no 
changes to shark trip limits are being implemented at this time, NMFS 
believes that the combination of these two regulations should provide 
fishermen with more equitable access to the relevant shark resource 
throughout their appropriate region, even if they do not result in a 
year-round fishery. NMFS is also requesting comments on an advance 
notice of proposed rulemaking (ANPR) that looks at different visions 
for the future of the shark fishery and potential short- and long-term 
changes to the regulations (September 20, 2010, 75 FR 57235). This ANPR 
could result in a rulemaking that considers, among other things, the 
number of participants in the fishery, appropriate trip limits, and the 
length of the fishing seasons.

C. General Comments

    Comment 17: NMFS should implement certain fishing days for sharks--
such as Mondays, Wednesdays, and Fridays--in order to lengthen the 
fishing season, similar to what was done in the Atlantic bluefin tuna 
fishery.
    Response: NMFS is aware of the problems being faced by the non-
sandbar LCS fishery, which include short fishing seasons. To address 
some of these problems, on September 20, 2010, NMFS published an ANPR 
(75 FR 57235) to initiate broad public participation in considering 
potential short- and long-term changes to the regulations governing the 
U.S. Atlantic shark fishery. This ANPR requests comments and potential 
solutions regarding ongoing issues currently affecting management of 
the shark fishery, including commercial landings that exceed the 
quotas, declining numbers of fishing permits since limited access was 
implemented, complex regulations, ``derby'' fishing conditions due to 
small quotas, and short seasons. Implementing certain fishing days to 
lengthen the shark fishing season could be one of the mechanisms 
considered in any rulemaking resulting from this ANPR. Comments on the 
ANPR will be accepted through January 14, 2010.
    Comment 18: In 2009, the non-sandbar LCS fishery in the Gulf of 
Mexico was closed before the quota was reached without applying any 
underharvest, but NMFS is planning to take away overharvest in 2010. 
All of the quota underharvest and overharvest should be equally 
applied.
    Response: The stock status for the non-sandbar LCS fishery is 
currently unknown. Under the regulations implemented in Amendment 2, 
NMFS does not transfer underharvest to the next fishing year for 
species whose stock status is unknown, overfished, or if overfishing is 
occurring. Not applying underharvest increases the likelihood that 
these stocks rebuild in a timely manner. However, NMFS transfers 
underharvest up to 50 percent of the base quota to the next fishing 
year for species whose stock status is not unknown, not overfished, or 
overfishing is not occurring. In addition, NMFS subtracts overharvests 
from the next fishing year for all species/complexes in order to ensure 
rebuilding plans are being met and fisheries remain sustainable.
    Comment 19: 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 2011 
shark season. These quotas were established to rebuild overfished 
stocks, prevent overfishing, and obtain optimum yield and were based on 
the best available science, per the requirements of the Magnuson-
Stevens Act. The final rule and accompanying documents do not reanalyze 
the overall management measures for sharks, which was done in Amendment 
2 and Amendment 3, and is being reviewed again through the ANPR process 
described above.
    Comment 20: NMFS needs to consider a balance between the interests 
of Florida and North Carolina along with the rest of the Atlantic 
States. NMFS should consider a north and south Atlantic region and/or 
bi-annual seasons.
    Response: NMFS implemented one fishing season and separate regions 
for the non-sandbar LCS fishery in the Gulf of Mexico and Atlantic in 
Amendment 2. The Agency preferred measures consistent with the 2006 LCS 
stock assessment by maintaining two regions: A Gulf of Mexico and 
Atlantic region. Maintaining two regions has several advantages, 
including: It adheres to the stock assessment for blacktip sharks, 
which assessed this species separately in the Gulf of Mexico and 
Atlantic; it accounts for overharvests that occur in the Gulf of Mexico 
and Atlantic more equitably; it allows for unique quotas to be 
implemented in each region that account for different species 
composition in each region; and, maintains the flexibility to implement 
unique regulations in the Gulf of Mexico and Atlantic Ocean.
    The shark fishery has traditionally been managed on a calendar 
year, and NMFS prefers to maintain this practice. As implemented in 
Amendment 2, NMFS has one shark fishing season, starting January 1 of 
each year. Opening on this date is more likely to overlap with open 
seasons for other BLL and gillnet fisheries and provide for fishermen a 
full calendar year to harvest available quota. Nonetheless, NMFS is 
reviewing different visions for the future of the shark fishery through 
an ANPR

