75122 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[CG Docket Nos. 02–278 and 05–338] 

Rules and Regulations Implementing 

the Telephone Consumer Protection 

Act of 1991; Junk Fax Prevention Act 

of 2005 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document contains 

revisions to the final regulations of the 

Telephone Consumer Protection Act of 

1991 (TCPA). The regulations relate to 

unwanted telephone solicitations 

pursuant to the TCPA. 

DATES: Effective December 14, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Erica McMahon or Lynne Montgomery, 

Consumer & Governmental Affairs 

Bureau, (202) 418–2512. 

SUPPLEMENTARY INFORMATION: The 

Commission published a document in 

the Federal Register on July 25, 2003, 

68 FR 44144, which revised the TCPA 

rules and adopted new regulations to 

provide consumers with options for 

avoiding unwanted telephone 

solicitations. The Commission revises 

the final regulations to reflect recent 

updates to other provisions of part 64 

relative to the TCPA. 

List of Subjects in 47 CFR Part 64 

Communications common carriers, 

Telecommunications, Telephone. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 64 as 

follows: 

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS 

■ 1. The authority citation for part 64 

continues to read as follows: 

Authority: 47 U.S.C. 154, 254(k) secs. 

403(b)(2)(B), (c), Pub. L. 104–104, 110 Stat. 

56. Interpret or apply 47 U.S.C. 201, 218, 222, 

225, 226, 228, and 254(k) unless otherwise 

noted. 

■ 2. Amend § 64.1200 by revising 

paragraph (c) introductory text to read 

as follows: 

§ 64.1200 Delivery restrictions. 

* * * * * 

(c) No person or entity shall initiate 

any telephone solicitation, as defined in 

paragraph (f)(12) of this section, to: 

* * * * * 

■ 3. Amend § 64.1601 by revising 

paragraph (e) to read as follows: 

§ 64.1601 Delivery requirements and 

privacy restrictions. 

* * * * * 

(e) Any person or entity that engages 

in telemarketing, as defined in section 

64.1200(f)(10) must transmit caller 

identification information. 

* * * * * 

[FR Doc. E6–21308 Filed 12–13–06; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 060925247–6323–02; I.D. 

091106B] 

RIN 0648–AU84 

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 and temporary rule 

for emergency action; request for 

comments on temporary rule for 

emergency action. 

SUMMARY: This combined final and 

temporary rule for emergency action 

establishes the 2007 first trimester 

season quotas for large coastal sharks 

(LCS), small coastal sharks (SCS), and 

pelagic sharks and publishes the 

opening and closing dates for the LCS 

fishery based on adjustments to the 

trimester quotas. The final rule also 

opens the existing mid-Atlantic shark 

closed area in July 2007, pending 

available quota. This combined rule is 

needed to address over- and 

underharvests that occurred in the 

Atlantic shark fishery in the first 

trimester of 2006. 

DATES: Final Rule: The pelagic shark 

quotas, North Atlantic regional LCS and 

SCS quotas, North Atlantic regional LCS 

season, South Atlantic regional LCS 

quota and season opening and closing 

dates are provided in Table 2 under 

SUPPLEMENTARY INFORMATION. 

The revision to the mid-Atlantic shark 

closed area under § 635.21(d)(1) is 

effective January 1, 2007. 

Temporary Rule for Emergency 

Action: The Gulf of Mexico regional LCS 

and SCS quotas, Gulf of Mexico regional 

LCS season, and South Atlantic regional 

SCS quota are being taken via a 

temporary rule for emergency action 

and are effective on January 1, 2007, 

until June 12, 2007. 

The Atlantic commercial shark quotas 

and fishing season opening and closing 

dates for the temporary rule for 

emergency action as set forth in this 

document are provided in Table 2 under 

SUPPLEMENTARY INFORMATION. 

Comments on the temporary rule for 

emergency action must be received no 

later than February 12, 2007. 

ADDRESSES: For copies of the Final 

Environmental Assessment/Regulatory 

Impact Review/Final Regulatory 

Flexibility Analysis (EA/RIR/FRFA), 

please contact Michael Clark at 1315 

East-West Highway, Silver Spring, MD 

20910, or at (301) 713–1917 (fax). 

Copies are also available from the HMS 

website at http://www.nmfs.noaa.gov/ 

sfa/hms/. Written comments on the 

temporary rule for emergency action 

portions of this action may be submitted 

to Michael Clark, Highly Migratory 

Species Management Division via: 

• E-mail: SF1.091106B@noaa.gov. 

Include in the subject line the following 

identifier: I.D. 091106B. 

• Mail: 1315 East-West Highway, 

Silver Spring, MD 20910. Please mark 

on the outside of the envelope 

‘‘Comments on the Emergency Rule for 

2007 1st Trimester Season Lengths and 

Quotas.’’

• Fax: 301–713–1917. 

• Federal e-Rulemaking portal: http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Michael Clark or Karyl Brewster-Geisz 

by phone: 301–713–2347 or by fax: 301–

713–1917. 

SUPPLEMENTARY INFORMATION: 

Background 

The Atlantic shark fishery is managed 

under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). NMFS recently finalized a 

Consolidated Highly Migratory Species 

Fishery Management Plan (HMS FMP) 

that consolidated and replaced previous 

FMPs for Atlantic Billfish and Atlantic 

Tunas, Swordfish, and Sharks. The 

HMS FMP is implemented by 

regulations at 50 CFR part 635. 

Currently, the Atlantic shark annual 

quotas, with the exception of pelagic 

sharks, are split among three regions 

based on historic landings. Consistent 

with 50 CFR 635.27(b)(1)(iii) and (iv), 

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

split among the three regions as follows: 

52 percent to the Gulf of Mexico, 41 

percent to the South Atlantic, and 7 

percent to the North Atlantic. The 

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Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 75123 

annual SCS quota (454 mt dw) is split 

among the three regions as follows: 10 

percent to the Gulf of Mexico, 87 

percent to the South Atlantic, and 3 

percent to the North Atlantic. The 

regional quotas for LCS and SCS are 

divided equally between the trimester 

seasons in the South Atlantic and the 

Gulf of Mexico, and according to 

historical landings of 4, 88, and 8 

percent for LCS, and 1, 9, and 90 

percent for SCS in the first, second, and 

third trimester seasons, respectively, in 

the North Atlantic. Consistent with 50 

CFR 635.27(b)(1)(iii) and (vi), any overor underharvest in a given region from 

the 2006 first trimester season will be 

carried over to the 2007 first trimester 

season in that region. 

On October 5, 2006 (71 FR 58778), 

NMFS published a draft EA and 

proposed rule that examined the 

regional quotas and proposed season 

lengths for the 2007 first trimester 

season for LCS managed under the HMS 

FMP. This rule was based on dealer 

reports received by August 24, 2006, 

indicating that approximately 230 

percent (326.1 mt dw) of the LCS for the 

South Atlantic region had been reported 

harvested during the first trimester of 

2006. At that time, the Gulf of Mexico 

and North Atlantic regions had reported 

approximately 46 and 6 percent of their 

LCS quotas, respectively, as being 

harvested. 

On October 20, 2006, NMFS was 

informed that due to late Federal shark 

dealer reports, significant landings of 

LCS and SCS from the Gulf of Mexico 

region during the first trimester in 2006 

may not have been included in previous 

published landings estimates and the 

proposed rule. On November 1, 2006, 

NMFS published a second Federal 

Register notice (71 FR 64213) extending 

the comment period on the proposed 

rule to November 13, 2006. On 

November 13, 2006, NMFS published a 

revised shark landings update and 

extended the comment period for the 

proposed rule to November 17, 2006 (71 

FR 66154). As of November 13, 2006, 

landings estimates indicated that 151.1 

percent (336.6 mt dw) of the LCS quota 

and 527 percent (78 mt dw) of the SCS 

quota for the Gulf of Mexico region had 

been landed during the first trimester of 

2006. Additionally, landings estimates 

for the South Atlantic region increased 

to a total of 287.2 percent (393.1 mt dw) 

of the LCS quota and 15.6 percent (44.5 

mt dw) of the SCS quota for the first 

trimester of 2006. The North Atlantic 

region harvested only 3.8 percent (0.2 

mt dw) of its LCS quota and 0 percent 

of the SCS quota during the first 

trimester in 2006. 

To address the overharvests in the 

South Atlantic and Gulf of Mexico 

regions and the underharvest in the 

North Atlantic region, NMFS is 

implementing LCS and SCS 

management measures outlined in Table 

1 via this combined final and temporary 

rule for emergency action. These 

measures are necessary to ensure that 

over- and underharvests from 2006 are 

accounted for and social and economic 

impacts of the over- and underharvests 

are analyzed. The overall annual 

baseline quota for LCS and SCS has not 

been affected. 

TABLE 1. QUOTA AND SEASON MANAGEMENT ACTIONS THAT WILL BE TAKEN FOR ATLANTIC SHARKS IN DIFFERENT

MANAGEMENT REGIONS. 

Species Complex 

Region 

North Atlantic South Atlantic Gulf of Mexico 

Large Coastal Sharks Final Rule Final Rule Temp. rule for emergency action 

Small Coastal Sharks Final Rule Temp. rule for emergency action Temp. rule for emergency action 

All Pelagic Sharks Final rule 

Two of the five alternatives that were 

initially analyzed in the draft EA and 

proposed rule no longer apply. These 

were alternative 2 (to adjust the South 

Atlantic regional LCS quota for the first 

trimester by transferring up to 10 

percent of the 2006 first trimester quota 

from the Gulf of Mexico region) and 

alternative 5 (to transfer LCS 

underharvest from the Gulf of Mexico’s 

first trimester of 2006 to the South 

Atlantic region in 2007). Since an 

underharvest of LCS in the Gulf of 

Mexico region during the 2006 first 

trimester no longer exists, quota cannot 

be transferred in 2007 to cover the 

overharvest of LCS in the South Atlantic 

region during the 2006 first trimester. 

The alternatives that were analyzed 

(former alternatives 1, 3, and 4) have 

been renumbered as alternatives A1, A2, 

and A3. The renumbered alternatives 

have been carried forward and analyzed 

in the final EA. NMFS is finalizing 

preferred alternative A2, which was also 

the preferred alternative in the proposed 

rule. The preamble of the October 5, 

2006, proposed rule (71 FR 58778) 

contains the alternatives that have been 

carried forward and analyzed in the 

final EA and final rule and is not 

repeated here. The final two alternatives 

(Alternatives A4 and A5) would have 

modified the percent of the annual 

baseline quota each region received 

based on recent harvest (A4) or would 

have spread the impacts of the current 

overharvest out over several years (A5). 

