Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 69537

(b) and (c) under § 224.103, as 

paragraphs (c) and (d), respectively, and 

a new paragraph (b) was added for the 

Alaska humpback whale approach 

regulations. However, the final rule did 

not make the changes to the right whale 

approach regulations, which were 

previously codified as paragraph (b), 

necessary to reflect the redsignation as 

paragraph (c). In other words, the 

subparagraphs under the right whale 

approach regulations still referred to its 

previous location in paragraph (b).

This rule does not substantively 

impact the public’s current 

expectations, increase the scope of the 

regulated community, or add any new 

requirements to these regulations. This 

rule makes a minor change to the 

regulations for approaching right 

whales, which corrects an unintended 

error caused by a previous final rule that 

reordered the paragraphs in § 224.103.

Need for Correction

As published, the regulations 

governing approaches to right whales 

contain errors that may be misleading 

and need to be corrected.

Classification

The Assistant Administrator for 

Fisheries, NMFS (AA) finds that good 

cause exists to waive the requirement 

for prior notice and the opportunity for 

comment, pursuant to 5 U.S.C. 

553(b)(B). Such procedures would be 

unnecessary because the changes made 

in this rule do not substantively change 

the regulations for approaching right 

whales. Therefore, it does not alter the 

scope of the regulated community nor 

add any new requirements. For the same 

reasons, the AA finds that good cause 

exists to waive the 30–day delay in 

effective date. Any delay in 

implementing this technical change 

would be impracticable, unnecessary, 

and contrary to the public interest. A 

delay in implementing these changes 

would be unnecessary because they do 

not substantively alter the regulations 

for approaching right whales by 

increasing the scope of the regulated 

community or adding any new 

requirements. Accordingly, pursuant to 

5 U.S.C. 553(d)(3), a delay in the 

effective date is waived.

In addition, because general notice of 

proposed rulemaking is not required 

under 5 U.S.C. 553, or any other law, 

the analytical requirements of the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et seq., are inapplicable.

This action is not subject to review 

under Executive Order 12866 because 

the changes made are non-substantive.

This final rule does not impact the 

human environment, therefore, NMFS 

has determined that this action is not 

subject to the analytical requirements of 

the National Environmental Policy Act.

This final rule does not contain 

policies with federalism implications 

under Executive Order 13132.

List of Subjects in 50 CFR part 224

Endangered and threatened species, 

Reporting and recordkeeping 

requirements.

■ For the reasons set out in the preamble, 

50 CFR part 224 is corrected by making 

the following correcting amendments:

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES

■ 1. The authority citation for part 224 

continues to read as follows:

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq.

§ 224.103 [Amended] 

2. In the table below, in § 224.103, for 

each paragraph indicated in the left 

column, remove text from the middle 

column from wherever it appears in the 

paragraph, and add the text indicated in 

the right column:

Paragraph Remove Add 

(c)(1) ......... (b)(3) (c)(3)

(c)(1)(ii) ..... (b)(2) (c)(2)

(c)(2) ......... (b)(3) (c)(3)

(c)(3)(i) ...... (b)(1) and 

(b)(2)

(c)(1) and 

(c)(2)

(c)(3)(ii) ..... (b)(1) and 

(b)(2)

(c)(1) and 

(c)(2)

(c)(3)(iii) .... (b)(1) and 

(b)(2)

(c)(1) and 

(c)(2)

(c)(3)(iv) .... (b)(1) and 

(b)(2)

(c)(1) and 

(c)(2)

(c)(3)(v) ..... (b)(2) (c)(2)

Dated: November 23, 2004.

John Oliver,

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service.

[FR Doc. 04–26413 Filed 11–29–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 635

[Docket No. 040910261–4325–02; I.D. 

072704A]

RIN 0648–AS08

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 final rule adjusts the 

regional quotas and establishes new 

trimester season quotas for large coastal 

sharks (LCS) and small coastal sharks 

(SCS) based on updated landings 

information. This final rule includes a 

framework mechanism for the annual 

adjustment of quotas, a method of 

accounting for over- or underharvests in 

the transition from semi-annual to 

trimester seasons, and a new process for 

notifying participants of season opening 

and closing dates and quotas. This final 

rule also announces the opening and 

closing dates for the LCS fishery based 

on adjustments 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: This final rule is effective on 

January 1, 2005. The Atlantic 

commercial shark fishing season 

opening and closure dates are provided 

in Table 1 under SUPPLEMENTARY

INFORMATION. The 2005 second and third 

trimester season dates will be published 

at a later date in the Federal Register.

ADDRESSES: For copies of the Final 

Environmental Assessment/Regulatory 

Impact Review/Initial Regulatory 

Flexibility Analysis (EA/RIR/IRFA) 

contact Chris Rilling, Highly Migratory 

Species Management Division at 1315 

East-West Highway, Silver Spring, MD 

20910 or at (301) 713–1917 (fax). Copies 

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:

Opening and Closure Dates

The Atlantic commercial shark fishing 

season opening and closure dates are 

provided in the following table:

69538 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 

TABLE 1 – OPENING AND CLOSURE DATES

Species Group Region First Trimester Season Opening Dates First Trimester Season Closure Dates 

Large Coastal Sharks ....... Gulf of Mexico ....................... January 1 - February 28, 2005, 11:30 

p.m. local time.