[[Page 76308]]

process (see the response to comment 18). Changing regional boundaries 
could be one of the mechanisms considered in any rulemaking resulting 
from this ANPR.
    Comment 21: Non-sandbar LCS quota from the shark research fishery 
should be given to the Gulf of Mexico region.
    Response: Consistent with Amendment 2, underharvest of the shark 
research non-sandbar LCS fishery quota is not transferable to the Gulf 
of Mexico region. NMFS established a separate non-sandbar LCS and 
sandbar shark quota in the sandbar shark research fishery under 
Amendment 2. The sandbar shark research fishery allows for the 
collection of fishery-dependent data for future stock assessments while 
also allowing NMFS and commercial fishermen to conduct cooperative 
research to meet the shark research objectives for the Agency. The 
shark research fishery maintains time series data for stock 
assessments. The separate quotas allow each fishery to continue even if 
the non-sandbar LCS quota outside the research fishery is fulfilled. 
The research fishery itself continues until both the sandbar and non-
sandbar LCS landings reach 80 percent of the quotas established for the 
research fishery (i.e., if the non-sandbar LCS landings within the 
research fishery reached 80 percent of the quota, non-sandbar LCS 
retention in the research fishery ends, but sandbar sharks continue to 
be retained until that sandbar shark landings reached 80 percent of the 
sandbar quota). Transferring quota from the research fishery to the 
non-research shark fisheries could undermine the research objectives 
and the reason for the research fishery.
    Comment 22: NMFS needs to increase both the quota and trip limit.
    Response: NMFS implemented the current quotas and trip limits based 
on the latest NMFS-conducted stock assessments for blacknose, blacktip, 
dusky, and sandbar sharks, and the LCS complex, which represent the 
best available science by independent peer reviewers. The current quota 
and trip limits are consistent with rebuilding targets established in 
the latest shark stock assessments. Any changes in quotas would be 
based on new, future stock assessments. Implementing sub-alternative 2B 
would allow NMFS to adjust the trip limits (0-33 sharks per trip) via 
inseason actions based on certain criteria and process. This 
alternative anticipates that the quotas for some fisheries, such as the 
non-sandbar LCS fisheries, would not last the entire fishing year and 
builds in flexibility to try to extend the availability of the quota. 
The goal of the alternative is to lengthen the season to provide, to 
the extent practicable, furtherance of equitable fishing opportunities 
for commercial shark fishermen in all regions and areas while also 
considering the ecological needs of the different species. Recently, 
NMFS announced an ANPR (75 FR 57235, September 20, 2010) to gather 
public participation in considering potential short- and long-term 
changes to the regulations governing the U.S. Atlantic shark fishery. 
One such change could be to increasing the trip limits.
    Comment 23: Fishermen fishing in the mid-Atlantic closed area 
cannot keep spinner or silky sharks caught on pelagic longline (PLL) 
gear due to the indicator species list in the regulations. The 
indicator species list needs to be re-visited.
    Response: The purpose of this rulemaking is to adjust quotas and 
opening dates for the 2011 shark season. The final rule is not 
reanalyzing the overall management measures in the 2006 Consolidated 
HMS FMP. In the 2006 Consolidated HMS FMP, NMFS establish a 5 percent 
limit (by weight) on the allowable amount of pelagic ``indicator'' 
species that bottom longline vessels may possess or land from PLL 
