        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 060925247-6247-01; 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:
          Proposed rule; request for comments.

          SUMMARY:
          This proposed rule would establish the 2007 first trimester season quotas for large coastal sharks (LCS), small coastal sharks (SCS), and pelagic sharks. The proposed rule also would modify the existing mid-Atlantic shark closed area in 2007. In addition, this rule proposes the opening and closing dates for the LCS fishery based on adjustments to the trimester quotas. The intended effect of these proposed actions is to provide advance notice of quotas and season dates for the Atlantic commercial shark fishery and address over- and underharvests that occurred in the Atlantic shark fishery in the first trimester of 2006.

          DATES:
          Written comments will be accepted until November 1, 2006.
          Public hearings will be held from 6-8 p.m. on each of the following dates: October 19, 23, and 25.

          ADDRESSES:
          Written comments on the proposed rule may be submitted to Michael Clark, Highly Migratory Species Management Division via:
          • E-mail: SF1.091106B@noaa.gov.
          • Mail: 1315 East-West Highway, Silver Spring, MD 20910. Please mark on the outside of the envelope “Comments on Proposed Rule for 2007 1st Trimester Season Lengths and Quotas.”
          • Fax: 301-713-1917.
          • Federal e-Rulemaking portal: http://www.regulations.gov. Include in the subject line the following identifier: I.D. 091106B.
          The hearing locations are:
          1. October 19, 2006 from 6-8 p.m. City of Madeira Beach, 300 Municipal Drive, Madeira Beach, FL 33708.
          2. October 23, 2006 from 6-8 p.m. Town Hall, 407 Budleigh Street, Manteo, NC 27954.
          3. October 25, 2006 from 6-8 p.m. Comfort Inn and Suites Port Canaveral Area, 3901 N. Atlantic Avenue, Cocoa Beach, FL 32931.

          Copies of the draft Environmental Assessment (EA) and other relevant document are available from the HMS website (http://www.nmfs.noaa.gov/sfa/hms/), or by contacting Michael Clark (see FOR FURTHER INFORMATION CONTACT).