February 15, - April 30, 2005, 11:30 pm 

local time

...................................... South Atlantic ........................ January 1 - February 15, 2005, 11:30 

p.m. local time.

February 28, - April 30, 2005, 11:30 pm 

local time

...................................... North Atlantic ......................... January 1 - April 30, 2005, 11:30 p.m. 

local time.

April 30, 2005, 11:30 pm local time

Small Coastal Sharks ....... Gulf of Mexico ....................... January 1 - April 30, 2005, 11:30 p.m. 

local time.

April 30, 2005, 11:30 pm local time

...................................... South Atlantic ........................ ............................................................. April 30, 2005, 11:30 pm local time

...................................... North Atlantic ......................... ............................................................. April 30, 2005, 11:30 pm local time

Blue sharks ....................... No regional quotas ................ January 1 - April 30, 2005, 11:30 p.m. 

local time.

April 30, 2005, 11:30 pm local time

Porbeagle sharks .............. No regional quotas ................ ............................................................. April 30, 2005, 11:30 pm local time

Pelagic sharks other than 

blue or porbeagle.

No regional quotas ................ ............................................................. April 30, 2005, 11:30 pm local time

Background

The Atlantic shark fishery is managed 

under the authority of the MagnusonStevens 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.

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 2004 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.

On September 17, 2004, NMFS 

published a proposed rule (69 FR 

56024) to: update the regional quotas 

that were established in Amendment 1, 

implement new trimester season quotas, 

and account for over- or underharvests 

in the transition from semi-annual to 

trimester seasons. The proposed rule 

also considered a framework 

mechanism to adjust regional quotas on 

an annual basis, as necessary. NMFS 

held three public hearings during the 

public comment period, which closed 

on October 18, 2004, for both the 

proposed rule and the Draft EA.

Recent updates to the regional 

landings data and new data collected 

since the publication of the December 

24, 2003, final rule (68 FR 74746) 

indicate that the regional quotas need to 

be adjusted. The preamble of the 

September 17, 2004 proposed rule (69 

FR 56024) contains the alternatives that 

were considered and is not repeated 

here.

Additionally, beginning on January 1, 

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 final rule divides each region’s 

quota among the three trimester seasons, 

and accounts for over- or underharvests 

in the transition from semi-annual to 

trimester seasons.

Response to Comments

Comments on the September 17, 2004, 

proposed rule (69 FR 56024) received 

during the public comment period are 

summarized below and are organized 

according to the alternatives considered 

in the proposed rule, together with 

NMFS’ responses.

Regional Quota Adjustment

Comment 1: NMFS should make as 

few changes as possible until it has a 

better handle on the data.

Response: NMFS has updated 

landings information that represents the 

best information available and indicates 

that updates to the regional quotas are 

warranted. The updated information is 

based on several different databases that 

were analyzed for shark landings as part 

of this rulemaking, including: the 

canvass, quota monitoring, Northeast 

Commercial Fisheries database system 

(CFDBS), and snapper grouper logbook 

databases. NMFS believes that by 

considering a cross-section of different 

databases the reliability of the data is 

enhanced and any potential errors will 

be minimized and mitigated to the 

extent possible.

Comment 2: The North Atlantic 

region landings outlined in the Draft EA 

do not appear to be accurate.

Response: NMFS agrees that the 

landings data referred to by the 

commenter on page 21 of the Draft EA 

were incorrect. This discrepancy 

resulted from the inclusion of North 

Carolina landings in the North Atlantic 

region. The North Carolina landings 

should have been included in the South 

Atlantic region. This error has been 

corrected in the final EA and the final 

rule. As a result of this correction, the 

percentages for the Gulf of Mexico and 

South Atlantic increased by 3 percent, 

and the North Atlantic decreased by 3 

percent.

Comment 3: NMFS should select the 

single LCS and single SCS quota 

(Alternative A4) as the preferred 

alternative because the current 

accounting method (of regional 

landings) is not accurate.

Response: While selecting a single 

quota for LCS and SCS may simplify 

management, it does not account for 

regional differences in shark 

availability, current and historic 

landings, or timing of seasons. For 

example, the potential exists for the 

entire quota to be harvested in the South 

Atlantic and Gulf of Mexico during the 

first trimester season before the North 

Atlantic has had an opportunity to fish. 

Regional quotas help address these 

differences in shark availability and 

timing of seasons. NMFS believes that 

regional quotas provide a more 

equitable means of allocating quota and 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 69539

ensure that each region is given the 

opportunity to harvest a quota that 

reflects historic landings in the region.

Comment 4: The effort shift to the 

Gulf of Mexico happened because of the 

ridgeback/non-ridgeback switch in 

2003. Everyone was allowed to fish for 

blacktip sharks until May 15, but there 

are no blacktip sharks in North Carolina. 

Thus, the South Atlantic season has 

been unfairly shortened.

Response: While it is true that the 

ridgeback/non-ridgeback categories 

provided a larger quota for blacktip 

sharks (non-ridgeback) when compared 

with sandbar sharks (ridgeback) - which 

resulted in a longer season for 

ridgebacks in 2003 - the season lengths 

were longer in all regions, not just the 

Gulf of Mexico. Higher landings of 

blacktip sharks may have occurred in 

the Gulf of Mexico in 2003 as a result, 

however, NMFS analyzed several years 

of data in establishing regional quotas 

(1999–2003) to account for interannual 

variability and minimize the overall 

impact of landings in a single year. The 

shift in effort from the South Atlantic to 

the Gulf of Mexico has taken place over 

a number of years as a result of a 

number of factors including closures of 

the Florida East Coast to pelagic 

longline gear and the Oculina Banks. 