closed areas, and establish a 5 percent limit (by weight) on the 
allowable amount of ``indicator'' demersal species that PLL vessels may 
possess or land from BLL closed areas (as measured relative to the 
total weight of all ``indicator'' species). The establishment of 
quantifiable species-based criteria to differentiate between PLL and 
BLL fishing gear in closed areas should help to eliminate ambiguities, 
because PLL gear would logically be expected to capture pelagic species 
and vice-versa. The indicator species list improves the monitoring and 
effectiveness of, and compliance with, HMS closed areas. Recently, NMFS 
initiated an ANPR (75 FR 57235, September 20, 2010), to gather public 
participation in considering potential short- and long-term changes to 
the regulations governing the U.S. Atlantic shark fishery. This comment 
can be addressed during the ANPR.
Changes From the Proposed Rule
    NMFS made several changes to the proposed rule as described below.
    1. NMFS changed the opening date of the non-sandbar LCS fishery in 
the Gulf of Mexico in the final rule from on or about January 1 to 
March 1, 2010. This change is being made to address public comment and 
in accordance with the criteria and process being finalized in this 
rule under sub-alternative 2A. Specifically, in the proposed rule, NMFS 
proposed to open the non-sandbar LCS in the Gulf of Mexico region on 
the effective date of the final rule. As described in the response to 
comments above, NMFS received many public comments from fishermen and 
dealers regarding a change in the opening date for the Gulf of Mexico 
non-sandbar LCS fishery. These comments suggested changing the opening 
date to around the religious holiday of Lent (i.e., beginning March 9, 
2011) when shark products are said to be more marketable, in the 
beginning to the middle of March of 2011 to have a more equitable 
opportunity to harvest the non-sandbar LCS quota, and around the same 
time as it did in 2010 (i.e., February). After reviewing these comments 
and the criteria being finalized in this rule under sub-alternative 2A, 
NMFS decided to delay the opening of the non-sandbar LCS fishery in the 
Gulf of Mexico region until March 1, 2011. Delaying the opening of the 
non-sandbar LCS fishery in the Gulf of Mexico region balances the 
comments received from all constituents in the Gulf of Mexico region 
and should provide further equitable shark fishing opportunities to all 
participants in the Gulf of Mexico region, consistent with National 
Standard 4.
    2. NMFS made changes in the final quotas of the Gulf of Mexico non-
sandbar LCS, non-blacknose SCS, and porbeagle shark fisheries based on 
landings updates through October 31, 2010. At the time the proposed 
rule published, shark landings updates (through July 31, 2010) 
indicated that the commercial Gulf of Mexico non-sandbar LCS quota had 
been exceeded by 17.4 metric tons (mt) dw during the 2010 commercial 
shark fishing season. Since then, additional landings have been 
reported, which have the effect of reducing the final quota by a total 
of 38.6 mt dw. Also, landing reports indicated that, in 2010, the non-
blacknose SCS fishery was underharvested by 92.9 mt dw and the 
porbeagle shark fishery was overharvested by 0.1 mt dw.
    3. NMFS changed the names of the sub-alternative 1B (establish a 
new non-sandbar LCS trip limit that would extend the fishing season in 
the Gulf of Mexico region) and sub-alternative 1C (establish a new non-
sandbar LCS trip limit that would extend the fishing season in the 
Atlantic region) to better describe the original intent of the 
alternative. Also, NMFS clarified that the changes to the trip limit 
would occur at the beginning of the fishing season, and would remain 
static for the