          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 Magnuson-Stevens 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 (1999 - 2003). 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 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 were 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. The quotas were divided in this manner because sharks are available throughout much of the year in the Gulf of Mexico and South Atlantic regions, but primarily during the summer months in the North Atlantic region. Dividing the quotas equally among the three trimester seasons in the South Atlantic also result in a greater proportion of the quota being made available during August and September when the mid-Atlantic shark closure is no longer in effect.
        Consistent with 50 CFR 635.27(b)(1)(iii) and (vi), any over- or underharvest in a given region from the 2006 first trimester season will be carried over to the 2007 first trimester season in that region.
        First Trimester 2006 Landings
        Shark landings data for the first trimester of 2006 are provided in Table 1. As a result of the over- and underharvests that occurred in the first trimester season of 2006, NMFS analyzed alternatives to adjust the 2007 first trimester seasons and quotas for the LCS fishery.
        Quota Adjustments in the LCS Fishery
        The Agency conducted an Environmental Assessment (EA) to analyze five alternatives for adjusting regional trimester LCS quotas and other management measures based on the over- and underharvests that occurred in the LCS fisheries in the South Atlantic and Gulf of Mexico regions, respectively, during the 2006 first trimester season.
        These measures are necessary to ensure that over- and underharvests from 2006 are accounted for and any impacts are analyzed. The base quotas established in Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks and maintained in the Consolidated HMS FMP would not be affected by this rulemaking. Rather, the base quotas would be changed via an amendment to the FMP. These measures are necessary to ensure that over- and underharvests from 2006 are accounted for and any impacts are analyzed. The Agency is preparing, in a separate action, an amendment to the 2006 Consolidated HMS FMP to implement management measures that address the results of recent stock assessments, including the need for rebuilding plans and other modifications to the management program. Therefore, the Agency is not proposing any modifications to fishing seasons or quotas beyond the first trimester of 2007, at this time.
        The current regulations (status quo, alternative 1) state that NMFS will adjust the next year's fishing season (2007) and quotas for LCS to reflect actual landings during the previous fishing season (2006) in any particular region. Due to the excessive landings (230 percent of quota) of LCS reported in the South Atlantic region during the first trimester of 2006, the status quo alternative would not allow for any available quota in that region for LCS in the first trimester of 2007. This alternative would not modify the regional quotas or the mid-Atlantic shark closed area. Quotas and season lengths are provided in Table 1.
        The current regulations at 50 CFR 635.27(b)(1)(vi)(A) and (b)(2) allow for the transfer of up to 10 percent of a region's annual quota between two regions that have a corresponding under- and overharvest. Thus, NMFS also considered alternative 2, which would transfer up to 10 percent of the Gulf of Mexico region's annual quota to the South Atlantic region. This amount of quota would not be sufficient to account for the overharvest experienced by the South Atlantic region during the first trimester of 2006.
        The preferred alternative (alternative 3) 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, subject to availability of quota for the second trimester of 2007. This alternative would result in a closure of the South Atlantic region for approximately six months (January-June 2007). Negative ecological impacts of re-opening the closed area are not expected to be significant because the re-opening would be allowed for only one month during one year. Unless action were taken to open the closure in the upcoming amendment to the HMS FMP, the area would be closed from January 1 to July 31, in 2008 and subsequent years. Economic and social impacts of re-opening the mid-Atlantic shark closed area would likely be positive relative to the status quo as fishermen in this area would have additional fishing opportunities during the month of July.
        Alternative 4 would open the mid-Atlantic shark closed area from January 1, 2007, through July 31, 2007. The opportunity to land LCS in this area during this time period would be contingent on the availability of quota for the first and second trimesters of 2007. This alternative was not selected because LCS quota would not likely be available for the first trimester of 2007, therefore, the closed area would not be opened until the second trimester (July 2007), similar to the preferred alternative. Furthermore, if quota were made available by combining this alternative with alternative 5, negative ecological impacts may be more extensive because the overharvest that occurred in 2006 would not be addressed. A permanent removal of the closure was not analyzed because such an action would require an FMP amendment to ensure consistency with the current rebuilding plan for sandbar sharks. An upcoming FMP amendment will implement measures to address the 2006 stock assessments for the LCS complex and dusky, sandbar, and blacktip sharks and will also review the mid-Atlantic shark closed area, among other measures, in light of more recent information.
        Lastly, alternative 5 would transfer the entire underharvest from the Gulf of Mexico region (119.7 mt dw) to the South Atlantic region. Once overharvests from 2006 are addressed, this alternative would provide a quota of 74.3 mt dw, resulting in a three-week fishing season for the South Atlantic region during the first trimester of 2007. A season of three weeks would be estimated to harvest 85 percent of the quota, including 33 percent that is harvested after the seasonal closure. Keeping the season open for four weeks would result in a 2 percent overharvest during the first trimester. Transferring this quota to the South Atlantic region results in 176.1 mt dw of LCS quota and a proposed seasonal closure of April 15, 2007, for the Gulf of Mexico region. Keeping the season open until April 30, 2007, would result in a 9 percent overharvest, including 0.85 percent being harvested after the seasonal closure. The North Atlantic region would have the same fishing seasons and quotas as the preferred alternative.
        Combining alternative 5, which would transfer the Gulf of Mexico region's underharvest to the South Atlantic region with alternative 4, which would open the mid Atlantic shark fishery closure in January 2007, would result in negative ecological impacts and positive social and economic benefits.