Therefore, NMFS does not believe that 

the season for the South Atlantic region 

is being unfairly shortened.

Comment 5: NMFS should explain 

why the regional quotas are so different 

from what they were in Amendment 1.

Response: Regional quotas in this 

final rule and Environmental 

Assessment are different from 

Amendment 1 to the HMS FMP because 

of errors in the data that have been 

corrected since Amendment 1 as well as 

the consideration of two additional 

years of landings data (from 2002–2003) 

which were included in the analysis. 

These data indicate an increase in 

landings in the Gulf of Mexico over the 

past several years and a leveling off or 

decrease in landings in the South 

Atlantic, depending on which database 

is analyzed. Since NMFS took the 

average of three databases that were 

available for the Southeast, the result 

was a net decrease in quota for the 

South Atlantic. This shift in effort is 

evident in landings data from years 

prior to the establishment of regional 

quotas in Amendment 1, in which the 

fishery was operating under a single 

quota for LCS and SCS. Thus, it is not 

likely that regional quotas were the 

causative factor in the shift in landings. 

The current regional quotas provide the 

best estimate of historic and current 

landings and fishing effort in the 

various regions.

Comment 6: NMFS is doing the right 

thing by developing a quota distribution 

scheme that will preclude one region 

from receiving an inequitable share of 

the overall quota.

Response: NMFS believes that the 

framework mechanism for adjusting 

regional quotas will cap the amount of 

quota that may be transferred from one 

region to another in any given year. This 

should prevent a drastic shift in quota 

from one region to another.

Trimester Season Allocations

Comment 7: NMFS should select the 

equal distribution of trimester season 

quotas for each region (Alternative B1) 

as the preferred alternative because it 

represents the fairest distribution of 

quota and would have the least impact 

on fishermen impacted by the midAtlantic closure.

Response: NMFS agrees that the equal 

distribution of trimester season quotas 

may be appropriate from some regions 

such as the Gulf of Mexico and the 

South Atlantic where harvest rates 

remain fairly stable throughout the year. 

However, the quotas should be allocated 

according to historic landings in the 

North Atlantic region. The North 

Atlantic region has historically 

harvested less than 20 percent of its 

annual landings during the first semiannual season because sharks have not 

yet migrated into the region.

Comment 8: The current trimester 

season preferred alternative only allows 

approximately 16 trips in the South 

Atlantic during the third trimester 

season. NMFS should consider 

transferring the portion of the quota that 

would have been caught by North 

Carolina fishermen in the time/area 

closure during the first trimester season 

to the second and third trimester 

seasons.

Response: The final preferred 

alternative will divide the Gulf of 

Mexico and the South Atlantic trimester 

season quotas equally. See response to 

comment 7 above. As a result, the 

second and third trimester season 

quotas in the South Atlantic will be 

higher than they were in the proposed 

rule and should result in greater than 16 

trips per season.

Comment 9: The North Atlantic 

region should not have any quota during 

the first trimester season. Its quota 

should be allocated to second and third 

trimester seasons when sharks are 

available.

Response: NMFS agrees that the North 

Atlantic trimester season quotas should 

be allocated according to historic 

landings in the region. A majority of the 

overall LCS quota for the North Atlantic 

will thus be available during the second 

and third trimester seasons. Some LCS 

quota will be available for the first 

trimester season to account for nominal 

landings that have occurred during this 

period.

Comment 10: The way the seasons are 

set up now will result in catches of 

juvenile sharks. The summer season is 

when adults are caught; spring and fall 

are when juveniles and spawning 

females are caught. Dusky sharks are 

rarely caught in the summer. There 

should be no fishing in May or June for 

any participants in the fishery because 

this is the prime shark pupping season.

Response: The shark pupping season 

occurs from March through September 

in the Atlantic Ocean and Gulf of 

Mexico with a possible peak from May 

through June. The LCS fishery has 

usually been closed for at least some of 

the time during these peak pupping 

months. In order to reduce the 

likelihood of interactions with juvenile 

and reproductive female sharks, NMFS 

is considering a delay to the start of the 

second trimester season. A proposed 

start date for the second trimester 

season will be filed with the Office of 

the Federal Register for publication in 

early 2005.

Accounting for Over- or Underharvest in 

the Transition from Semi-Annual to 

Trimester Seasons

Comment 11: NMFS should select 

Alternative C4 to divide any over- or 

underharvest from the first semi-annual 

season between the first and second 

trimester seasons, and any over- or 

underharvest from the second semiannual season to the second and third 

trimester seasons. This would give 

North Carolina fishermen a better 

chance at catching some of the quota 

since portions of North Carolina will be 

closed from January 1 to July 30 due to 

the time/area closure.

Response: NMFS received several 

comments in support of this alternative 

and agrees that this would be an 

appropriate method of accounting for 

over- or underharvest in the transition 

from semi-annual to trimester seasons. 

Thus, NMFS has selected it as the final 

preferred alternative in this final rule.

General

Comment 12: All shark catching and 

killing should be banned.