Due to the overharvest of LCS and 

SCS in the Gulf of Mexico during the 

2006 first trimester, NMFS analyzed 

four new alternatives to address the LCS 

quota and season length in the Gulf of 

Mexico region and SCS quotas in the 

South Atlantic and Gulf of Mexico 

regions. One alternative (alternative B1), 

if selected, would maintain existing 

procedures for addressing regional 

trimester over- and underharvests for 

SCS when establishing the regional 

quotas for the first trimester of 2007 

(status quo). This alternative would 

close the Gulf of Mexico regional SCS 

fishery during the 2007 first trimester 

due to the extensive overharvest in the 

2006 first trimester. It would also apply 

the underharvests in the first trimester 

of 2006 to the 2007 first trimester for the 

North and South Atlantic regions, 

resulting in 2007 first trimester quotas 

of 18.8 mt dw and 371.6 mt dw, 

respectively. NMFS did not select this 

alternative because it would cause 

negative economic impacts on the Gulf 

of Mexico region by not allowing a SCS 

fishery during the 2007 first trimester. 

The preferred alternative (alternative 

B2) transfers 63.2 mt dw of the South 

Atlantic’s regional SCS underharvest 

during the 2006 first trimester to the 

Gulf of Mexico region in the 2007 first 

trimester. This gives the Gulf of Mexico 

region a 15.1 mt dw SCS quota and 

affords them a SCS fishery that would 

have otherwise not been possible. 

NMFS prefers this alternative because it 

has positive economic impacts in the 

Gulf of Mexico region. In addition, 

NMFS does not anticipate that the quota 

transfer in this alternative will affect the 

South Atlantic region since the region 

has never caught their full SCS quota in 

a given trimester, and NMFS is still 

adjusting their quota with significant 

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75124 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 

underharvest of SCS during each 

trimester. Finally, NMFS anticipates 

minimal ecological impacts by the quota 

transfer, given the similar catch 

composition of SCS between the South 

Atlantic and Gulf of Mexico regions. 

Unlike blacktip sharks, SCS are not 

thought to exhibit population structure 

between the Atlantic Ocean and Gulf of 

Mexico. 

The third new alternative (alternative 

B3), if selected, would transfer 126.4 mt 

dw of the South Atlantic’s regional SCS 

underharvest during the 2006 first 

trimester to the Gulf of Mexico region in 

the 2007 first trimester. This amount 

would cover the overharvest of SCS in 

the Gulf of Mexico during the 2006 first 

trimester (63.2 mt dw) as well as give 

the region additional SCS quota during 

the 2007 first trimester. NMFS did not 

select this alternative because under the 

other preferred alternative, alternative 

A2, the South Atlantic region will be 

closed to directed LCS fishing during 

the 2007 first trimester. Therefore, the 

South Atlantic region might need a 

larger SCS quota during the 2007 first 

season to compensate for the LCS 

fishery closure. 

The last new alternative (alternative 

B4), if selected, would transfer SCS 

underharvests from each region during 

the 2006 first trimester into a reserve 

category that would then be used to 

cover the overharvest of any region in 

the 2007 first trimester. NMFS did not 

selected this alternative because it could 

cause negative economic impacts in the 

North and South Atlantic regions and 

because this type of action would be 

more appropriate in a permanent rule 

rather than a temporary rule. Under the 

status quo, alternative B1, the 2006 first 

trimester underharvests in the North 

and South Atlantic regions would carry 

over to their quotas in the 2007 first 

trimester, resulting in 2007 first 

trimester quotas of 18.8 and 371.6 mt 

dw, respectively. However, under this 

alternative, the North and South 

Atlantic regions would allocate their 

baseline first trimester SCS quotas or 0.1 

and 131.5 mt dw, respectively. This 

would be a difference in SCS quota of 

18.7 and 240.1 mt dw, respectively. 

Response To Comments 

Comments on the October 5, 2006, 

proposed rule (71 FR 58778) received 

from October 5, 2006, through 

November 17, 2006, are summarized 

below and are organized according to 

issue, together with NMFS’ responses. 

A. Economic Aspects of the Shark 

Fishery 

Comment 1: NMFS received a 

comment regarding the phase-out of 

most, if not all, of the U.S. Atlantic 

commercial shark fishery, and a 

buyback program because numerous 

fishermen will be affected by the 

abbreviated fishing season in 2007 and 

pending regulations based upon the LCS 

and dusky shark stock assessment. 

Stopgap measures such as the 

institution of minimum sizes, retention 

of all fins for better species 

identification, and designation of 

additional closed areas do not appear, at 

the time, to be capable of slowing the 

decline of LCS. Directed commercial 

fisheries for sandbar and other LCS 

fisheries cannot continue much longer, 

except perhaps with a tightly limited 

and monitored commercial fishery 

directed at the blacktip shark in the Gulf 

of Mexico. 

Response: This rule addresses 

overharvests that occurred in the South 

Atlantic and Gulf of Mexico regions and 

establishes the appropriate fishing 

seasons and quotas for the first trimester 

of 2007, consistent with the rebuilding 

plan established in 2003 (December 24, 

2003; 68 FR 74746). An amendment to 

the Consolidated Highly Migratory 

Species Fishery Management Plan will 

be forthcoming in 2007 (November 7, 

2006; 71 FR 65086). The amendment 

will implement measures to address the 

recent stock assessments for LCS and 

dusky sharks, which indicate that these 

species are in need of more protective 

measures to prevent further declines in 

their abundance. The measures 

included in this amendment will be 

wide-ranging and evaluate the most 

effective means of aligning harvest of 

LCS with the most recent stock 

assessments. Such measures could 

include those listed in the comment. 

Additionally, NMFS is currently 

reviewing a buyback business plan 

conducted by the Gulf of Mexico and 

South Atlantic Fisheries Foundation for 

the industry and submitted to NMFS in 

September 2006. 

Comment 2: NMFS received 

numerous comments stating that shark 

fishermen are also impacted by 

restrictions and management measures 

in other fisheries, especially the reef 

fish, snapper/grouper, and golden 

tilefish fisheries. Fishermen in Cocoa 

Beach, FL indicated that quota cuts in 

the golden tilefish fishery off the 

Atlantic coast of Florida coupled with 

the proposed closure of the LCS fishery 

in this region will cost fishermen a lot 

of money. The effect on the commercial 

shark business is that some vessels will 

go into bankruptcy. NMFS’ statements 

of ‘‘no significant impacts’’ regarding 

the collective impact of these actions 

has no bearing on reality. 

Response: NMFS realizes that there 

are few participants in HMS fisheries 

that depend solely on the species under 

the purview of the HMS Management 

Division. Shark fishermen participants 

also target reef fish, snapper/grouper, 

mackerel, and golden tilefish either on 

the same trip or at different times of the 

year. Pelagic longline fishermen target 

swordfish and tunas in addition to 

dolphin and/or wahoo. Current 

regulations state that if overharvests of 

LCS or SCS occur, these overharvests 

must be taken into consideration when 

establishing subsequent years’ quota for 

that trimester. In the analyses that 

established these regulations, NMFS 

took into account the fact that few, if 

any, HMS fishermen rely solely on HMS 

fish and that closures and opening of 

other fisheries affect whether or not 

HMS fishermen will fish for HMS 

species. This current rulemaking 

attempts to provide fishermen with 

every opportunity to catch LCS and SCS 

while maintaining consistency with 

existing regulations and preventing 

overfishing of managed species. NMFS 

is also working on methods to improve 

fishery management on a more 

ecosystem-based level. In regard to the 

statement regarding ‘‘no significant 

impact,’’ NMFS did not state in the 

proposed rule that the proposed actions 

would have no significant impact on a 

substantial number of small entities. 

Rather, NMFS conducted an Initial 

Regulatory Flexibility Analysis (IRFA) 

consistent with the Regulatory 

Flexibility Act. While NMFS received 

several comments regarding the 

potential economic impacts of the 

proposed rule, NMFS did not receive 

any comments specific to the IRFA. 

Nonetheless, NMFS considered the 

economic impacts and conducted a 

FRFA for the final rule portion of this 

action. A summary of the FRFA is 

provided below in the Classification 

section. 

Comment 3: The ultimate solution for 

the participants in the shark fishery and 

for fisheries management is the 

implementation of individual fishing 

quotas (IFQs). All of the serious shark 

fishermen that I am in contact with 

would support IFQs. Allocation could 

be related to catch history. They would 

be willing to pay for observers if 

necessary. This would allow the 

fishermen to fish when the sharks are 

there and when the market is right and 

when it did not conflict with other 

fisheries. 

Response: NMFS agrees that 

implementation of IFQs could be 

beneficial for both fishermen and the 

resource. However, implementation of 

IFQs will take several years as NMFS 

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Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 75125 

and fishermen would need to devise a 

program that would split the quota 

among participants in a equitable and 

appropriate manner. The development 

of such a program would also likely 

require an Environmental Impact 

Statement (EIS) and is beyond the scope 

of this rulemaking, which was only 

meant to establish season lengths and 

quotas for the first season of 2007, 

consistent with existing regulations. As 

stated in previous documents, NMFS 

would like to review the existing HMS 

commercial permit structure in the near 

future. Such a review could include 

IFQs as a potential solution to some of 

the problems in the current permit 

structure. 

Comment 4: The economic impacts of 

closing the South Atlantic region are 

more likely neutral because the 

fishermen harvested 230 percent of the 

region’s trimester quota in 2006, so they 

attained the economic benefits already. 

Response: While fishermen received 

greater revenues in the first trimester of 

2006 resulting from the overharvest, 

those economic benefits would not 

likely address the future cash flow 

issues that fishing operations may face 

in the future due to extended closures. 

The economic impacts of closing the 

South Atlantic region would likely 

include decreases in employment, 

financing costs to cover fixed costs, 

difficulty covering fixed costs, and 

potential negative cash flows that could 

result in business failures of marginal 

operators. In addition, the lack of LCS 

supply to South Atlantic dealers during 

this period would potentially impact 

those dealers’ ability to meet the 

demands of their customers for 

prolonged periods potentially resulting 

in lost clients as buyers shift their 

demand to other regions. Finally, 

shoreside support businesses would 

also likely receive lower demands for 

gear, fuel, and other services if the 

closures result in less fishing activity by 

affected vessels. 

Comment 5: The negative economic 

impacts were underestimated, the South 

Atlantic is closed for LCS in October, 

meaning the South Atlantic will 

experience a 10 month closure of this 

fishery and not just 6 months as stated. 