        The preferred alternative (alternative 3) was selected to account for the overharvest experienced by the South Atlantic region during the first trimester of 2006, while providing participants in this region with a one-time additional fishing opportunity in the month of July 2007. The ability to fish during the month of July 2007, depending on available quota, should not result in significant negative ecological impacts due to the limited nature of the opening (one month in one year). In addition, this alternative may offset some of the negative economic impacts of not being able to target LCS for the first six months of 2007 as a result of the first trimester closure. Furthermore, this opening may address perceived inequity between fishery participants in the vicinity of the mid-Atlantic shark closed area with those in other portions of the South Atlantic region.
        Proposed Quotas for First Trimester 2007
        Pursuant to Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks, and the Final Consolidated HMS FMP, 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 proposed rule does not propose any changes to these overall base landings quotas. Table 1 describes the proposed 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 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 proposed to be 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.
        Proposed 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, is proposed to open on January 1, 2007 (Table 1). 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 proposes to close the Federal LCS fishery on either the 15th or the end of any given month.
        Proposed Opening and Closing Dates and Quotas
        Proposed opening and closing dates for the 2007 first trimester season, by region and species group, are provided in Table 1.

          Table 1. Proposed 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.

            Species Group (Annual Quota)
            Region (Allocation)
            2006 1st Tri. Quota
            2006 1st Tri. Landings
            2007 1st Tri. Quota
            +/− Under/Over Harvest
            2007 Proposed Quota
            Proposed Season

            Large Coastal Sharks (1,017)
            Gulf of Mexico (52 %)
            176.1
            103.1
            176.1
            +119.7
            295.8 (692,157 lb dw)
            Jan. 1 - April 30, 2007

            South Atlantic (41 %)
            141.3
            326.1
            137.6
            −184.3
            −46.7 (−102,955 lb dw)
            Closed

            North Atlantic (7 %)
            5.3
            0.3
            2.8
            +5.0
            7.8 (17,196 lb dw)
            Jan. 1 - April 30, 2007

            Small Coastal Sharks (454)
            Gulf of Mexico (10 %)
            14.8
            5.0
            15.1
            +9.8
            24.9 (54,894 lb dw)
            Jan. 1, 2007 - To be determined

            South Atlantic (87 %)
            284.6
            42.1
            131.5
            +242.5
            374.0 (824,520 lb dw)

            North Atlantic (3 %)
            18.7
            0.1
            0.1
            +18.6
            18.7 (41,226 lb dw)

            Blue Sharks (273)
            No regional quotas
            91.0
            20.3
            91.0
            Not applicable
            91.0 (200,618 lb dw)
            Jan. 1, 2007 - To be determined

            Porbeagle sharks (92)

            30.7

            30.7

            30.7 (67,681 lb dw)

            Pelagic Sharks other than Porbeagle or blue (488)

            162.7

            162.7

            162.7 (358,688 lb dw)