Response: NMFS does not believe that 

banning all shark fishing is warranted 

for the following reasons: a number of 

businesses, including fishermen, 

processors, suppliers, and dealers could 

be forced out of business and a number 

of communities, including recreational 

fishing communities, would be 

adversely affected. In addition, the 

current rebuilding plans that are in 

69540 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 

place ensure a sustainable fishery and 

viability of Atlantic shark populations, 

as well as the requirements of the 

Magnuson-Stevens Act and other 

domestic laws.

Comment 13: A number of 

commenters suggested that NMFS 

should consider starting the second 

trimester season on either July 6, 2005, 

at the earliest, or on August 1 to help 

market balance and ease the economic 

hardship on fishermen in North 

Carolina who will be impacted by the 

time/area closure.

Response: NMFS is aware of concerns 

that starting the shark fishing season 

just prior to the Fourth of July weekend 

is not conducive to the sale and 

marketing of shark product. 

Consequently, NMFS will consider 

alternative start dates in a proposed rule 

regarding the second trimester season 

lengths and quotas in early 2005.

Comment 14: NMFS should set aside 

adequate incidental quota to reduce/

eliminate regulatory discards by 

covering the inevitable incidental 

catches in many other fisheries.

Response: The 2002 LCS stock 

assessment took into account discards 

from target and non-target fisheries in 

determining maximum sustainable yield 

estimates upon which the quotas are 

based. However, setting aside an 

incidental quota to reduce or eliminate 

regulatory discards would further 

reduce the already low LCS commercial 

quota. This reduction of quota could 

impose additional economic hardships. 

NMFS may consider, consistent with 

the Magnuson-Stevens Act, an 

incidental quota as the stock rebuilds 

and the fishery stabilizes.

Comment 15: The current proposal for 

regional and trimester quotas eliminates 

what little remained of the shark fishery 

off North Carolina. How is this proposal 

consistent with National Standard 4?

Response: The final preferred 

alternatives of distributing quotas in 

proportion to historic landings, 

allocating trimester season quotas 

equally, and dividing over- or 

underharvests from the first semiannual season of 2004 to the first and 

second trimester seasons of 2005 are 

consistent with National Standard 4 

(NS4). As described in Amendment 1 to 

the HMS FMP, the establishment of 

regional quotas is not a direct allocation 

of fishing privileges nor does it 

discriminate between shark fishermen 

in different regions or states. The 

regional quota allocations are based on 

average historical landings and are 

intended to enhance equity. Even if the 

establishment of regional quotas might 

be considered an allocation, the regional 

quota system is consistent with NS4. It 

is fair and equitable because it is based 

on historical landings, and NMFS will 

be able to monitor how quotas are used 

and adjust them over time to promote 

achievement of optimum yield. With 

regard to North Carolina, NMFS believes 

that allocating 42 percent of the total 

LCS quota, and 88 percent of the total 

SCS quota to the South Atlantic region, 

and dividing the quota equally between 

the three trimester seasons will help 

minimize economic impacts to 

fishermen impacted by the time/area 

closure.

Comment 16: NMFS should maintain 

the semi-annual quotas that treat all 

states equally without changes to the 

quota allocation due to regulatory 

induced shifts in landings.

Response: The ecological and 

economic impacts of converting to 

trimester seasons were thoroughly 

analyzed in Amendment 1 to the HMS 

FMP. The proposed rule and this final 

rule do not propose reverting back to 

semi-annual seasons. NMFS believes 

that regional quotas, which are based on 

historic landings data, provide an 

equitable means of distributing quota.

Comment 17: NMFS should put 

pressure on states that are not in line 

with Federal shark laws.

Response: NMFS agrees and has been 

working with states to improve stateFederal consistency in how shark 

fisheries are managed.

Comment 18: Why is the Gulf of 

Mexico region opened longer than the 

South Atlantic, and will this not result 

in an overharvest again?

Response: The 2005 first trimester 

season in the South Atlantic region 

closes on February 15, 2005, and the 

Gulf of Mexico closes on March 15, 

2005. To estimate closure dates, NMFS 

calculated the average reported catch 

rates for each region from the first semiannual season 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. Catch rates in 

the South Atlantic are higher than catch 

rates in the Gulf of Mexico, particularly 

during the months of January and 

February. Additionally, the South 

Atlantic quotas are lower than in the 

Gulf of Mexico. As a result, the South 

Atlantic season is shorter than the Gulf 

of Mexico season. NMFS has been using 

this type of method for calculating 

season length since 1999. Since that 

time, the number of overharvests has 

been reduced. However, if the quota is 

exceeded the overharvest will be 

deducted from the following year’s 

quota for the same fishing season and 

region.

Comment 19: Were pelagic longline 

logbook data included in the analysis of 

regional quotas?

Response: Pelagic longline logbook 

data were not included in the analysis 

because landings in that logbook are 

reported in numbers of fish, rather than 

fish weights as in the coastal fisheries 

logbook and the other databases used in 

the analysis. Additionally, although LCS 

are occasionally caught in the pelagic 

longline fishery, a majority of the LCS 

and SCS landings are reported in the 

coastal fisheries logbook. Furthermore, 

dealer data from the canvass, QMS, and 

Northeast CFDBS would also capture 

landings attributable to the pelagic 

longline fishery.

Changes From the Proposed Rule

NMFS has made several changes to 

the September 17, 2004 proposed rule 

(69 FR 56024). These changes are 

outline below.