Response: NMFS acknowledges that 

the South Atlantic will in fact 

experience a closure in the South 

Atlantic region for LCS that, in total, is 

longer than six months. The analysis for 

previous rules accounted for the closure 

period at the end of 2006. As such, 

technically, the scope of analysis for 

this particular rulemaking starts on 

January 1, 2007, and the baseline for 

analysis in this rule already factors in 

the closure period at the end of 2006. 

However, NMFS takes prior closures 

and potential future closures into 

consideration when determining the 

type of management actions to 

implement. Thus, in this rulemaking, 

NMFS is opening the entire South 

Atlantic region, including the MidAtlantic shark closed area, for the 

month of July, pending available quota, 

to ensure that all fishermen in the South 

Atlantic region have the same 

opportunity to fish in their region in the 

second season of 2007. This action is 

being taken after considering the 

impacts of a long closure on the region 

(October 3, 2006, to July 2007), the 

potential for a longer closure or short 

2nd season given the overharvest in the 

second season of 2006, and closures in 

other fisheries. 

Comment 6: Alternative 5, transfer the 

LCS underharvest from the Gulf of 

Mexico’s first trimester of 2006 to the 

South Atlantic first trimester of 2007 is 

preferable because it would provide 

some economic benefits for the shark 

fishery in case it is phased out. 

Response: Alternative 5 would have 

distributed a portion of the originally 

anticipated LCS underharvest from the 

Gulf of Mexico’s landings from the first 

trimester of 2006 to the South Atlantic 

first trimester of 2007, thus providing 

for a first trimester season for 2007 in 

the South Atlantic. While this 

alternative would have provided some 

revenue generating opportunities in the 

South Atlantic, this alternative was not 

selected as it would not account for the 

overharvest experienced in the South 

Atlantic region during the first trimester 

of 2006, resulting in additional fishing 

mortality in 2007 and negative 

ecological impacts as a consequence. 

Furthermore, the potential exists for the 

South Atlantic region to exceed its 2007 

first trimester quota, exacerbating future 

potential economic and ecological 

impacts as a result. 

Revised 2006 first trimester harvest 

numbers now indicate that the Gulf of 

Mexico’s landing from the first trimester 

resulted in an overharvest of 113.9 mt 

of LCS. Therefore, a quota transfer from 

the Gulf of Mexico region to the South 

Atlantic region for the 2007 first 

trimester no longer exists, and therefore 

this alternative was not considered in 

the final rule and EA. 

B. Quota Monitoring and Trimester 

Seasons 

Comment 7: NMFS received several 

comments, including one from the State 

of North Carolina, regarding the 

mechanisms for reporting and quota 

monitoring, including: the Agency 

needs real-time quota monitoring to 

prevent this from happening in the 

future; and quotas for sharks should be 

like they are for flounder - you should 

be allowed to go fishing wherever you 

want and allow fishermen to land fish 

even when the season is closed; NMFS 

should develop some additional 

transparency on the data collection; and 

NMFS should look for independent 

means to verify 2006 landings and 

investigate how long this situation has 

existed. 

Response: NMFS realizes there were 

problems with reporting shark dealer 

landings during the first trimester 

season of 2006. Several weeks after the 

publication of the proposed rule on 

October 2, 2006, NMFS became aware of 

extensive landings by several shark 

dealers that were not received by the 

Agency during the first trimester of 

2006. Incomplete or non-submitted data 

make it difficult for the Agency to 

effectively monitor quotas and establish 

future seasons based on these landings. 

Accordingly, NMFS is pursuing options 

to ensure that these issues do not occur 

in the future and to investigate problems 

that have occurred in the past. While 

implementation of real-time quota 

monitoring may be an effective 

substitute for the twice monthly 

reporting regime currently in place, 

such a system would still depend on 

shark dealers to submit their data in a 

timely manner and would require 

additional time and Agency resources 

that are beyond the objectives of this 

rulemaking. Similar to other fisheries, 

sharks need to be managed in a 

comprehensive way, including 

managing them through the use of time/ 

area closures and quotas. 

Comment 8: NMFS received several 

comments regarding quotas in general 

and the trimester seasons, including: 

quotas used to be beneficial and some 

regulation is a good thing, but trimester 

seasons are ineffective and semi-annual 

seasons are better; there are conflicts 

with the openings and closings of other 

fisheries with the trimester fishing 

seasons as currently configured; 

dividing the fishing year into two parts 

allowed for more flexibility and was 

more workable for the fishermen; and 

the Agency needs to re-evaluate how the 

quota that was transferred between the 

South Atlantic and Gulf of Mexico 

regions back in 2004; if the South 

Atlantic regional quota were at pretransfer levels, the overharvest may not 

have been as severe. 

Response: This rule will not address 

the trimester seasons or shark fishing 

regions that were established in 2003 

Amendment 1 to the 1999 FMP for 

Atlantic Tunas, Swordfish and Sharks, 

and the subsequent rulemaking 

(November 30, 2004, 69 FR 69537). 

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75126 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 

When NMFS first implemented the 

trimester seasons, NMFS thought the 

trimesters would provide fishermen 

with more fishing opportunities later in 

the year (September through December) 

when they were traditionally not 

allowed to fish under the semi-annual 

seasons and to protect large pregnant 

female sharks and their pups from 

excessive fishing pressure. Similarly, 

NMFS thought regional quota 

allocations would provide NMFS with 

the ability to manage each region in a 

manner that would benefit commercial 

shark fishing and fishermen in that 

region. Under the current regime, 

regions that did not experience an 

overharvest are not penalized by quota 

reductions for overharvests that may 

occur in the adjacent region. The 

November 30, 2004, rulemaking 

adjusted the regional quota allocations 

based on landings data that were more 

recent (through 2003) than the landings 

information analyzed for the 2003 

Amendment 1 to the 1999 FMP for 

Atlantic Tunas, Swordfish and Sharks 

(through 2001). These data indicated 

that landings in the Gulf of Mexico 

region had increased, and therefore, that 

region was given more quota. 

Effectively, this resulted in an 11 

percent adjustment between the Gulf of 

Mexico and South Atlantic region for 

LCS. Had this adjustment not been 

initiated, the South Atlantic region 

would have still experienced an LCS 

overharvest in the first trimester of 2006 

large enough to warrant a closure of the 

fishery, and the Gulf of Mexico region 

would also have had a larger 

overharvest. NMFS will likely reexamine trimester and regional quotas 

in the amendment to the Consolidated 

HMS FMP. 

Comment 9: Carrying forward 

underharvests does not seem like a good 

idea. The Agency should only carry 

underharvests over for a year. Anymore 

than that does not make any sense. It 

could allow the quota to get too high. 

Eventually the base quota becomes 

meaningless. 

Response: This rulemaking did not 

consider modifications to the existing 

regulations for adjustment of subsequent 

quotas based on over- or underharvests 

that occur in a given trimester season 

and region. In addition, underharvests is 

only a major issue for SCS and the first 

trimester in the North Atlantic region 

for LCS. NMFS will be conducting a 

stock assessment for SCS in 2007, at 

which time NMFS can evaluate the 

effect of recent carry overs on SCS 

populations. NMFS agrees that carrying 

substantial underharvest forward every 

year could allow the quota to get too 

high and could have negative ecological 

impacts if the entire adjusted quota is 

taken in one year. However, carrying 

forward smaller underharvests provides 

fishermen with additional fishing 

opportunities in the future, especially in 

circumstances where the fishermen 

were not able to catch their quota 

because of factors outside their control 

(i.e., hurricanes, oceanographic 

conditions, etc.). Similarly, removing 

overharvests from the next year’s 

trimester ensures that overfishing does 

not occur and fisheries are managed at 

quota levels that are consistent with the 

most recent stock assessment and 

corresponding optimum (OY) or 

maximum sustained yield (MSY). The 

issue of substantial underharvests for 

bluefin tuna was recently addressed in 

the Consolidated HMS FMP where no 

more than the 100 percent of the 

baseline allocation can be carried 

forward. Similar measures could be 

addressed for sharks in the upcoming 

amendment. 

Comment 10: NMFS received 

numerous comments expressing 

concern about the landings for large 

coastal sharks, including: why did the 

South Atlantic exceed their quota by so 

much?; the reported landings for the 

South Atlantic region do not make sense 

because most of the boats fishing for 

shark are based in the Gulf of Mexico 

and most of the effort is in that region; 

landings reported in Key West should 

be carefully analyzed because this port 

is unique in that boats can fish either 

the Gulf of Mexico or South Atlantic 

and land in Key West; and errors in 

reporting areas fished can influence the 

decision making process in a way that 

is potentially unfair to one region or 

another. 

Response: The original proposed rule 

that was published on October 5, 2006, 

was based on landings reports that had 

been received through August 24, 2006. 

Due to the extensive overharvest of LCS 

in the South Atlantic region, the original 

dealer reports were scrutinized to 

ensure that there were no landings, 

including the ones in Key West, 

mistakenly attributed to the South 

Atlantic region’s quota. In mid-October, 

NMFS received information that 

indicated that the August 24, 2006, 

landings data were incomplete because 

they did not include all the shark dealer 

landings for the first trimester of 2006. 

Landings reports that had not 

previously been received by the Agency 

were received and drastically modified 

the estimated landings for LCS in the 

Gulf of Mexico and South Atlantic 

regions and SCS in the Gulf of Mexico 

region that the proposed rule was based 

upon. Additionally, the Agency 

examined other data sources to identify 

dealers that were reporting shark 

landings via other reporting 

requirements. 

Errors in reporting, late reporting, and 

no reporting are unfair to fishermen in 

all regions who rely on the Agency’s 

quota monitoring to make decisions on 

whether or not they should or can fish 

for sharks. As described in the response 

to comment 7, the Agency is taking 

steps to ensure it will not happen again. 

C. Season Lengths 

Comment 11: NMFS received several 

comments on opening the second 

trimester in May, including: it was my 

hope when we switched to regional 

quotas that the Gulf of Mexico would be 

open in May, which would benefit the 

Gulf of Mexico and the South Atlantic 

by creating a year round market for 

sharks; when everyone opens at the 

same time you glut the market and we 

have fish in the Gulf of Mexico in May; 

and, is it possible to open the second 

trimester season in May in the South 

Atlantic as a result of the extensive 

period of time that region is proposed to 

be closed? 

Response: The rulemaking did not 

evaluate quotas and season lengths for 

the second trimester of 2007. These 

measures will be addressed in a 

subsequent rulemaking once more 

landings data are available for the 2006 

second and third trimester seasons. 