        Request for Comments

        Comments on this proposed rule may be submitted at public hearings, via email, mail, or fax. NMFS will hold three public hearings to receive comments from fishery participants and other members of the public regarding these proposed alternatives. These hearings will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Michael Clark at (301) 713-2347 at least 5 days prior to the hearing date. For individuals unable to attend a hearing, NMFS also solicits written comments on this proposed rule (see DATES and ADDRESSES).
        Classification
        NMFS has preliminarily determined that this action is consistent with section 304(b)(1) of the Magnuson-Stevens Fishery Conservation and Management Act, including the National Standards, and other applicable law.
        An EA has been prepared that describes the impact on the human environment that would result from implementation of alternative management measures that may adjust LCS quotas in the first trimester of 2007 based on over- and underharvests in the South Atlantic and Gulf of Mexico regions, respectively. Based on the EA, Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA) under the Regulatory Flexibility Act, and review of the National Environmental Policy Act (NEPA) criteria for significant effects (40 CFR Part 1508.27) and NMFS criteria for significance evaluated above (NAO 216-6 Section 6.02), no significant effect on the quality of the human environment is anticipated from this action.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        In compliance with Section 603 of the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis was prepared for this rule. The IRFA analyzes the anticipated economic impacts of the preferred actions and any significant alternatives to the proposed rule that could minimize economic impacts on small entities. A summary of the IRFA is below. The full IRFA and analysis of economic and ecological impacts, are available from NMFS (see ADDRESSES).
        In compliance with Section 603 (b)(1) and (2) of the Regulatory Flexibility Act, the purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act, to adjust the LCS and SCS regional and trimester quotas and propose season lengths for LCS, SCS, and pelagic sharks for the first trimester of 2007 based on under- and overharvests that occurred during the first trimester of 2006. This rule does not change the overall base quotas.
        Section 603 (b)(3) requires Agencies to provide an estimate of the number of small entities to which the rule would apply. This rule could directly affect commercial shark fishermen and dealers on the Atlantic Ocean in the United States. There are approximately 552 (240 directed and 312 incidental) shark permit holders and 336 commercial shark dealers that would be affected by this proposed rule. All of these permit holders and dealers are considered small entities according to the Small Business Administration's standard for defining a small entity. Other small entities involved in HMS fisheries such as processors, bait houses, and gear manufacturers might be indirectly affected by the proposed regulations.
        This proposed rule does not contain any new reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). Similarly, this proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)).
        One of the requirements of an IRFA, under Section 603 of the Regulatory Flexibility Act, is to describe any alternatives to the proposed rule that accomplish the stated objectives and that minimize any significant economic impacts (5 U.S.C. 603 (c)). Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four categories for alternatives that must be considered. These categories are: (1) establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage for small entities.
        In order to meet the objectives of this proposed rule, consistent with Magunson-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. As described below, NMFS analyzed five different alternatives in this proposed rulemaking and provides justification for selection of the preferred alternative to achieve the desired objective.
        The alternatives included: status quo (alternative 1), transferring 10 percent of the Gulf of Mexico region annual quota to the South Atlantic (alternative 2), closing the South Atlantic region during the first trimester of 2007 and opening the mid Atlantic shark closed area in July 2007 (alternative 3), removing the mid-Atlantic shark closed area (alternative 4), and transferring the entire Gulf of Mexico region underharvest to the South Atlantic region (alternative 5). Closing the South Atlantic region during the first trimester and opening the mid Atlantic shark closed area in July is the preferred alternative (alternative 3).
        Alternative 1 is considered the status quo alternative since it 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 closure. The Gulf of Mexico and North Atlantic regions would maintain similar economic levels as previous years because those regions are proposed to 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, compared to the preferred alternative.
        By itself, the status quo alternative does not create any new economic burdens on the shark commercial industry. 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 (BLL) gear permitted in the Mid-Atlantic shark closure until August 1, 2007.