[[Page 76309]]

remainder of that season, to help ensure quotas last the whole year.

2011 Annual Quotas

    This final rule adjusts the commercial quotas due to over- and/or 
underharvests in 2009 and 2010. The 2011 annual quotas by species and 
species group are summarized in Table 1. All dealer reports that are 
received by NMFS after October 31, 2010, will be used to adjust the 
2012 quotas, as appropriate.

                                                         Table 1--2011 Annual Quotas and Opening Dates for the Atlantic Shark Fisheries
                                               [All quotas and landings are dressed weight (dw), in metric tons (mt), unless specified otherwise]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Preliminary 2010        Overharvest/       2011 Base annual
          Species group                   Region           2010 Annual quota       landings \1\          underharvest          quota \2\            2011 Quota          Season opening dates
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         (A).................  (B).................  (C)................  (D)................  (D+C)..............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Sandbar Large Coastal Sharks.  Gulf of Mexico......  390.5 (860,896 lb     429.1 (946,052 lb     -38.6 (-85,156 lb    390.5 (860,896 lb    351.9 (775,740 lb    March 1, 2011.
                                                          dw).                  dw).                  dw).                 dw).                 dw).
                                   Atlantic............  169.7 (374,121 lb     142 (312,952 lb dw).  ...................  187.8 (414,024 lb    190.4 \3\ (419,756   July 15, 2011.
                                                          dw).                                                             dw).                 lb dw).
Non-Sandbar LCS Research Quota...  No Regional Quotas..  37.5 (82,673 lb dw).  33.3 (73,471 lb dw).  ...................  37.5 (82,673 lb dw)  37.5 (82,673 lb dw)  January 1, 2011.
Sandbar Research Quota...........  ....................  87.9 (193,784 lb dw)  53.8 (118,599 lb dw)  ...................  87.9 (193,784 lb     87.9 (193,784 lb     ............................
                                                                                                                           dw).                 dw).
Non-Blacknose Small Coastal        ....................  221.6 (488,539 lb     128.7 (283,821 lb     92.9 (204,718 lb     221.6 (488,539 lb    314.4 (693,257 lb    ............................
 Sharks.                                                  dw).                  dw).                  dw).                 dw).                 dw).
Blacknose Sharks.................  ....................  19.9 (43,872 lb dw).  14.5 (31,981 lb dw).  ...................  19.9 (43,872 lb dw)  19.9 (43,872 lb dw)  ............................
Blue Sharks......................  ....................  273 (601,856 lb dw).  3.5 (7,700 lb dw)...  ...................  273 (601,856 lb dw)  273 (601,856 lb dw)  ............................
Porbeagle Sharks.................  ....................  1.5 (3,307 lb dw)...  1.6 (3,576 lb dw)...  -0.1 (-269 lb dw)..  1.7 (3,748 lb dw)..  1.6 (3,479 lb dw)..  ............................
Pelagic Sharks Other Than          No Regional Quotas..  488 (1,075,856 lb     116.5 (256,800 lb     ...................  488 (1,075,856 lb    488 (1,075,856 lb    January 1, 2011.
 Porbeagle or Blue.                                       dw).                  dw).                                       dw).                 dw).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Landings are from January 1, 2010, until October 31, 2010, and are subject to change.
\2\ 2010 annual base quotas for sandbar and non-sandbar LCS are the annual adjusted base quotas that are effective from July 24, 2008, until December 31, 2012 (50 CFR 635.27(b)(1)(iii) and
  (iv)).
\3\ NMFS intends to adjust the 2011 quota for Atlantic non-sandbar LCS to account for the 2.6 mt dw that was over estimated in the landings report in 2010 after the final rule establishing the
  2010 quota published.

1. 2011 Quotas for Non-Sandbar LCS and Sandbar Sharks Within the Shark 
Research Fishery

    Since no overharvests of the non-sandbar LCS and sandbar shark 
quotas within the shark research fishery occurred during the 2010 
fishing year, pursuant to Sec.  635.27(b)(1)(iii), the 2011 adjusted 
base annual quotas within the shark research fishery will be 37.5 mt dw 
(82,673 lb dw) for non-sandbar LCS and 87.9 mt dw (193,784 lb dw) for 
sandbar sharks.

2. 2011 Quotas for the Non-Sandbar LCS in the Gulf of Mexico Region

    Since an overharvest of 38.6 mt dw for the non-sandbar LCS quota 
for the Gulf of Mexico region occurred during the 2010 fishing year, 
pursuant to Sec.  635.27(b)(1)(i)(A), the 2011 adjusted base annual 
quota for non-sandbar LCS in the Gulf of Mexico region will be 351.9 mt 
dw (775,740 lb dw).

3. 2011 Quotas for the Non-Sandbar LCS in the Atlantic Region

    The 2011 annual quota for non-sandbar LCS in the Atlantic region is 
190.4 mt dw (419,756 lb dw). In the final rule establishing the 2010 
quotas (75 FR 250, January 5, 2010), NMFS accounted for an overharvest 
of non-sandbar LCS of 18.1 mt dw (39,903 lb dw) using data that were 
reported as of October 31, 2009. Between that date and December 31, 
2009, the reported landings dropped by 2.6 mt dw. This decline is due 
to normal quality control procedures that occur when updated data are 
supplied. As such, in accordance with Sec.  635.27(b)(1)(i), the amount 
that was deducted from the 2010 annual quota, based on preliminary 
numbers that were later corrected, will be added to the 2011 non-
sandbar LCS quota in the Atlantic region. Thus, the 2011 annual 
commercial non-sandbar LCS quota will be 190.4 mt dw (419,756 lb dw) 
(187.8 mt dw annual base quota + 2.6 mt dw 2009 overestimated landings 
= 190.4 mt dw 2011 adjusted annual quota).