Traditionally, shark fishing in the 

second trimester begins in July to avoid 

concerns regarding pupping seasons for 

various species in the Gulf of Mexico 

and South Atlantic regions and to avoid 

conflicts with the fourth of July food 

markets. Opening the second trimester 

in May might be an option for 

consideration for the Gulf of Mexico 

region. However, given the decision to 

open the mid-Atlantic shark closed area 

in July, pending available quota, it is 

unlikely the South Atlantic region 

would open earlier than July for the 

second season. 

D. Quota Transfer 

Comment 12: NMFS received 

comments for and against transferring 

LCS quota from the Gulf of Mexico 

region to the South Atlantic region, 

including: any opening of the first 

trimester South Atlantic fishery would 

be better than nothing. Whether the 

quota allocation is transferred from the 

Gulf of Mexico or otherwise justified, it 

would be a welcome alternative to tying 

up the boats. Perhaps it could begin 

February 1, 2007, when the migration in 

the South Atlantic is well underway; I 

am concerned about shifting blacktip 

quota from the Gulf of Mexico region to 

the South Atlantic region because these 

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are unique populations of blacktip 

sharks, furthermore, since the 2006 LCS 

assessment stated that the population 

status of blacktip sharks in the South 

Atlantic is unknown, fishing pressure in 

that region should not be increased; 

Alternative 5, a one year, one time 120 

mt dw transfer, will not make much 

difference; I support a one-time transfer 

of quota from the Gulf of Mexico region 

to the South Atlantic region; the State of 

Louisiana opposes reallocation of Gulf 

of Mexico quota to the South Atlantic 

region because the underharvest that 

occurred during the first trimester of 

2006 was a result of the hurricane 

season of 2005, and underharvests in 

other fisheries have also taken place; 

and transferring quotas appears to 

provide economic benefit for fishermen 

but provides no conservation benefit to 

species. 

Response: The Agency is aware of the 

economic consequences of closing the 

South Atlantic region to LCS fishing 

during the first trimester of 2007. An 

alternative that would transfer 

underharvest from the Gulf of Mexico 

region to the South Atlantic region was 

considered in the proposed rule 

(October 5, 2006; 71 FR 58778). As a 

result of revised landings estimates, 

which indicate that the Gulf of Mexico 

no longer has underharvest to transfer, 

this is no longer a viable alternative. 

Overharvests experienced by the South 

Atlantic region (278 percent) and the 

Gulf of Mexico (151 percent) limit the 

viable options available for the first 

trimester 2006 LCS fisheries, while not 

resulting in overfishing. As such, LCS 

quota transfers, as outlined in the 

proposed rule alternatives 1, 2, and 5, 

will no longer be considered in this rule 

making. 

Under the preferred alternative, 

alternative B2, during the 2007 first 

trimester, the Gulf of Mexico region will 

receive a quota transfer of 63.2 mt dw 

from the South Atlantic’s regional SCS 

underharvest in 2006. Unlike LCS 

populations, SCS are not thought to 

exhibit population structure between 

the Atlantic and Gulf of Mexico basins. 

In addition, SCS quotas for each region 

were based on historical landings, and 

the trimester quotas were based on 

public comment, and the catch 

composition of SCS are similar among 

the two regions. Therefore, the 

ecological impacts of reallocating SCS 

quota from one region to another would 

most likely be minimal, and would 

allow fishermen in the Gulf of Mexico 

region a SCS fishery in the first 

trimester of 2007 that would otherwise 

not be possible. 

Comment 13: The State of Louisiana 

submitted a comment stating concern 

over the proposed open season for LCS 

and the fact that this will conflict with 

a state imposed shark closure in 

Louisiana water that exists between 

April 1 and June 30 each year. 

Response: As a result of revised 

landings estimates, the Gulf of Mexico 

region no longer has an underharvest of 

LCS. As such, the season in the Gulf of 

Mexico will only last two weeks in the 

beginning of January, and there should 

no longer be conflicts with the closure 

in Louisiana state waters. 

E. Preferred Alternative A2 (formerly 

alternative 3) 

Comment 14: NMFS received several 

comments in support of the preferred 

alternative, to close the entire South 

Atlantic region for LCS during the first 

trimester of 2007, and open the entire 

South Atlantic region, including the 

mid-Atlantic shark closed area in July 

2007, pending availability of quota, 

including: I find the preferred 

alternative in the proposed rule to be 

the most acceptable option offered by 

NMFS because transferring overharvest 

and underharvest between regions 

makes no biological sense given the 

current LCS status; closing the South 

Atlantic region until July is justified 

given the overharvest in the first 

trimester of 2006, and will help to 

protect pregnant female sandbar sharks 

along the Atlantic coast; and the 

preferred alternative would be good for 

the Gulf of Mexico region because we 

would have single access to the LCS. 

The market would not be flooded in 

January as it usually is. 

Response: The preferred alternatives 

have changed since the October 5, 2006, 

rulemaking as a result of revised 

landings data received after the 

proposed rule had published. These 

data indicate an overharvest for LCS in 

the Gulf of Mexico during the first 

trimester of 2006, which will result in 

the Gulf of Mexico having a two-week 

LCS season instead of the full trimester 

as proposed. The transfer of quota from 

the Gulf of Mexico region is no longer 

an option. The preferred alternatives 

account for overharvests in the LCS and 

SCS fisheries while providing 

additional fishing opportunities to offset 

the negative ecological impacts of a six 

month closure in the South Atlantic 

region. 

Comment 15: NMFS received several 

comments opposing the preferred 

alternative and that NMFS should 

reverse course and further protect 

depleted populations of these shark 

species. 

Response: In light of the extensive 

overharvest of LCS that occurred in the 

South Atlantic during the first trimester 

of 2006, NMFS has preferred to close 

the LCS fishery for six months, and 

NMFS is opening the mid-Atlantic shark 

closed area in July, pending available 

quota. This time period for a closure of 

the entire South Atlantic region 

encompasses the entire first trimester 

season of 2007 plus two additional 

months (May and June). While this 

opening will allow for some limited 

fishing, it will not cause further harm to 

the species. NMFS realizes that the 

ecological impacts of this alternative 

would be neutral or slightly negative; 

however, as described in the EA, this 

alternative is the best balance of all the 

factors (social, economic, and 

ecological) that the Agency must 

consider during a rulemaking. 

F. Mid-Atlantic Shark Closed Area 

Comment 16: NMFS received 

numerous comments expressing 

concern about reopening the midAtlantic shark closed area in July 2007 

depending upon availability of quota for 

that region and trimester, including: I 

question opening the mid-Atlantic shark 

closed area in July of 2007, this may be 

balanced by a larger closure (South 

Atlantic wide) January through June, 

however, the closed area was closed for 

a reason; the Agency needs to ensure 

that there are no adverse ecological 

impacts as a result of opening the mid 

Atlantic shark closed area; what is the 

ecological value of the closed area off 

North Carolina?; the benefits of 

reopening a closed area need to be 

weighed against the fact that this may 

set a precedent for opening other closed 

areas; what will the ecological impacts 

be of opening the closed area?; why 

would you not need an EIS to modify 

the closed area since an EIS was 

required to implement the closure?; the 

EA provides dubious justification for 

the assertions that it met Council of 

Environmental Quality (CEQ) context 

and intensity criteria that actions taken 

will not significantly jeopardize the 

sustainability of target and non-target 

species. The EA stated that NMFS does 

not know the extent of the impact; what 

does the BLL closed area have to do 

with any of this, the overharvest was for 

the entire region not just the midAtlantic closed area; the mid-Atlantic 

shark closed area raises National 

Standard 4 issues; the majority of the 

HMS advisory panel (AP) stated at the 

October 2006 meeting, that the proposal 

to relax the time area closure was 

without merit; and, everyone should 

consider the ramifications of North 

Carolina closing its state waters. 

Response: The mid-Atlantic shark 

closed area is of ecological value as both 

an area of high localized density of 

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sandbar and dusky sharks and as a 

Habitat Area of Particular Concern 

(HAPC) as an important nursery and 

pupping ground for these species. 

Although this time/area closure is of 

limited geographic extent, it was 

established for ecological reasons, not to 

discriminate against any particular 

region or user group as prohibited under 

National Standard 4. Comparing 

landings reported in the Coastal 

Fisheries logbooks from the South 

Atlantic region between 2002–2004 

(without closed area) with 2005 (with 

closed area) indicates that landings of 

LCS decreased by 22.3 percent after 

implementation of the mid-Atlantic 

shark closed area. Landings of sandbar 

sharks in the South Atlantic region 

decreased by 26.7 percent in 2005 

compared to 2002–2004, which could 

have been a result of the mid-Atlantic 

shark closed area. Specific to the month 

of July in the South Atlantic region, 

landings of LCS and sandbar sharks 

have decreased by 9.7 and 18 percent, 

respectively. The Agency only has one 

year of logbook data (2005) since the 

implementation of the closure, 

therefore, it is difficult to discern 

exactly what the actual ecological 

impacts of opening the closure for an 

additional month in 2007 would be. 

Overall ecological impacts of the 

preferred alternative, which includes 

opening the closed area for one month, 

is expected to be neutral or slightly 

negative. While the quota overage that 

occurred in 2006 must be accounted for 

ecologically, NMFS must consider the 

social and economic repercussions of 

such actions. As described below in the 

response to comment 17, the preferred 

alternative is the best balance of these 

interests. NMFS feels that the potential 

negative ecological impact of opening 

the mid-Atlantic shark closed area for a 

portion of the month of July 2007 would 

be minor, particularly compared to the 

potential economic and social impacts 

to fishermen and communities that rely 

on the area if the area remains closed. 

In regard to the statement about 

conducting an EIS to open the closed 

area, the Agency must consider 

numerous factors in determining the 

NEPA action required. In this case, the 

Agency determined that an EIS is not 

necessary for the action regarding 

opening the closed area in part because, 

given the limited size and magnitude of 

this one time, one month opening of the 

mid-Atlantic closed area, NMFS does 

not anticipate significant effects 

individually or cumulatively on the 

environment. Nor does NMFS consider 

this action to be a major action. An EIS 

would be more likely if the Agency were 

more permanent or lengthy changes to 

the closed area. Additionally, the LCS 

overharvest that occurred in the South 

Atlantic in 2006 was unique, and 

occurred just prior to the release of a 

new LCS stock assessment report. The 

results of the stock assessment will most 

likely lead to modifications to the 

current structure of shark management 

in the Atlantic, making it very unlikely 

that a precedent would be set by this 

action. Given the results of the recent 

stock assessment, NMFS intends to take 

a more species-specific approach, 

compared to the current approach based 

on the complex as a whole, to managing 

sharks based on the individual stock 

assessments of LCS, sandbar, dusky, and 

porbeagle sharks. Thus, given the 

changes likely in shark management in 

the near future, this action is likely not 

precedent setting and likely will not be 

repeated. 