        If not for the overharvest in 2006, the first trimester quota available would have been 137.6 mt of LCS. Using a median ex-vessel price of $0.51 for LCS and $12.61 for shark fin reported HMS Dealer reports from 2002 to 2005 for the South Atlantic 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 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 closure since they would not be permitted to fish until August 1, 2007. However, it should be noted that fishermen received revenue sooner under the 2006 first trimester overharvest than they normally would have received. However, a closure during the first trimester of 2007 would result in disrupted revenue flows and negative economic impacts. 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 $458,116.
        Maintaining the Mid-Atlantic shark closed area would result in no fishing with BLL gear permitted in the mid-Atlantic shark closure until August 1, 2007. This could impact some of the vessels dependant on fishing with BLL gear in this region.
        Alternative 2 would 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. This would likely result in the same economic effects as the status quo alternative, since the transferred amount is not likely to be sufficient to allow for an LCS season in the first trimester in the South Atlantic region while still allowing for a full season in the Gulf of Mexico region. Before implementing this alternative, it would be necessary to review the annual regional landings for 2006 for both regions before determining whether the South Atlantic and Gulf of Mexico regions have corresponding annual over- and underharvests, respectively. This alternative is not preferred, as it would result in negative economic impacts for the South Atlantic region, similar to alternative 1 (status quo), compared to the preferred alternative.
        Alternative 3, the preferred alternative, would close the entire South Atlantic region for LCS during the first trimester of 2007 and open the entire area including the mid-Atlantic shark closed area region in July 2007, pending availability of quota. This alternative could minimize the economic costs associated with the South Atlantic overharvest. As described above for Alternative 1, the 2006 overharvest is estimated to have an estimated direct revenue impact on South Atlantic commercial shark fishing activity of approximately $338,242. 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/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 fishery during the first six months of 2007. Compared to pre-closure 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 region 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 4 would open 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. Given the preliminary landings data as of August 24, 2006, it is likely quota will not be available. Therefore, it is likely that this alternative would result in economic impacts identical to Alternative 3. 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. 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 of 2007. Furthermore, if fishing were allowed in the first trimester of 2007 by transferring quota from the Gulf of Mexico region (alternative 5) this alternative would result in negative ecological impacts because it does not account for the overharvest that occurred in 2006.
        Alternative 5 would distribute a portion of the 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 a first trimester season for 2007 in the South Atlantic. Transferring all of the Gulf of Mexico region's under harvest to the South Atlantic could provide for 74.3 mt dw of quota that would provide for an approximately 3-week long season. This 3-week season would generate approximately $182,641 (95 percent at $0.51/lb dw LCS and 5 percent at $12.61/lb dw shark fins) in revenue in the South Atlantic region. However, the estimated revenue generated during the 3-week season would still be about $155,601 less than the potential revenue associated with the annual quota allocation. 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.
        Overall, underharvests from 2006 that would be transferred to the first trimester season quota for 2007 under this alternative may result in economic benefits for the Gulf of Mexico that may potentially offset some of the negative economic impacts to the South Atlantic region. Increases in possible revenue as a result of transferring the underharvests are only potential amounts that may or may not be realized. If revenues are not realized then there would be no economic impact because the fishermen did not receive any benefit from the transfer of underharvests. If revenues are realized, it may result in a positive economic impacts.
        These proposed regulations are not expected to increase endangered species or marine mammal interaction rates. A Biological Opinion (BiOp) issued October 29, 2003, concluded that the continued operation of the Atlantic shark fisheries was not likely to jeopardize the continued existence of any listed species under NMFS purview. An analysis of the anticipated incidental takes of sea turtles (primarily loggerhead and leatherback sea turtles) and smalltooth sawfish resulted in a “non-jeopardy” determination in the BiOp. This proposed rule would adjust LCS quotas for the first trimester of 2007 based on over- and underharvests that occurred in the first trimester of 2006. Furthermore, this proposed rule would not alter fishing practices or fishing effort significantly and therefore should not have any further impacts on endangered species or marine mammals beyond those considered in the October 29, 2003, BiOp for Atlantic shark fisheries. Between 1994-2004, there have been 5 loggerhead sea turtles observed caught on BLL gear in the mid-Atlantic shark closed area, two of which were released alive. Only one of these interactions occurred during the moth of July (1998). Re-opening the mid-Atlantic shark closure in July would likely have slightly negative ecological impacts because the likelihood of interactions with protected resources and other bycatch would be increased due to the displacement of fishing effort to an area that had been previously closed. The modification to the mid-Atlantic shark closure area is not expected to significantly impact interactions with protected resources, because the South Atlantic region would be closed to targeted LCS fishing from January through June of 2007.

        The preferred alternative of opening the mid-Atlantic shark closed area in July 2007, dependent upon available quota, would likely increase fishing mortality of juvenile sandbar sharks. This area is considered an Habitat Area of Particular Concern (HAPC) for sandbar sharks. However, the impacts on Essential Fish Habitat (EFH), and specifically, the HAPC are considered to be negligible because of the short duration of the opening. A status quo alternative was considered that would have reduced ecological impacts on the HAPC and EFH in general, however, that alternative would result in more extensive negative social and economic impacts because the South Atlantic region will be closed for the first seven months of 2007, rather than six months as preferred.

          List of Subjects in 50 CFR Part 635
          Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

          Dated: September 28, 2006.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

          PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

        1. The authority citation for 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 as follows:

          § 635.21
          Gear operation and deployment restrictions.