1. In the proposed rule, NMFS 

proposed to allocate 49, 38, and 13 

percent of the overall LCS quota to the 

Gulf of Mexico, South Atlantic, and 

North Atlantic, respectively. Due to an 

error in calculating regional landings, 

NMFS corrects the regional quotas for 

LCS in the Gulf of Mexico, South 

Atlantic and North Atlantic to 52, 41, 

and 7 percent of the overall LCS 

landings quota for each of the regions 

respectively. The error was attributed to 

including North Carolina landings in 

the North Atlantic region rather than in 

the South Atlantic region.

2. In the proposed rule, NMFS 

considered several alternatives for 

trimester season quota allocations, 

including allocating quotas according to 

historical landings as the preferred 

alternative. During the public comment 

period, NMFS heard comments in favor 

of splitting quotas evenly between the 

three trimester seasons in the Gulf of 

Mexico and the South Atlantic and 

setting quotas according to historic 

landings for the North Atlantic region. 

This allocation was proposed because 

sharks are available throughout much of 

the year in the Gulf of Mexico and 

South Atlantic regions, whereas the 

shark harvesting period occurs 

primarily during the summer months in 

the North Atlantic region. Additionally, 

concerns were raised about allocating a 

large portion of the South Atlantic quota 

to the first trimester season when the 

time/area closure off North Carolina will 

be in effect. This could have had a 

negative economic impact on fishermen 

in North Carolina. By dividing the 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 69541

quotas equally between the three 

trimester seasons a greater proportion of 

the quota will be available during 

August and September when the time/

area closure is no longer in effect. As a 

result, the final rule will divide the 

quotas for the Gulf of Mexico and South 

Atlantic equally between the trimester 

seasons. The North Atlantic quota will 

be divided according to historical 

landings, with more of the quota being 

allocated to the summer months.

3. In the proposed rule, NMFS 

considered several alternatives to 

account for over- or underharvests in 

the transition from semiannual to 

trimester seasons. During the public 

comment period, NMFS heard 

comments in favor of dividing any overor underharvests from the first 

semiannual season equally between the 

first and second trimester seasons, and 

any over- or underharvests from the 

second semiannual season equally 

between the second and third trimester 

seasons. As a result, in this final rule, 

NMFS will divide any over- or 

underharvests according to this method.

Annual Landings Quota

The base 2005 annual landings quotas 

for LCS and SCS will be 1,017 mt dw 

(2,242,078 lb dw) and 454 mt dw 

(1,000,888.4 lb dw), respectively. The 

2005 quota levels for pelagic, blue, and 

porbeagle sharks are 488 mt dw 

(1,075,844.8 lb dw), 273 mt dw 

(601,855.8 lb dw), and 92 mt dw 

(202,823.2 lb dw), respectively.

As of October 2004, the overall first 

2004 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 semiannual 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. As described below, the regional 

quotas will be adjusted based on these 

over- or underharvests.

Regional Landings Quotas

The first 2004 semiannual fishing 

season quota for LCS was established at 

443.1 mt dw (December 24, 2003, 68 FR 

74746). A June 15, 2004, final rule (69 

FR 33321) adjusted the North Atlantic 

regional quota from a 50/50 to a 20/80 

split between the first and second semiannual seasons resulting in an adjusted 

quota of 8.0 mt dw for the first 

semiannual season in the North 

Atlantic. Applying the regional 

percentages established in Amendment 

1 this equated to 244.7, 190.3, and 8.0 

mt dw for the South Atlantic, Gulf of 

Mexico, and North Atlantic regions, 

respectively. As of October 2004, 

approximately 486.9 mt dw LCS had 

been reported landed from all regions.

Consistent with this final rule, the 

annual LCS quota (1,017 mt dw) is split 

among the regions as follows: 52 percent 

to the Gulf of Mexico, 41 percent to the 

South Atlantic, and 7 percent to the 

North Atlantic.

Also consistent with this final rule, 

the LCS quota for the Gulf of Mexico 

and the South Atlantic is further split 

equally (33.3 percent/season) between 

the three trimester seasons. The quota 

for the North Atlantic will be 4, 88, and 

8 percent, for the first, second, and third 

trimester seasons, respectively.

In the 2004 first semi-annual season, 

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. Consistent with this final 

rule, the over- or underharvests will be 

divided equally between the first and 

second trimester seasons. Thus, the LCS 

quotas for the 2005 first trimester season 

is established as follows: the Gulf of 

Mexico - 156.3 mt dw (1,017*.52*.333–

39.7/2)(344,579 lb dw); South Atlantic - 

133.3 mt dw (1,017*.41*.333–11.1/

2)(293,873 lb dw); and North Atlantic - 

6.3 mt dw (1,017*.07*.04+7/2)(13,889 lb 

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 

233.2, 36.5, and 11.2 mt dw for the 

South Atlantic, North Atlantic, and the 

Gulf of Mexico regions, respectively. As 

of October 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 final rule, the 

annual SCS quota (454 mt dw) 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.

Also consistent with this final rule, 

the SCS quota for the Gulf of Mexico 

and the South Atlantic is further split 

equally (33.3 percent/season) between 

the three trimester seasons. The quota 

for the North Atlantic will be 1, 9, and 

90 percent, for the first, second, and 

third trimester seasons, respectively, 

based on historical landings.

In the 2004 first semi-annual season, 

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. Consistent with this final 

rule, the over- or underharvests will be 

divided equally between the first and 

second trimester seasons.