Comment 17: NMFS also received a 

number of comments regarding the 

effects of the time area closure, 

specifically on sandbar and dusky 

sharks including: the closed area is for 

pups of dusky and sandbar sharks, given 

the assessment for sandbars, why are 

you opening up the closed area?; it is 

just a month reopening, but these stocks 

are in bad shape; sandbar and dusky 

assessments underscore the need for 

highly protective management measures 

to ensure that dusky sharks do not slip 

further towards extinction; NMFS 

should act now to strengthen 

conservation measures for dusky and 

sandbar sharks; NMFS should not open 

the mid-Atlantic time area closure 

because it is designed to protect juvenile 

sandbar sharks (they need 70 years to 

rebuild); the EA admits that the change 

would increase fishing mortality on 

dusky and sandbar sharks but it does 

not quantify the extent to which 

mortality will increase; NMFS admits an 

18–percent reduction in sandbar shark 

landings as a result of the mid Atlantic 

closure before and after the closure was 

established; the EA dismissed the 

impact of the additional fishing 

mortality on sandbar and dusky sharks 

as a result of opening the mid Atlantic 

time area closure; the prohibited status 

of dusky sharks alone has not improved 

the status of dusky sharks, therefore, 

time area closure is also necessary; is 

the closed area part of the existing 

provisions of the rebuilding timeframe 

for sandbar sharks?; EA is vague about 

the impacts of proposed action on 

individual shark species; some of the 

species are likely to be 

disproportionately affected by the 

proposed actions; it is clearly 

inappropriate to manage sharks by 

multi-species complexes; would any 

good data be available as a result of 

opening the closed area; NMFS needs to 

ensure that observers are present 

onboard vessels that fish in July in the 

mid-Atlantic shark closed area in order 

to get data regarding landings and 

bycatch; this closed area has caused a 

great deal of controversy since its 

inception, opening for a short time 

period may provide some good data and 

determine whether or not the 

controversy initiated by the closure has 

been worthwhile; and closed area off a 

single jurisdiction should be eliminated 

from consideration, and trip limits and 

quotas are far more fair and equitable 

management tools. 

Response: Alternative A2, the 

preferred alternative, would close the 

South Atlantic region to LCS fishing 

during the first trimester of 2007 and 

open the mid-Atlantic shark closed area 

in July 2007. The mid-Atlantic shark 

closed area was implemented to protect 

neonate and juvenile dusky and sandbar 

sharks by reducing discards and 

preventing bycatch of prohibited species 

during January through July. The 

Agency’s decision to open the midAtlantic shark closed area in July, 

depending on available quota, is based 

on the realization that the LCS fishery 

in the South Atlantic region will 

experience a closure from the 

conclusion of the 2006 third trimester 

season (October 3, 2007) until July 1, 

2007, or nine months. Historically, the 

second semi-annual or trimester season 

has opened in July. The opening of this 

closed area depends on the level of 

overharvest in the second trimester of 

2006 in the South Atlantic region. 

Current landings estimates indicate the 

South Atlantic region landed 135.5 

percent (205.5 mt dw) of their 2006 

second trimester quota (151.7 mt dw) 

(November 13, 2006, 71 FR 66154); 

given this overharvest, the second 

season may not be open as long as in 

previous years, and may only occur for 

a few weeks in July 2007. If NMFS does 

not consider opening the mid-Atlantic 

shark closed area during a portion of the 

month of July 2007, then depending on 

the start date of the 2007 second 

trimester in the South Atlantic region, 

fishermen that normally fish in the 

closed area would not have an LCS 

fishery in Federal waters until 

September 2007, when the third LCS 

season traditionally opens, unless they 

moved to another area. This is 

equivalent of an 11 month LCS fishery 

closure in that area. Meanwhile, other 

areas in the South Atlantic region would 

have a fishery in July 2007, which 

would be the start of the second 

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trimester season. Thus, this opening 

may result in increased opportunity 

between fishery participants in the 

vicinity of the mid-Atlantic shark closed 

area and those in other portions of the 

South Atlantic region. Therefore, given 

the limited opening of the area and the 

amount of time the South Atlantic 

region will be closed (October 2006 to 

at least July 2007), NMFS feels that the 

potential negative ecological impact of 

opening the mid-Atlantic shark closed 

area for a portion of July 2007 would be 

minor. 

The ecological impacts of this 

alternative are similar to alternative A1, 

with the exception of the impacts of 

opening the mid-Atlantic shark closed 

area. NMFS does anticipate that opening 

the closure for a portion of the month 

of July will potentially increase dead 

discards of dusky and sandbar sharks 

compared to maintaining the closure 

through July. However, under the 

existing rebuilding plan, the numbers of 

dead discards that may occur as a result 

of opening this area in for one month 

are anticipated to be minor. It is 

anticipated the number of neonates and 

juveniles affected by opening the 

closure during a portion of July will be 

relatively minor, especially since no 

fishing in the entire South Atlantic 

region will occur between January 

through June, a time during which 

pregnant females and neonate sandbar 

sharks begin to pup off the coast of 

Florida and dusky sharks start to pup 

between South Carolina and Maryland 

(NMFS, 2003). 

According to the analyses in the 2003 

Amendment 1 to the 1999 FMP Atlantic 

Tunas, Swordfish, and Sharks, over 80 

percent of all dusky sharks observed 

caught in the Atlantic were caught in 

January through June. Of those dusky 

sharks observed caught in the closed 

area, 86 percent were caught from 

January through June. In July, the 

number of dusky sharks observed in the 

closed was less than 13 percent of all 

dusky sharks observed throughout the 

year. The highest catches occurred 

during the months of January and 

March. Similarly, approximately 70 

percent of all sandbars observed caught 

in the Atlantic were caught in January 

through June and 81 percent were 

observed caught in the closed area from 

January through June. For sandbar 

sharks, 18 percent were observed caught 

in the closed area in July, with the 

month of January having the highest 

catches. Thus, opening the closed area 

for a portion of July would help mitigate 

the economic hardships in this region 

while potentially creating minor 

negative ecological impacts due the lack 

of a LCS fishery in the 2007 first 

trimester in the entire South Atlantic 

region. 

As described above in the response to 

comment 16, data indicate that landings 

of LCS decreased by 22.3 percent after 

implementation of the mid-Atlantic 

shark closed area and landings of 

sandbar sharks in the South Atlantic 

region decreased by 26.7 percent in 

2005 compared to 2002–2004. Specific 

to the month of July in the South 

Atlantic region, landings of LCS and 

sandbar sharks have decreased by 9.7 

and 18 percent, respectively. These 

reductions could have been due to the 

implementation of the closed area. Data 

also indicate that only 6 percent of the 

effort (i.e., number of hooks) occurred in 

the closed area for the month of July 

compared to the rest of the Atlantic 

throughout the year (NMFS, 2003). 

However, given that the Agency only 

has one year of logbook data (2005) 

since the implementation of the closure, 

therefore, it is difficult to discern 

exactly what the actual ecological 

impacts of opening the closure for an 

additional month in 2007 would be. 

Nonetheless, the Agency feels that the 

ecological impacts of opening the 

closure for one month would be neutral 

or slightly negative. 

Currently, vessels are randomly 

selected to carry observers; however, 

NMFS agrees that valuable information 

could be retrieved during the one month 

opening. As such, NMFS is investigating 

its ability (e.g., available resources) to 

increase observer coverage in that area 

and time and the information that could 

be collected (including the possibility of 

placing pop-up archival satellite tags on 

released animals). NMFS will let 

affected fishermen know of any changes 

in observer coverage, as appropriate. 

G. General Comments 

Comment 18: The failure to land the 

quota for porbeagle sharks is likely a 

testament to the scarcity of porbeagles. 

Canadian porbeagles are to be listed as 

endangered under their Species Risk 

Act, and the International Union for the 

Conservation of Nature (IUCN) has also 

listed porbeagles as endangered. NMFS 

has recently placed them on the Species 

of Concern list. In doing so, NMFS 

acknowledged that only approximately 

15 percent of the porbeagle population 

is estimated to be mature breeding 

females. NMFS should revoke the quota 

for porbeagles and add them to the 

Prohibited Species category. 

Response: Only 0.5 mt dw of the 

porbeagle 2006 first trimester quota was 

landed for all regions. NMFS does not 

expect an increase in fishing pressure 

on porbeagle sharks during 2007 as 

fishermen that catch porbeagles as 

bycatch prefer to target swordfish and 

tuna (i.e., they are not targeting 

porbeagles) since swordfish and tuna 

meat have higher market values. 

However, due to the overfished status of 

this species (November 7, 2006; 71 FR 

65086), NMFS will develop a rebuilding 

plan for porbeagles in the upcoming 

amendment to the Consolidated HMS 

FMP. Any necessary changes in 

porbeagle quota will be considered at 

that time. 

Comment 19: Shark quotas have been 

too small, and the shark science is 

incorrect; my catches have been 

increasing even though the seasons have 

been shortened. Why are our quotas still 

being reduced?; and with some 

rebuilding times measured in hundreds 

of years, what is the Agency’s intention 

in terms of maintaining a viable fishery? 

Response: The current LCS quotas 

were established in accordance with the 

2002 LCS stock assessment and 

implemented by the 2003 Amendment 

to the 1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks. Any changes to 

these quotas, based on the 2005/2006 

LCS stock assessment, 2005 porbeagle 

shark assessment, and 2006 dusky shark 

assessment will be done in an 

amendment to the 2006 Consolidated 

HMS FMP. While an individual 

fisherman’s catches may have increased 

during different periods of time, the 

stock assessments indicated that the 

overall catch rates for most species 

individually assessed (except for the 

Gulf of Mexico blacktip sharks) are on 

the decline. In the 2002 assessment, LCS 

were overfished with overfishing 

occurring and sandbar sharks had 

overfishing occurring. Based on the 

current assessments, sandbar, and dusky 

sharks have been determined to be 

overfished with overfishing occurring, 

and porbeagle sharks have overfishing 

occurring. As such, NMFS has adjusted 

quotas, and will continue to adjust 

quotas for these species, as appropriate, 

to rebuild these stocks and end 

overfishing. As part of these 

adjustments, NMFS will consider 

commercial and recreational 

management measures that will provide 

some level of commercial and 

recreational fishing as well as the 

opportunity to rebuild the resource. 

Comment 20: The sandbar shark 

assessment changed dramatically from 

the last assessment, primarily as a result 

of the maturity ogives. There is 

significant concern surrounding this 

change and a formal review of the data 

needs to be accomplished before new 

measures are proposed. Additionally, 

continued citation of the dusky shark 

assessment that has been neither peermstockstill on PROD1PC61 with RULES

75130 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 

reviewed nor based on an accepted 

modeling technique is premature. 