          (d) * * *
          (1) If bottom longline gear is on board a vessel issued a permit under this part, 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. E6-16408 Filed 10-4-06; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 040205043-4043-01; I.D. 122303G]
        RIN 0648-AP95
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Grouper Rebuilding Plan

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS issues this proposed rule to implement Secretarial Amendment 1 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Secretarial Amendment 1), which was prepared by the Secretary of Commerce and the Gulf of Mexico Fishery Management Council (Council) pursuant to the rebuilding requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).  This proposed rule would establish a quota for red grouper, provide for closure of the entire shallow-water grouper fishery when either the shallow-water grouper quota or the red grouper quota is reached, establish a bag limit of two red grouper per person per day, reduce the shallow-water grouper quota, reduce the deep-water grouper quota, and establish a quota for tilefishes.  In addition, for red grouper in the Gulf of Mexico, Secretarial Amendment 1 would establish a 10-year stock rebuilding plan, biological reference points, and stock status determination criteria consistent with the requirements of the Magnuson-Stevens Act.  The intended effect of this proposed rule is to end overfishing and rebuild the red grouper resource.

          DATES:
          Comments must be received no later than 5 p.m., eastern time, on April 20, 2004.

          ADDRESSES:

          Written comments on the proposed rule must be sent to Phil Steele, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL  33702.  Comments may also be sent via fax to 727-570-5583.  Comments on this rule may be submitted by e-mail.  The mailbox address for providing e-mail comments is 0648-AP95.Proposed@noaa.gov.  Include in the subject line of the e-mail comment the following document identifier:  0648-AP95.
          Copies of documents supporting this proposed rule, which include an environmental assessment, a fishery impact statement, a social impact statement, a regulatory impact review (RIR), and an initial regulatory flexibility act analysis (IRFA) are available from the NMFS address above.

          FOR FURTHER INFORMATION CONTACT:

          Phil Steele, telephone:  727-570-5305, fax:  727-570-5583, e-mail: Phil.Steele@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) that was prepared by the Council.  The FMP was approved by NMFS and implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622.
        Background

        In October 2000, NMFS declared the Gulf of Mexico stock of red grouper to be overfished and undergoing overfishing.  This determination was based on the results of a 1999 red grouper stock assessment and subsequent analysis by the NMFS Southeast Fisheries Science Center and the Council's Reef Fish Stock Assessment Panel.  Subsequently, a 2002 stock assessment found that the stock, although still undergoing overfishing, is in an improved condition and is no longer overfished.  However, the stock has not yet reached the biomass level that is capable of producing MSY on a continuing basis (BMSY).  Therefore, measures to end overfishing and a rebuilding plan to restore the stock to the BMSY level in 10 years or less are still necessary.
        Secretarial Amendment 1 and this proposed rule contain measures for red grouper that are designed to end overfishing, establish biological reference points and stock status determination criteria, and initiate implementation of the rebuilding plan in a manner that allocates the necessary restrictions fairly and equitably between the recreational and commercial sectors of the fishery, consistent with the requirements of the Magnuson-Stevens Act.  Because the reef fish fishery is a multi-species fishery in which fishers can easily redirect fishing effort to other reef fish species, additional measures, applicable to other closely associated shallow-water and deep-water groupers and tilefishes, are provided to minimize any potential negative impacts on those stocks as a result of a possible shift of fishing effort from red grouper to those species.
        Biological Reference Points and Stock Status Determination Criteria
        Consistent with the requirements of the Magnuson-Stevens Act, Secretarial Amendment 1 would establish the following biological reference points and stock status determination criteria for Gulf of Mexico red grouper maximum sustainable yield (MSY); optimum yield (OY); maximum fishing mortality threshold (MFMT) (the fishing mortality rate which, if exceeded, constitutes overfishing); and minimum stock size threshold (MSST) (the stock size below which the stock would be considered overfished).
        MSY = 7.560 million lb (3.429 million kg).