Thus, the SCS quotas for the 2005 first 

trimester season are as follows: the Gulf 

of Mexico - 13.9 mt dw (454*.10*.333–

2.4/2) (30,644 lb dw); South Atlantic 

213.5 mt dw (454*.88*.333+161/

2)(470,682 lb dw); and North Atlantic - 

18.6 mt dw (454*.02*.06+36.1/2)(41,056 

lb dw).

The 2005 annual quota levels for 

pelagic, blue, and porbeagle sharks are 

established at 488 mt dw (1,075,844.8 lb 

dw), 273 mt dw (601,855.8 lb dw), and 

92 mt dw (202,823.2 lb dw), 

respectively. These are the same quotas 

that were established in the HMS FMP. 

As of October 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 

under 50 CFR 635.27(b)(1)(iv). The 2005 

first trimester quotas for pelagic, blue, 

and porbeagle sharks are established at 

162.7 mt dw (358,688 lb dw), 91 mt dw 

(200,619 lb dw), and 30.7 mt dw (67,681 

lb dw), respectively.

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, will open on January 1, 2005. To 

estimate the LCS fishery closure dates, 

NMFS calculated the average reported 

catch rates for each region from the first 

semi-annual 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 date 

and the beginning of the second 

trimester season (May 1, 2005) 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 

69542 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 

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 92 percent of the 

available LCS quota (156.3 mt dw) 

would likely be taken by the end of 

February and 109 percent of the 

available LCS quota would likely be 

taken by the second week of March. 

Dealer data also indicate that, on 

average, approximately 9.8 mt dw 

(21,605 lb dw) of LCS have been 

reported received by dealers after a 

Federal closure. This is approximately 6 

percent of the available quota. Thus, if 

catch rates in 2005 are similar to the 

average catch rates from 2001 to 2004, 

98 percent (92 + 6 percent) of the quota 

could be caught by the end of February. 

If the fishery remains open until the 

second week of March, the quota would 

likely be exceeded (109 + 6 percent = 

115 percent). Accordingly, the Gulf of 

Mexico LCS fishery will close on 

February 28, 2005, at 11:30 p.m. local 

time.

Based on average LCS catch rates in 

recent years in the South Atlantic 

region, and accounting for the reduction 

in effort due to the time/area closure off 

North Carolina, approximately 69 

percent of the available LCS quota 

(133.3 mt dw) would likely be taken by 

the second week of February and 86 

percent of the available LCS quota 

would likely be taken by the end of 

February. Dealer data also indicate that, 

on average, approximately 35 mt dw 

(77,161 lb dw) of LCS have been 

reported received by dealers after a 

Federal closure. This is approximately 

27 percent of the available quota. Thus, 

if catch rates in 2005 are similar to the 

average catch rates from 2001 to 2004, 

96 percent (69 + 27 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 (86 + 27 

percent = 113 percent). Thus, the South 

Atlantic LCS fishery will close 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 60 percent of the 

available LCS quota (6.3 mt dw) would 

likely be taken by the end of April. 

Dealer data also indicate that no LCS 

landings have been reported received by 

dealers after a Federal closure and 

before the start of the second trimester 

season on May 1, 2005. Accordingly, the 

North Atlantic LCS fishery will close on 

April 30, 2005, at 11:30 p.m. local time.

Classification

This final rule is published under the 

authority of the Magnuson-Stevens Act, 

16 U.S.C. 1801 et seq.

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866.

As required under the Regulatory 

Flexibility Act, NMFS prepared an 

Initial Regulatory Flexibility Analysis 

(IRFA) for the proposed rule (69 FR 

56024, September 17, 2004) and 

prepared a Final Regulatory Flexibility 

Analysis (FRFA) for the final rule. The 

FRFA examines the anticipated 

economic impacts of the preferred 

actions and any significant alternatives 

to the final rule that could minimize 

economic impacts on small entities. A 

summary of the information presented 

in the FRFA is below. The full FRFA 

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 final rule is being implemented 

to update the LCS and SCS regional 

quotas based on updated landings 

information and to implement a 

framework mechanism for annual 

adjustment of quotas. This final rule 

also allocates trimester season quotas, 

addresses the one-time transfer of overor underharvests from semi-annual 

(2004) to trimester (2005) seasons, and 

modifies the fishing season notification 

requirement.

The need for and objective of the final 

rule are fully described in the preamble 

of the proposed rule (69 FR 56024, 

September 17, 2004) and in the final 

EA/RIR/FRFA and are not repeated in 

this rule.

As set forth above, NMFS received 

several comments on the proposed rule 

and draft EA during the comment 

period. NMFS did not receive any 

comments specific to the IRFA, but did 

receive a limited number of comments 

on the potential impact of regional 

quotas, trimester season quota 

allocations, and transferring over- or 

underharvest from semiannual to 

trimester seasons. In summary, 

commenters noted that regional quotas 

would result in a reduction in quota for 

the South Atlantic that, coupled with 

allocating regional quotas to trimester 

seasons based on historical landings, 

could have negative economic impacts 

on fishermen affected by the time/area 

closure off North Carolina.