Response: The maturity ogives used 

in the 2006 sandbar shark assessment 

were based on the best available science 

for sandbar sharks. The current LCS 

stock assessment, including the blacktip 

and sandbar sharks assessments, were 

conducted under the Southeast Data and 

Review (SEDAR) process. During the 

peer review process of the assessment, 

the reviewers requested analyses using 

the maturity ogive from the 2002 stock 

assessment. The result of that sensitivity 

analysis was similar to the result using 

the updated ogive. The dusky shark 

assessment was started in 2002, before 

the SEDAR process was initiated. This 

assessment was done at the request of 

the industry and others, who wanted 

more species-specific assessments 

conducted. The modeling techniques 

used in this assessment are based on 

commonly accepted assessment 

practices that have been internally 

reviewed within the NMFS. In addition, 

staff members of the Southeast Fisheries 

Science Center that were involved in the 

2005/2006 LCS stock assessment, and 

are therefore familiar with appropriate 

stock assessment approaches, conducted 

the dusky shark assessment. Therefore, 

this assessment constitutes the best 

available science for dusky sharks. 

Changes From the Proposed Rule 

NMFS has made several changes from 

the October 5, 2006, proposed rule (71 

FR 58778) regarding the Gulf of 

Mexico’s regional SCS and LCS quotas 

and LCS season and the South Atlantic’s 

regional SCS quotas. These changes are 

outlined below. The proposed 

management measures for the North 

Atlantic regional LCS and SCS and 

South Atlantic regional LCS and pelagic 

sharks did not change. Similarly, the 

proposed measure to open the midAtlantic closure in the month of July, 

pending available quota, did not change. 

1. In the proposed rule, NMFS 

proposed that the Gulf of Mexico region 

would have a LCS quota of 295.8 mt dw. 

This proposal was based on landings 

estimates as of August 24, 2006. 

Updated landings estimates on 

November 13, 2006 (71 FR 66154), 

indicated that Gulf of Mexico region 

harvested 151.1 percent (336.6 mt dw) 

of their LCS quota during the first 

trimester of 2006. Thus, due to the 

additional landings reports and the 

overharvest of LCS in the Gulf of 

Mexico region during the 2006 

trimester, NMFS is adjusting the quota 

to 62.3 mt dw (176.1 mt dw regional and 

baseline quota – 113.8 mt dw 

overharvest). 

2. In the proposed rule, NMFS 

proposed that the Gulf of Mexico region 

would have a LCS season of January 1, 

2007, until April 30, 2007. As described 

in the proposed rule, this season length 

was based on calculations of the average 

catch rates from January through April 

during the first season in recent years 

(2003–2006) and the available quota. 

Because state landings during a Federal 

closure are counted against the quota, 

NMFS also considered the average 

amount of quota reported as received 

during the Federal closure dates of the 

years used to estimate catch rates. Based 

on revised landings estimates, the 

season length for the Gulf of Mexico 

region must be recalculated. 

Based on the average January LCS 

catch rates in recent years in the Gulf of 

Mexico region, NMFS calculates that 

approximately 91.6 percent of the 

available first trimester LCS quota (62.3 

mt dw) would likely be taken in two 

weeks, and 137.4 percent of the 

available LCS quota would likely be 

taken in three weeks. Dealer data also 

indicate that, on average, approximately 

4 mt dw of LCS has been reported 

received by dealers during a Federal 

closure. This is approximately 6.4 

percent of the available quota. If catch 

rates in 2007 are similar to the average 

catch rates from 2003 to 2006, 98 

percent (91.5 + 6.4 percent) of the first 

trimester quota could be caught in two 

weeks, and 144 percent (137.4 + 6.4) of 

the quota could be caught in three 

weeks. Thus, NMFS will open the 

fishery in the Gulf of Mexico region on 

January 1, 2007, and close the fishery on 

January 15, 2007 (two weeks). 

3. In the proposed rule, NMFS 

proposed that the Gulf of Mexico, South 

Atlantic, and North Atlantic regions 

would have SCS quotas of 24.9, 374.0, 

and 18.7 mt dw, respectively. This 

proposal was also based on landings 

estimates as of August 24, 2006. 

Updated landings estimates on 

November 13, 2006 (71 FR 66154), 

indicated that Gulf of Mexico region 

harvested 527 percent (78 mt dw) of 

their SCS quota during the first 

trimester of 2006. Meanwhile, the South 

and North Atlantic regions harvested 

44.5 and 0 mt dw, respectively, of their 

SCS quotas. Due to the additional 

landings reports, NMFS is allocating 

63.2 mt dw of the SCS underharvest in 

the South Atlantic region during the 

2006 first trimester to the Gulf of 

Mexico during the 2007 first trimester. 

This will result in a SCS quota of 15.1 

mt dw for the Gulf of Mexico region and 

307.3 mt dw of SCS quota in the South 

Atlantic region during the first trimester 

of 2007. Based on the underharvest in 

the 2006 first trimester (18.7 mt dw), the 

North Atlantic region will have a 2007 

first trimester SCS quota of 18.8 mt dw. 

Quotas for First Trimester 2007 

Pursuant to 50 CFR 635.27(b)(1)(iii) 

and (iv), the 2007 annual base landings 

quotas are 1,017 mt dw (2,242,078 lb 

dw) for LCS and 454 mt dw (1,000,888.4 

lb dw) for SCS. The 2007 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. This 

final and temporary rule for an 

emergency action does not change these 

overall base landings quotas. Table 2 

describes the quotas for LCS, SCS, and 

pelagic sharks for the various regions (if 

applicable) for the first trimester of 2007 

adjusted for over- and underharvests 

that occurred during the first trimester 

of 2006. 

Existing regulations do not allow 

underharvests of pelagic sharks to be 

carried forward to the next fishing 

management period. As of August 24, 

2006, approximately 20.3 mt dw had 

been reported landed in the 2006 first 

trimester fishing season in total for 

pelagic, blue, and porbeagle sharks 

combined. Thus, the pelagic shark quota 

does not need to be reduced consistent 

with the current regulations 50 CFR 

635.27(b)(1)(iv). The 2007 first trimester 

season quotas for pelagic, blue, and 

porbeagle sharks are 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 and Quotas 

for the First Trimester Season 2007 

The first trimester fishing season of 

the 2007 fishing year for SCS, pelagic 

sharks, blue sharks, and porbeagle 

sharks in the northwestern Atlantic 

Ocean, including the Gulf of Mexico 

and the Caribbean Sea, will open on 

January 1, 2007 (Table 2). When quotas 

are projected to be reached for the SCS, 

pelagic, blue, or porbeagle sharks, the 

Assistant Administrator (AA) will file 

notification of closures at the Office of 

the Federal Register at least 14 days 

before the effective date, consistent with 

50 CFR 635.28(b)(2). 

Pursuant to 50 CFR 635.5(b)(1), shark 

dealers must report any sharks received 

twice a month. More specifically, sharks 

received between the first and 15th of 

every month must be reported to NMFS 

by the 25th of that same month and 

those received between the 16th and the 

end of the month must be reported to 

NMFS by the 10th of the following 

month. Thus, in order to provide 

consistency and predictability in 

managing the fishery, NMFS aims to 

close the Federal LCS fishery on either 

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Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 75131 

the 15th or the last day of any given 

month. 

Final Opening and Closing Dates and 

Quotas 

Final opening and closing dates for 

the 2007 first trimester season, by region 

and species group, are provided in 

Table 2. 

TABLE 2. SEASONS AND QUOTAS FOR LCS, SCS, AND PELAGIC SHARKS FOR THE FIRST TRIMESTER OF 2007. ALL

QUOTAS AND LANDINGS ARE DRESSED WEIGHT, IN METRIC TONS, UNLESS SPECIFIED OTHERWISE. 

First Trimester Season 2007 

Species Group (Annual 

Quota) Region (Allocation) Opening Date Closure Date Quota Rule Type 

Large Coastal Sharks 

(1,017) 

Gulf of Mexico (52 %) January 1, 2007 January 15, 2007, 

11:30 p.m. local 

time 

62.3 (137,347 lb 

dw) 

Temp. rule for 

emergency action 

South Atlantic (41 %) Closed Entire Season -112.9 (248,899 lb 

dw) 

Final Rule 

North Atlantic (7 %) January 1, 2007 April 30, 2007, 

11:30 p.m. local 

time 

7.9 (17,416 lb dw) Final Rule 

Small Coastal Sharks (454) Gulf of Mexico (10 %) January 1, 2007 To be determined, 

as necessary 

15.1 (33,289 lb 

dw) 

Temp. rule for 

emergency action 

South Atlantic (87 %) 308.4 (679,899 lb 

dw) 

Temporary rule for 

emergency action 

North Atlantic (3 %) 18.8 (41,446 lb 

dw) 

Final Rule 

Blue Sharks (273) No regional quotas January 1, 2007 To be determined, 

as necessary 

91 (200,619 lb dw) Final Rule 

Porbeagle sharks (92) 30.7 (67,681 lb 

dw) 

Final Rule 

Pelagic Sharks other than 

porbeagle or blue (488) 

162.7 (358,688 lb 

dw) 

Final Rule 

Comment Period 

NMFS is accepting comments on the 

temporary rule for emergency action 

portion of this action through February 

12, 2007. 

Classification 

NMFS has determined that this action 

is consistent with section 304(c)(6) of 

the Magnuson-Stevens Act, including 

the national standards, and other 

applicable law. The emergency actions 

are published under the authority of 

Section 305(c) of the Magnuson-Stevens 

Act. 

Under 5 U.S.C. 553(b)(5), the 

Assistant Administrator finds good 

cause to waive prior notice and 

opportunity for public comments on the 

emergency portion of this action as such 

prior notice and opportunity for public 

comment is impracticable and contrary 

to the public interest. 

Prior notice and opportunity for 

public comment is impracticable and 

contrary to the public interest because it 

would prevent NMFS from taking 

immediate action to stem the 

overharvest of LCS and SCS in the Gulf 

of Mexico region in the 2006 first 

trimester. NMFS was not aware of these 

overharvests until the end of October 

2006 and did not have definitive 

estimates of landings until midNovember 2006. As the fishing season 

for LCS and SCS opens on January 1, 

2007, NMFS has insufficient time to 

allow for public comments on this 

action as it needs to implement these 

emergency measures in time for the 

season to open as otherwise further 

overfishing could occur with no 

management measures in place to halt 

it. Previous catch rates indicate that 

fishermen could catch almost 37 percent 

of the baseline LCS quota in the South 

Atlantic region if the fishery remains 

open until January 15, 2007, and almost 

55 percent if the fishery remained open 

through the third week of January. 