        OY = The yield obtained from a fishing mortality rate equal to 75 percent of FMSY.  OY is currently estimated to be 7.385 million lb (3.350 million kg) gutted weight, based on an FMSY of 0.306.
        MFMT = FMSY (currently estimated at 0.306), or the fishing mortality consistent with recovery to MSY in no more than 10 years.

        MSST = 80 percent of BMSY; currently estimated to be 672 metric tons of mature female gonad weight, based upon a BMSY of 840 metric tons of mature female gonad weight.
        Stock Rebuilding Plan
        Secretarial Amendment 1 would establish a 10-year red grouper rebuilding plan, structured in 3-year intervals, that would end overfishing and rebuild the stock to MSY.  Measures to implement the plan are designed to allocate the required reductions equitably between the commercial and recreational sectors.  The 3-year intervals are intended to provide short-term stability for the management and operation of the fishery, correlate more closely with the timing of future stock assessments, and provide a more reasonable time period for assessing the impacts of prior management actions.  The appropriate parameters for subsequent 3-year intervals, consistent with the overall objectives of the rebuilding plan, would be determined based upon the most recent stock assessments.
        Initial (2004-2006) Implementation of the Rebuilding Plan
        Based on the results of the latest (2002) red grouper stock assessment, a reduction of approximately 9.4 percent in overall red grouper harvest is necessary to end overfishing and initiate stock rebuilding during the first 3-year interval of the 10-year rebuilding plan.  The following measures are designed to achieve that reduction fairly and equitably within both the commercial and recreational sectors.
        Measures Applicable to the Commercial Red Grouper Fishery
        This proposed rule would establish a commercial red grouper quota of 5.31 million lb (2.41 million kg) gutted weight.  This would achieve a 9.4-percent reduction from the average commercial harvest during the baseline period, 1999-2001.
        In addition, the provisions for closure of the shallow-water grouper fishery would be modified.  Red grouper are included in the existing shallow-water grouper quota but under this proposed rule would also be subject to a separate red grouper quota.  If the red grouper quota was reached and that fishery closed, it is likely that incidental catch and mortality of red grouper would continue until the shallow-water grouper quota was reached and that fishery was closed.  To avoid that potential adverse impact, this proposed rule would require closure of the entire shallow-water grouper fishery when either the red grouper or shallow-water grouper quotas are reached.
        Measures Applicable to the Recreational Red Grouper Fishery
        This proposed rule would establish a 2-fish recreational red grouper bag limit within the existing 5-fish aggregate grouper bag limit (which applies to all grouper combined, excluding goliath grouper and Nassau grouper).  Therefore, a recreational angler would be restricted to the bag limit of five grouper, no more than two of which could be red grouper.  The 2-fish red grouper bag limit would achieve approximately a 9-percent reduction relative to average recreational harvest during the baseline period, 1999-2001.  Although this is slightly less than the target 9.4-percent reduction, it is the closest approximation that could be achieved via the preferred bag limit approach.  This minor variation is not expected to have a significant biological impact given that the recreational sector accounts for only about 19 percent of red grouper harvest.
        Measures to Address Potential Effort Shift in the Reef Fish Fishery
        There are management measures currently in place to control fishing mortality on most of the major reef fish species, e.g., shallow-water and deep-water grouper quotas.  Because fishing effort within the reef fish fishery is readily transferable to most reef fish species and because this proposed rule would reduce the allowable harvest of red grouper, additional measures are necessary to ensure that potential effort shift does not adversely affect other reef fish species.
        This proposed rule would reduce the shallow-water grouper quota from 9.35 million lb (4.24 million kg) gutted weight, which is equivalent to 9.8 million lb (4.45 million kg) whole weight, to 8.80 million lb (3.99 million kg) gutted weight.  This would reduce the shallow-water grouper quota consistent with the reduction in the allowable red grouper harvest, i.e., a reduction of about 0.55 million lb (0.25 million kg).  Although red grouper would have a separate quota under this proposed rule, red grouper is also a component of the shallow-water grouper quota.  Reducing the shallow-water grouper quota to reflect the reduction in the allowable harvest of red grouper should minimize the potential for any shift of fishing mortality to other shallow-water grouper species.  The shallow-water grouper quota includes all groupers other than deep-water groupers, goliath grouper, and Nassau grouper.