4. 2011 Quotas for SCS and Pelagic Sharks

    Since no overharvests of blue sharks and pelagic sharks other than 
porbeagle or blue sharks occurred during the 2010 fishing year, 
pursuant to Sec.  635.27(b)(1)(v), the 2010 annual base quotas for blue 
sharks and pelagic sharks other than porbeagle or blue sharks will be 
273 mt dw (601,856 lb dw) and 488 mt dw (1,075,856 lb dw), 
respectively. NMFS does not apply underharvest to any of the pelagic 
sharks.
    Since the 2010 underharvest of the non-blacknose SCS complex was 
92.9 mt dw, pursuant to Sec.  635.27(b)(1)(i)(B), that amount will be 
applied to the 2011 quota. The 2011 adjusted base annual quota for non-
blacknose SCS will be 314.4 mt dw (693,257 lb dw).
    Since an overharvest of 0.1 mt dw for the porbeagle shark quota 
occurred during the 2010 fishing year, pursuant

[[Page 76310]]

to Sec.  635.27(b)(1)(i)(A), the 2011 adjusted base annual quota for 
porbeagle sharks will be 1.6 mt dw (3,479 lb dw).
Fishing Season Notification for the 2010 Atlantic Commercial Shark 
Fishing Season
    Based on the criteria and processes described in sub-alternative 2A 
in the final EA and public comment, the 2011 Atlantic commercial shark 
fishing season for the shark research, non-blacknose SCS, blacknose 
sharks, blue sharks, porbeagle sharks, and pelagic sharks (other than 
porbeagle and blue sharks) in the northwestern Atlantic Ocean, 
including the Gulf of Mexico and the Caribbean Sea, will open on 
January 1, 2011. The non-sandbar LCS in the Gulf of Mexico region will 
open on March 1, 2010. The non-sandbar LCS fishery in the Atlantic 
region will open on July 15, 2010.
    All of the shark fisheries will remain open until December 31, 
2011, unless NMFS determines that the fishing season landings for 
sandbar shark, non-sandbar LCS, blacknose, non-blacknose SCS, blue 
sharks, porbeagle sharks, or pelagic sharks (other than porbeagle or 
blue sharks) has reached, or is projected to reach, 80 percent of the 
available quota. At that time, consistent with 50 CFR 635.27(b)(1), 
NMFS will file for publication with the Office of the Federal Register 
a notice of closure for that shark species group and/or region that 
will be effective no fewer than 5 days from the date of filing. From 
the effective date and time of the closure until NMFS announces, via a 
notice in the Federal Register, that additional quota, if any, is 
available, the fishery for the shark species group and, for non-sandbar 
LCS, region will remain closed, even across fishing years, consistent 
with 50 CFR 635.28(b)(2). As a reminder, the blacknose and non-
blacknose SCS fisheries will close together when landings reach 80 
percent of either quota.