Similarly, previous catch rates indicate 

that the entire available LCS quota for 

the first 2007 season in the Gulf of 

Mexico region could be taken in the first 

two weeks of January. Given the fact 

that fishermen caught almost three 

times the available LCS quota in the 

South Atlantic in 2006 and experienced 

overharvests in the Gulf of Mexico 

region for LCS, such an additional 

harvest and increase in fishing mortality 

would be contrary to the rebuilding plan 

outlined in the 2003 Amendment 1 to 

the 1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks and would cause 

serious damage to the resource. If action 

is not taken, fishing mortality would 

increase, contrary to the rebuilding plan 

outlined in the 2003 Amendment 1 to 

the 1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks and serious 

damage to the fishery resource could 

occur. 

Similarly, the Assistant Administrator 

find good cause under 5 U.S.C.(d)(3) to 

waive part of the 30–day delay in 

effectiveness of the this entire combined 

action. NMFS needs to implement these 

measures in a timely manner to address 

the overharvest of LCS in the Gulf of 

Mexico and South Atlantic regions in 

the 2006 first trimester and prevent 

serious damage to the fishery resources. 

Due to late Federal shark dealer reports, 

which NMFS received during the 

comment period for the initial proposed 

rule, significant landings of LCS and 

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75132 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 

SCS from the Gulf of Mexico region 

during the first 2006 trimester were not 

included in previous published 

landings estimates and the proposed 

rule. NMFS needs to implement this 

action immediately in order to prevent 

fishing for LCS in the South Atlantic 

region starting in January 1, 2007. 

Without this action, the baseline quota 

levels will take effect and fishermen 

could begin to fish for LCS on January 

1, 2007, in all regions, including those 

that had significant overharvests in 

2006. Previous catch rates indicate that 

fishermen could catch almost 37 percent 

of the baseline LCS quota in the South 

Atlantic region if the fishery remains 

open until January 15, 2007, and almost 

55 percent if the fishery remained open 

through the third week of January. 

Similarly, previous catch rates indicate 

that the entire available LCS quota for 

the first 2007 season in the Gulf of 

Mexico region could be taken in the first 

two weeks of January. Given the fact 

that fishermen caught almost three 

times the available LCS quota in the 

South Atlantic in 2006 and experienced 

overharvests in the Gulf of Mexico 

region for LCS, such an additional 

harvest and increase in fishing mortality 

would be contrary to the rebuilding plan 

outlined in the 2003 Amendment 1 to 

the 1999 FMP for Atlantic Tunas, 

Swordfish, and Sharks and would cause 

serious damage to the resource. 

This combined final and temporary 

rule for emergency action has been 

determined to be not significant for 

purposes of Executive Order 12866. 

In compliance with Section 604 of the 

Regulatory Flexibility Act, a Final 

Regulatory Flexibility Analysis (FRFA) 

was prepared for this rule. The FRFA 

analyzes the anticipated economic 

impacts of the preferred actions and any 

significant alternatives to the final rule 

portion of this action (not the action 

taken via emergency action) that could 

minimize economic impacts on small 

entities. Each of the statutory 

requirements of Section 604 of the 

Regulatory Flexibility Act has been 

addressed, and a summary of the FRFA 

is below. The full FRFA and analysis of 

economic and ecological impacts, are 

available from NMFS (see ADDRESSES). 

The temporary rule for emergency 

action portion of this rulemaking is 

exempt from the procedures of the 

Regulatory Flexibility Act because the 

rule is issued without opportunity for 

prior notice and opportunity for public 

comment. 

Section 604(a)(1) of the Regulatory 

Flexibility Act requires the Agency to 

state the objective and need for the rule. 

As stated in the preamble and in the 

proposed rule, the objective of this rule 

is to establish the quotas and season 

length for the 2007 first season of the 

Atlantic shark fishery consistent with 

the Consolidated HMS FMP and the 

rebuilding plan established in the 2003 

Amendment 1 to the Atlantic Tunas, 

Swordfish, and Sharks FMP. NMFS 

needs to implement this action in order 

to maintain fishing mortality at the 

levels designated in the 2003 

Amendment 1 to the 1999 FMP for 

Atlantic Tunas, Swordfish, and Sharks 

to prevent serious damage to the fishery 

resource. 

Section 604(a)(2) of the Regulatory 

Flexibility Act requires the Agency to 

summarize significant issues raised by 

the public comment in response to the 

IRFA, a summary of the assessment of 

the agency of such issues, and a 

statement of any changes made as a 

result of the comments. The IRFA was 

done in the draft EA for the 2007 first 

trimester season for the LCS South 

Atlantic quota management alternatives 

considered for the proposed rule. NMFS 

received several comments on the 

proposed rule and draft EA during the 

public comment period. A summary of 

these comments and the Agency’s 

responses are included earlier in this 

action. NMFS did not receive any 

comments specific to the IRFA, but did 

receive a limited number of comments 

related to economic issues and 

concerns. NMFS has addressed these 

comments in the ‘‘Response to 

Comments’’ section of this action. The 

specific economic concerns are also 

summarized here. 

Comments were received suggesting 

the economic impacts of closing the 

South Atlantic region are more likely 

neutral because the overharvest of the 

region’s trimester quota in 2006 resulted 

in fishermen already receiving the 

economic benefits. While fishermen 

received greater revenues in the first 

trimester of 2006 resulting from the 

overharvest, those economic benefits 

would not likely address the economic 

impacts of future cash flow issues that 

fishing operations may face due to 

extended closures in the future. 

Public comment also indicated that 

Alternative 5 in the proposed rule was 

preferable to fishermen because it 

would provide some economic benefits 

for the shark fishery in case it is phased 

out. Alternative 5 in the proposed rule 

would have distributed a portion of the 

originally anticipated LCS underharvest 

from the Gulf of Mexico region’s 

landings from the first trimester of 2006 

to the South Atlantic region first 

trimester of 2007. This transfer would 

have provided for a limited first 

trimester season for 2007 in the South 

Atlantic region. While this alternative 

would have provided some revenue 

generating opportunities in the South 

Atlantic region, this alternative was not 

selected as it would not account for the 

overharvest experienced in the South 

Atlantic region during the first trimester 

of 2006, resulting in additional fishing 

mortality in 2007 and negative 

ecological impacts as a consequence. 

Furthermore, the potential exists for the 

South Atlantic region to exceed its 2007 

first trimester quota, exacerbating future 

potential economic and ecological 

impacts as a result. Revised 2006 first 

trimester harvest numbers now indicate 

that the Gulf of Mexico’s landing from 

the first trimester resulted in an 

overharvest of 113.9 mt of LCS. After 

calculating 2007 and 2008 adjusted 

quotas for the South Atlantic region, 

NMFS determined that this alternative 

would not allow for a first trimester 

season in 2007, and therefore this 

alternative is now not further analyzed. 

Finally, NMFS also received comment 

that the negative economic impacts 

were underestimated in the proposed 

rule since the South Atlantic region was 

closed for LCS in October 2006, 

meaning the South Atlantic would 

experience a 10 month closure of this 

fishery and not just the six months 

stated. NMFS acknowledges that the 

South Atlantic region will in fact 

experience a closure in the South 

Atlantic region for LCS that is in total 

longer than six months. Given that the 

analysis for previous rules already 

accounted for the closure period at the 

end of 2006, technically the scope of 

analysis for this particular rulemaking 

starts on January 1, 2007, and the 

baseline for analysis in this rule factors 

in the closure period at the end of 2006. 

Nonetheless, NMFS did consider the 

economic impacts of a nine-month 

closure (October 3, 2006, to the end of 

June 2007) and closures in other 

fisheries when determining the final 

action. 

No changes were made in the rule as 

a result of these comments. 

Section 604(a)(3) of the Regulatory 

Flexibility Act requires the Agency to 

describe and provide an estimate of the 

number of small entities to which the 

rule will apply. NMFS considers all 

HMS permit holders to be small entities 

because they either had gross receipts 

less than $3.5 million for fishharvesting, gross receipts less than $6.0 

million for charter/party boats, or 100 or 

fewer employees for wholesale dealers. 

These are the Small Business 

Association size standards for defining 

a small versus large business entity in 

this industry. As of February 2006, there 

were a total of 552 commercial permit 

holders in the Atlantic shark fishery 

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Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 75133 

(240 directed and 312 incidental 

permits). Comparing 2005 logbook data 

with permit holders indicates that there 

were 86 active vessels in the Gulf of 

Mexico region, 46 active vessels in the 

South Atlantic region, and 6 active 

vessels in the North Atlantic region. 

More information regarding the 

numbers of small entities involved in 

the fishery and their locations can be 

found in Chapter 6 of the EA (see 

ADDRESSES). 

Section 604(a)(4) of the Regulatory 

Flexibility Act requires the Agency to 

describe the projected reporting, 

recordkeeping, and other compliance 

requirements of the final rule, including 

an estimate of the classes of small 

entities which would be subject to the 

requirements of the report or record. 

None of the alternatives considered for 

this final rule would result in additional 

reporting, recordkeeping, and 

compliance requirements. 

Section 604(a)(5) of the Regulatory 

Flexibility Act requires the Agency to 

describe the steps taken to minimize the 

significant economic impact on small 

entities consistent with the stated 

objectives of applicable statutes. 

Additionally, the Regulatory Flexibility 

Act (5 U.S.C. § 603(c)(1)-(4)) lists four 

general categories of ‘‘significant’’

alternatives that would assist an agency 

in the development of significant 

alternatives. These categories of 

alternatives are: 

• Establishment of differing 

compliance or reporting requirements or 

timetables that take into account the 

resources available to small entities; 

• Clarification, consolidation, or 

simplification of compliance and 

reporting requirements under the rule 

for such small entities; 

• Use of performance rather than 

design standards; and, 

• Exemptions from coverage of the 

rule for small entities. 

As noted earlier, NMFS considers all 

permit holders in this fishery to be 

small entities. In order to meet the 

objectives of this final rule, consistent 

with Magnuson-Stevens Act and the 

Endangered Species Act (ESA), NMFS 

cannot exempt small entities or change 

the reporting requirements only for 

small entities. Thus, there are no 

alternatives discussed that fall under the 

first and fourth categories described 

above. In addition, none of the 

alternatives considered would result in 

additional reporting or compliance 

requirements (category two above). 

NMFS does not know of any 

performance or design standards that 

would satisfy the aforementioned 

objectives of this rulemaking while, 

concurrently, complying with the 

Magnuson-Stevens Act. 