The IRFA for the proposed rule 

acknowledged that there could be 

negative economic impacts as a result of 

lowering quotas for the South Atlantic, 

but noted that the quotas were based 

upon updated landings that indicate a 

shift in fishing effort in recent years 

from the South Atlantic to the Gulf of 

Mexico. In order to mitigate some of the 

impacts described in the comments, 

NMFS will divide the regional quotas 

for the South Atlantic and the Gulf of 

Mexico equally between the three 

trimester seasons, rather than dividing 

them according to historic landings, 

which would have resulted in the 

largest quota during the first trimester 

season when the time/area closure off 

North Carolina is in effect. Dividing the 

quotas equally between the trimester 

seasons will result in a higher quota for 

the second and third trimester seasons 

for the South Atlantic region. Given that 

NMFS is considering a delay to the start 

date of the second trimester season, a 

larger portion of the South Atlantic 

quota may be available to fishermen off 

North Carolina during the second and 

third trimester seasons when the time/

area closure will no longer be in effect. 

In addition, NMFS will transfer over- or 

underharvests from the 2004 first semiannual season to the 2005 first and 

second trimester seasons, rather than to 

the first trimester season only, to further 

mitigate the impact of overharvests that 

occurred during the 2004 first 

semiannual season.

This rule could directly impact 

commercial shark fishermen and dealers 

in the Atlantic, Gulf of Mexico, and 

Caribbean. 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, 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 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, spent approximately $1,765.49, 

$570.97, and $398.65 for fuel, bait, and 

ice, respectively, per trip.

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 69543

An analysis of the economic impacts 

on the active directed and incidental 

shark permit holders was conducted as 

part of the FRFA. The preferred 

alternative to modify the regional LCS 

and SCS quotas based on updated 

landings information will increase the 

existing LCS regional quotas, and 

therefore potential landings, by 3 

percent for the North Atlantic and 10 

percent for the Gulf of Mexico, while 

reducing the South Atlantic quota by 13 

percent. For SCS, the regional quotas 

will be increased by 6 percent for the 

Gulf of Mexico and 4 percent for the 

South Atlantic, and will be decreased by 

10 percent for the North Atlantic. Based 

on landings and revenue information 

obtained from the 2003 logbooks, these 

potential increases or decreases in 

landings may result in similar increases 

or decreases to gross revenue, however, 

NMFS is unable to predict future exvessel prices for shark products.

The preferred measures outlined in 

this final 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 on a sustainable 

basis. Other alternatives such as 

maintaining current regional quotas, 

establishing new regional quotas 

without an adjustment mechanism, 

establishing single quotas for LCS and 

SCS, or combining quotas in the Gulf of 

Mexico and South Atlantic regions were 

not preferred because they fail to base 

quotas on updated landings information 

or fail to provide a means of revising 

quotas on an annual basis, as necessary, 

to adjust for shifts in fishing effort and 

over- or underharvests. They also fail to 

minimize economic hardships that may 

result due to fishery closures or an 

inability to harvest the full quota for 

LCS and SCS. Furthermore, although 

several of the alternatives considered 

establishing a single quota that would 

have simplified management, this could 

have also resulted in regional inequality 

in shark landings. For example, 

fishermen in the North Atlantic would 

be at a disadvantage due to their 

geographic location and harvest periods 

that occur later in the year than in the 

Gulf of Mexico and South Atlantic 

regions. Maintaining the regional and 

trimester quotas promotes market 

stability by ensuring the availability of 

shark products year round and in all 

locales, and ensures a harvest in each 

region.

The alternative to remove the 30–day 

requirement to publish a fishing 

season’s length and quotas will be 

replaced with a proposed and final rule 

process. This will provide greater 

opportunity for public comment, and is 

not expected to result in negative 

economic impacts.

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 

final rule and the Magnuson-Stevens 

Act, NMFS cannot change the 

requirements only for small entities. 

Additionally, all of the measures in this 

final 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 final rule are 

not practicable.

This final rule does not contain any 

new reporting or recordkeeping 

requirements. This final rule would not 

increase the administrative burden or 

professional skills required of permit 

holders to maintain compliance with 

commercial shark regulations.

Overall economic impacts of adjusting 

the regional quotas are expected to be 

minimal. Economic data from LCS 

revenues generated in 2003 indicate that 

the final adjustments to the regional 

quotas would result in an increase in 

gross revenues to the Gulf of Mexico 

(+3.5 percent; $62,503) and North 

Atlantic (+.01 percent; $3,083) regions, 

and a decrease in gross revenues to the 

South Atlantic (-2.6 percent; $60,006) 

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 2003 for 

LCS).

The other alternatives considered may 

have negative economic impacts on 

fishery participants because they are not 

based on the best information available 

and do not provide the necessary 

flexibility to address changes in regional 

fishing effort and over- or 

underharvests. NMFS received 

comments in support of establishing a 

single quota for LCS or SCS and 

eliminating the existing regional quotas. 

While a single quota system would 

simplify management and monitoring of 

the fishery, regional quotas provide a 

more effective means of ensuring that 

historical catches and equitable 

distribution of quotas are maintained, 

accounting for regional differences in 

fishing effort, and providing flexibility 

to reduce mortality on juveniles and 

reproductive female sharks.

The final preferred alternatives for 

trimester season quota allocations and 

accounting for over- or underharvests in 

the transition from semi-annual to 

trimester seasons are not expected to 

have adverse economic impacts. The 

final preferred alternative for allocating 

trimester season quotas equally in the 

Gulf of Mexico and South Atlantic 

regions, and according to historical 

landing in the North Atlantic was 

selected because it provides equitable 

distribution of quotas based on the 

requirements of each of the regions. The 

final preferred alternative of dividing 

any over- or underharvests from the first 

semiannual season equally between the 

first and second trimester seasons will 

help minimize any economic impacts to 

the South Atlantic and should have 

little or no impact on the Gulf of Mexico 

or the North Atlantic.