Classification

    NMFS has determined that this action is consistent with the 
Magnuson-Stevens Act, including the national standards, and other 
applicable law.
    Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator (AA) 
for Fisheries has determined that there is good cause to waive the 30-
day delay in effective date for the pelagic shark, shark research, 
blacknose shark, and non-blacknose small coastal shark fisheries as 
such a delay would be contrary to the public interest. Providing a 30-
day delay in effectiveness for the opening of the pelagic shark, shark 
research, blacknose shark, and non-blacknose small coastal shark 
fisheries would be contrary to the public interest due to the negative 
economic impact on fisherman and on the fishery resource, and the 
diminished opportunity for collection of scientific data needed to 
manage the fisheries.
    Allowing for a delay in the effectiveness of this rule, which would 
result in the closure of the pelagic shark fishery from January 1, 
2011, until the effective date of this rule, could be detrimental to 
the management of these species because it may lead to the discard of 
any sharks caught by this fishery. In addition, discarding sharks could 
result in lost ex-vessel revenue for fishermen. In the case of the 
pelagic shark fishery (which includes blue, shortfin mako, porbeagle, 
common thresher, and oceanic whitetip sharks), this fishery is 
conducted as a bycatch fishery by those fishermen targeting other 
species such as swordfish, yellowfin tuna, and bigeye tuna. This 
incidental fishery continues throughout the year with no closure date 
anticipated in the FMP. If the provisions in this rule are not made 
effective on January, 1, 2011, there would be a break in the continuity 
of this fishery, which would force the fishermen to discard, dead or 
alive, any pelagic sharks that are caught. Such discards would not be 
counted against the commercial quota, which could negatively affect 
certain species such as porbeagle sharks, which has a limited quota and 
is closely monitored to ensure it is not exceeded. Under the rebuilding 
plan for porbeagle sharks, NMFS established a total allowable catch 
(TAC) of 11.3 mt dw based on current commercial landings of 1.7 mt dw, 
current commercial discards of 9.5 mt dw, and current recreational 
landings of 0.1 mt dw. As described in previous documents, estimating 
dead discards accurately is more difficult than accounting for 
landings. Landing fish, rather than discarding them dead, helps NMFS 
monitor the TAC properly in order to rebuild the porbeagle shark. 
Opening the fishery would ensure that any mortality associated with 
landings would be counted against the quota.
    Regarding the shark research fishery, NMFS selects a small number 
of fishermen to participate in the shark research fishery each year for 
the purpose of providing NMFS 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. Specifically, 
the shark research fishery allows for the collection of fishery-
dependent data for future stock assessments, including specific 
biological and other data that are priorities for improving future 
stock assessments, and allows NMFS and commercial fishermen to conduct 
cooperative research to meet the shark research objectives for NMFS. 
Some of the shark research objectives include collecting reproductive 
and age data, monitoring size distribution, and tagging studies. The 
information collected in early January could be used for future stock 
assessments. Delaying the opening of the shark research fishery would 
not allow NMFS the ability to maintain the time-series of abundance for 
shark species or collect vital biological and regional data. Preventing 
NMFS from conducting the necessary research trips could hinder the 
collection of scientific data and limit the ability of NMFS to manage 
the shark fisheries, which would be contrary to the public good.
    Regarding the blacknose shark and non-blacknose SCS fisheries, 
these fisheries have both a directed component, where fishermen target 
SCS, 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 SCS 
throughout the year. Delaying this action to allow for a 30-day delay 
in effectiveness would force all fishermen to discard, dead or alive, 
any SCS that are caught before this rule becomes effective. Such 
discards would not be counted against the commercial quota. Opening the 
fishery on January 1, 2011, would ensure that any mortality associated 
with landings would be counted against the quota. If these SCS 
fisheries did not open until the effective date of this rule, which is 
expected to be after January 1, 2011, the closure of the blacknose 
shark and non-blacknose SCS fisheries would occur during the time 
period when SCS fishermen typically fish for SCS species, and 
therefore, fishermen would experience negative economic impacts that 
would continue until the fisheries are opened. Additionally, fishermen 
who catch SCS incidental to their target catch would also experience 
negative economic impacts. For these reasons, the AA finds good cause 
to waive the 30-day delay in effectiveness.
    NMFS prepared a final EA for this rule that discusses the impact on 
the human environment as a result of this rule. In this final action, 
NMFS is adding flexibility to shark management measures by establishing 
criteria that would allow for delays to the opening date of the 
different shark species/complex fisheries each year as well as

[[Page 76311]]

allow for inseason adjustments to the shark trip limits, as 
appropriate, to extend the fishing season, as necessary. These measures 
are consistent with National Standard 4, which NMFS must not 
discriminate between residents of different States. Also, NMFS must 
consider fishing opportunities that are fair and equitable to all 
fishermen. A copy of the EA is available from NMFS (see ADDRESSES).
    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 has prepared a Final Regulatory Flexibility Analysis (FRFA) 
for this final rule, which analyzed the impacts of adding flexibility 
to shark management measures and adjustments to the non-sandbar LCS, 
non-blacknose SCS, 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. A summary of the FRFA is below. The 
full FRFA and analysis of social and economic impacts are available 
from NMFS (see ADDRESSES).
    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 2011 proposed quotas for non-
sandbar LCS, sandbar sharks, non-blacknose SCS, 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. These adjustments are being implemented according to the 
regulations implemented for the 2006 Consolidated HMS FMP and its 
Amendments. Thus, NMFS would expect few, if any, economic impacts to 
fishermen other than those already analyzed in the 2006 Consolidated 
HMS FMP and its amendments. An additional purpose is to provide 
flexibility in the regulations to allow for a delay in the opening of 
the fishing season, and allow inseason adjustments in the trip limits 
to slow the fishery down during the season, as necessary. This 
flexibility is intended to provide, to the extent practicable, 
equitable opportunities across the fishing management region while also 
considering the ecological needs of the different species. While there 
are some direct negative economic impacts associated with the measures