NMFS considered five different 

alternatives (A1 - A5) in the final rule 

portion of this rulemaking for LCS quota 

and season length for the North and 

South Atlantic and provides 

justification for selection of the 

preferred alternative to achieve the 

desired objective. 

The alternatives included: status quo 

(alternative A1), closing the South 

Atlantic region during the first trimester 

of 2007 and opening the entire South 

Atlantic region including the midAtlantic shark closed area in July 2007 

pending available quota (alternative 

A2), opening the mid-Atlantic shark 

closed area on January 1, 2007, through 

July 31, 2007, dependant on available 

quota for LCS during the first and 

second trimester seasons of 2007 

(alternative A3), modification of the 

percent of the annual baseline quota 

each region received based on recent 

harvest (alternative A4), and spreading 

the impacts of the current overharvest 

out over several years (alternative A5). 

Closing the South Atlantic region during 

the first trimester and opening the entire 

South Atlantic region including the 

mid-Atlantic shark closed area in July 

2007 pending available quota is the 

preferred alternative (alternative A2). 

Alternative A1 is the status quo 

alternative and would maintain existing 

procedures for addressing regional 

trimester over- and underharvests when 

establishing the regional quotas and 

seasons for the first trimester of 2007 

and it would also maintain the existing 

mid-Atlantic shark closed area. Positive 

economic benefits may be realized in 

the North Atlantic regions because that 

region would be open, with ample 

quota, throughout the entire first 

trimester 2007. This alternative is not 

preferred, as it would result in negative 

economic impacts for the South Atlantic 

region and Gulf of Mexico region, 

compared to the preferred alternative. 

In and of itself, alternative A1 does 

not create any new economic burdens 

on the shark commercial industry that 

was not included in previous 

rulemaking. Regardless, the unexpected 

magnitude of the 2006 first trimester 

overharvest would result in no 

commercial fishing for LCS in the entire 

South Atlantic region from January 1 to 

July 31, 2007, and there would be no 

fishing with bottom longline gear 

permitted in the mid-Atlantic shark 

closed area until August 1, 2007, per 

status quo. In addition, as a result of the 

revised landings numbers indicating a 

significant overharvest in the Gulf of 

Mexico, the Gulf of Mexico fishing 

season for the first trimester of 2007 will 

only be from January 1 to January 15, 

2007. 

If not for the overharvest in 2006, the 

first trimester quota available would 

have been 137.6 mt of LCS in the South 

Atlantic. Using a median ex-vessel price 

of $0.51 for LCS and $12.61 for shark fin 

reported in HMS Dealer reports from 

2002 to 2005 for the South Atlantic 

region and adjusted for inflation, the 

value of this harvest would have been 

approximately $146,976 for LCS fresh 

(95 percent of the quota weight) and 

$191,266 for shark fins (based on the 5 

percent shark fin to carcass regulation). 

Therefore, the 2006 overharvest is 

estimated to have an estimated direct 

revenue impact on South Atlantic 

regional commercial shark fishing 

activity of approximately $338,242. 

There will also be continued economic 

hardship compared to the preferred 

alternative for fishing operations using 

BLL gear that are dependant on LCS in 

the vicinity of the mid-Atlantic shark 

closed area since they would not be 

permitted to fish until August 1, 2007. 

Using the median ex-vessel prices for 

the first trimester of 2006 of $0.45 and 

$14.00 for LCS flesh and shark fins, 

respectively, the estimated revenue for 

the first trimester in 2006 from the 184.3 

mt in overharvest was $625,902. 

However, a closure during the first 

trimester of 2007 would result in 

disrupted revenue flows and result in 

negative economic impacts. Maintaining 

the mid-Atlantic shark closed area 

would result in no fishing with bottom 

longline gear permitted in the midAtlantic shark closed area until August 

1, 2007. This could impact some of the 

vessels dependant on fishing with BLL 

gear in this region. 

If not for the overharvest in 2006 in 

the Gulf of Mexico, the first trimester 

quota available would have been 176.1 

mt of LCS in the Gulf of Mexico. 

However, it is instead an adjusted quota 

of 62.3 mt of LCS. Using a median exvessel price of $0.43 for LCS and $16.56 

for shark fin reported in HMS Dealer 

reports from 2002 to 2005 for the Gulf 

of Mexico region and adjusted for 

inflation, the value of this 113.8 mt 

reduction in the available quote for the 

first trimester of 2007 is approximately 

$102,487 for LCS fresh (95 percent of 

the quota weight) and $207,733 for 

shark fins (based on the 5 percent shark 

fin to carcass ratio required by 

regulation). Therefore, the 2006 

overharvest is estimated to have an 

estimated direct revenue impact on Gulf 

of Mexico regional commercial shark 

fishing activity of approximately 

$310,220. Using the median ex-vessel 

prices for the first trimester of 2006 of 

$0.40 and $17.75 for LCS flesh and 

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75134 Federal Register / Vol. 71, No. 240 / Thursday, December 14, 2006 / Rules and Regulations 

shark fins, respectively, the estimated 

revenue for the first trimester in 2006 

from the 113.8 mt in overharvest was 

$317,998. However, a closure during the 

first trimester of 2007 would result in 

disrupted revenue flows and result in 

negative economic impacts. 

Overall, the economic impact of 

reduced 2007 LCS quota for both the 

South Atlantic and Gulf of Mexico 

regions would result in a total economic 

impact of $648,462 in reduced revenues. 

While those past excess revenues 

exceed the 2007 estimated reductions in 

revenues from LCS, it is still likely that 

fishing operations will face economic 

impacts due to dramatic cash flow 

reductions in 2007 and, potentially, 

beyond since it is likely that 2006 

excess revenues were not retained by 

fishermen to offset future shortfalls 

since reductions in quota were likely 

unanticipated at the time. Some of these 

impacts might be mitigated somewhat 

for vessels that can fish in other regions 

or fisheries. However, these 

opportunities will likely be limited and 

result in additional costs associated 

with adjusting current fishing practices. 

The Agency received public comment 

indicating that quota reductions in the 

golden tilefish fishery will also impact 

participants fishing with bottom 

longline gear in the Cape Canaveral, FL, 

area as many of these fishermen depend 

on LCS and golden tilefish. 

Alternative A2, the preferred 

alternative, which would close the 

entire South Atlantic region for LCS 

during the first trimester of 2007 and 

open the entire region including the 

mid-Atlantic shark closed area region in 

July 2007, pending availability of quota, 

could minimize the economic costs 

associated with the South Atlantic 

regional overharvest. As described 

above for Alternative A1, the 2006 

overharvest is estimated to have a direct 

revenue impact on regional commercial 

shark fishing activity of approximately 

$338,242 for the South Atlantic and 

$310,220 for the Gulf of Mexico. In 

2005, 46 vessels reported landings in 

the South Atlantic region, indicating 

that the LCS closure could result in a 

loss of revenue of approximately $7,353 

per vessel. There were also 86 vessels 

reporting landings in the Gulf of 

Mexico, indicating that the LCS reduced 

quota in this region for the first 

trimester could result in a loss of 

revenues of approximately $3,607 per 

vessel. However, this alternative might 

provide an additional month of fishing 

opportunities for vessels that may not be 

able to participate in the South Atlantic 

regional fishery during the first six 

months of 2007. Compared to preclosure landings (2002–2004), landings 

in 2005 of LCS decreased by 13.9 mt dw 

which may have been a result of the 

closed area. This additional month of 

access to the mid-Atlantic shark closed 

area during the month of July is 

estimated to potentially result in an 

additional $34,188 in gross shark 

revenues based on the difference in 

landings that may occur as a result of 

reopening the mid-Atlantic shark closed 

area. 

Alternative A3 would open the midAtlantic shark closed area on January 1, 

2007, through July 31, 2007, dependant 

on available quota for LCS during the 

first and second trimester seasons of 

2007. Given the preliminary landings 

data as of November 13, 2006 (71 FR 

66154), it is likely quota will not be 

available since the data indicate that 

extensive overharvests in the South 

Atlantic region would result in no 

available quota in that region. The 

impacts of this alternative would be 

similar to the preferred alternative or 

the status quo alternative as lack of 

available quota would prevent fishing in 

the South Atlantic region during the 

first trimester. In addition, updated 

landings data for LCS in the Gulf of 

Mexico region indicate that a transfer of 

LCS quota from the Gulf of Mexico 

region to the South Atlantic region is no 

longer a feasible option. This alternative 

is not preferred because the preferred 

alternative achieves similar objectives, 

yet ensures that the ecological benefits 

of maintaining the mid-Atlantic shark 

closed area are maintained through June 

2007. 

Alternatives (A4 and A5) were also 

considered. These two alternatives 

would have modified the percent of the 

annual baseline quota each region 

received based on recent harvest (A4) or 

would have spread the impacts of the 

current overharvest out over several 

years (A5). These two alternatives were 

not preferred given the data used for 

modifying the current regional 

allocation did not consider the 

overharvest (logbooks from 2006 are not 

available for analyses yet) and given the 

Agency’s decision to amend shark 

management based on the results of the 

latest assessments (November 7, 2006; 

71 FR 65086). 

List of Subjects in 50 CFR Part 635 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Treaties. 

Dated: December 7, 2006. 

William T. Hogarth, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For 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 part 635 

continues to read as follows: 

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

et seq. 

■ 2.In § 635.21, paragraph (d)(1) is 

revised to read asfollows: 

§ 635.21 Gear operation and deployment 

restrictions. 

* * * * * 

(d) * * * 

(1) If bottom longline gear is on board 

a vessel issued a permit under this part 

635, persons on board that vessel may 

not fish or deploy any type of fishing 

gear in the mid-Atlantic shark closed 

area from January 1 through July 31 

each calendar year, except that in 2007 

the mid-Atlantic shark closed area will 

be closed from January 1 through June 

30 and may open in July, contingent 

upon available quota. 

* * * * * 

[FR Doc. 06–9667 Filed 12–8–06; 2:52 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

RIN 0648–AT60 

[Docket No. 061020273–6321–02; I.D. 

101606A] 

Fisheries of the Northeastern United 

States; Summer Flounder, Scup, and 

Black Sea Bass Fisheries; 2007 

Summer Flounder, Scup, and Black 

Sea Bass Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues final 

specifications for the 2007 summer 

flounder, scup, and black sea bass 

fisheries. This final rule specifies 

allowed harvest limits for both 

commercial and recreational fisheries, 

including commercial scup possession 

limits. This action prohibits federally 

permitted commercial vessels from 

mstockstill on PROD1PC61 with RULES