Economically, the final alternatives 

provide the greatest benefit to those 

fishermen who will not have an 

opportunity to fish for sharks during the 

mid-Atlantic closure from January 

through July 2005. By dividing regional 

quotas equally among the trimester 

seasons, and dividing over- or 

underharvests from the 2004 first semiannual season equally between the 2005 

first and second trimester seasons, 

fishermen in the South Atlantic region 

will have an opportunity to harvest a 

potentially larger quota during the 

second and third trimester seasons 

compared to the other alternatives.

This final rule contains no new 

collection-of-information requirements 

subject to review and approval by the 

69544 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act (PRA). Notwithstanding any other 

provisions of the law, no person is 

required to respond to, nor shall any 

person be subject to, a penalty for 

failure to comply with a collection of 

information subject to the requirements 

of the PRA unless that collection of 

information displays a currently valid 

OMB control number.

The Biological Opinion (BiOp) 

prepared in October 2003, pursuant to 

the Endangered Species Act, 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 quotas 

and trimester seasons were actions 

finalized in Amendment 1 to the HMS 

FMP and therefore, were included in the 

BiOp. This final 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 equally across trimester 

seasons, and transfer over- or under 

harvests from semi-annual to trimester 

seasons.

NMFS believes the preferred 

alternatives would have no adverse 

impact on targeted species for reasons 

described above, and minimal 

ecological impact on protected species 

because the number of interactions 

during the second and third trimester 

seasons has historically been low when 

compared to the first trimester season. 

For example, a majority (30 out of 55) 

of the observed sea turtle interactions 

from 1999–2004 occurred during 

January and February. Sea turtle 

interactions during the second and third 

trimester seasons are much lower (16 

out of 55). Since the measures 

implemented in this final rule will 

reduce effort during the first trimester 

season, impacts on sea turtles should be 

minimal.

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 advance notice to 

prepare for the upcoming season. Given 

Amendment 1 to the HMS FMP and 

recent 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 quota 

adjustments.

NMFS determined that this rule will 

be implemented in a manner that is 

consistent, to the maximum extent 

practicable, with the enforceable 

policies of the approved coastal zone 

management (CZM) programs of coastal 

states in the Atlantic, Gulf of Mexico, 

and Caribbean. NMFS asked for states’

concurrence with this determination 

during the proposed rule stage. Seven 

states replied affirmatively regarding the 

consistency determination, and NMFS 

presumes that the states that have not 

yet responded concur with the 

determination. One state, North 

Carolina, replied that allocating quotas 

according to historic landings, was not 

consistent with the State’s CZM 

program. North Carolina commented 

that since the time/area closure will be 

in effect from January through July, 

dividing the quota according to 

historical landings would result in 

‘‘frontloading’’ or allocation of a large 

portion of the South Atlantic’s quota to 

the first trimester season when 

fishermen off of North Carolina will be 

unable to fish. North Carolina felt that 

dividing the quota equally among the 

three trimester seasons would allocate a 

larger proportion of the quota to the 

second and third trimester seasons than 

would have been the case using historic 

landings, and that this would mitigate 

the economic impact on the South 

Atlantic region and North Carolina 

fishermen in particular. In the proposed 

rule, NMFS considered several 

alternatives for trimester season quota 

allocations, including allocating quotas 

according to historical landings as the 

preferred alternative. During the public 

comment period, NMFS heard 

comments in favor of splitting quotas 

evenly between the three trimester 

seasons in the Gulf of Mexico and the 

South Atlantic but according to historic 

landings for the North Atlantic region 

because of fishing opportunities that 

occur later in the year. As a result, the 

final rule will divide the Gulf of Mexico 

and South Atlantic trimester season 

quotas equally. The North Atlantic 

quota will be divided according to 

historical landings. Therefore, NMFS 

finds that these final regulations are 

consistent with all applicable approved 

coastal zone management programs to 

the maximum extent practicable.

List of Subjects in 50 CFR Part 635

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Treaties.

Dated: November 23, 2004.

John Oliver,

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Services.

■ For the reasons set out in the preamble, 

50 CFR part 635 is 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 § 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:

§ 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.

* * * * *

(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: 52 percent 

to the Gulf of Mexico, 41 percent to the 

South Atlantic, and 7 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. 

Consistent with the Administrative 

Procedure Act, NMFS will publish in 

the Federal Register, prior to the 

beginning of the season, any annual 

adjustments.

(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.

* * * * *

(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 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Rules and Regulations 69545

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 

annual quota based on the following 

criteria: if a region has an overharvest of 

10 percent or greater of its regional 

annual 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 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 equally (33.3 percent/

season) among the trimester seasons in 

the Gulf of Mexico and the South 

Atlantic regions, and based upon 

historic landings of 4, 88, and 8 percent 

for the first, second, and third trimester 

seasons, respectively, in the North 

Atlantic region. 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.

(4) Consistent with the Administrative 

Procedure Act, NMFS will publish in 

the Federal Register, prior to the 

beginning of the season, any annual 

adjustments. 

(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.

* * * * *

[FR Doc. 04–26414 Filed 11–24–04; 2:33 pm]

BILLING CODE 3510–22–S