        Similarly, to guard against effort shift into the deep-water grouper fishery, this proposed rule would reduce the deep-water grouper quota from 1.35 million lb (0.61 million kg), equivalent to 1.60 million lb (0.73 million kg) whole weight, to 1.02 million lb (0.46 million kg) gutted weight.  This reduction is intended primarily to address concern that effort shift from the proposed reductions in allowable red grouper and shallow-water grouper harvest could adversely impact yellowedge grouper, the primary component of the deep-water fishery.  The reduction is intended to ensure that harvest of yellowedge grouper does not exceed the level recommended by the Reef Fish Stock Assessment Panel, 840,000 lb (381,018 kg), the average harvest level during 1986-2001.  Deep-water groupers include speckled hind; yellowedge, misty, Warsaw, and snowy groupers; and scamp after the shallow-water grouper quota is reached.
        Finally, this proposed rule would also establish a quota of 0.44 million lb (0.20 million kg), gutted weight, for all tilefishes in the reef fish management unit, combined (tilefish, goldface tilefish, blackline tilefish, anchor tilefish, and blueline tilefish).  This quota is equal to the average annual harvest during 1996-2000 and would prevent increases in fishing mortality until additional information is available to improve the evaluation of the status of those stocks.
        These actions represent a precautionary approach designed to reduce the probability that a shift in effort from red grouper to other reef fish species would result in an unintended and inappropriate increase in fishing mortality on other reef fish species, some of which are at or near maximum desirable fishing mortality levels.
        Classification
        At this time, NMFS has not determined whether Secretarial Amendment 1, which this proposed rule would implement, is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.  NMFS, in making that determination, will take into account the data, views, and comments received during the comment period on Secretarial Amendment 1.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities.  A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble.  A summary of the analysis follows.
        The Magnuson-Stevens Act provides the statutory basis for the proposed rule.  The proposed rule would establish red grouper biological reference points and stock status criteria; adopt a 10-year red grouper rebuilding plan based on a 3-year interval rebuilding strategy that would include a 9.4 percent reduction in total red grouper harvests for the first 3-year interval; adjust the shallow-water grouper quota by an amount equal to the reduction in the red grouper quota; set the recreational bag limit at two red grouper out of the five aggregate grouper bag limit per person; close the commercial shallow-water grouper fishery when the commercial red grouper quota or the shallow-water grouper quota is reached, whichever comes first; and establish deep-water grouper and tilefish quotas.
        The primary objective of the proposed rule is to optimize the net benefits to the Nation of the shallow-water grouper stocks by rebuilding the red grouper component to a stock level capable of supporting optimum yield.
        The proposed rule contains no changes in record-keeping or compliance requirements.  No duplicative, overlapping, or conflicting Federal rules have been identified.
        This proposed rule would impact both the commercial and recreational participants that traditionally harvest shallow-water grouper species and dealers who receive these species from commercial harvesters.
        There are currently approximately 1,204 active commercial reef fish permits and an unknown number of other permits in the process of being renewed.  Examination of 2000 logbook data showed that of vessels with commercial reef fish permits, 782 vessels in Florida and 207 in other Gulf states landed reef fish with vertical line gear in 2000.  An additional 155 vessels in Florida and 33 in other Gulf states were identified as having landed reef fish using longline gear in 2000.  Furthermore, 55 vessels, all in Florida, reported landing reef fish using fish traps.  For all vessels landing reef fish, a total of 546 vessels participate in the shallow-water grouper fishery on a consistent basis.  Of these vessels, 138 used longline gear, 353 used vertical line gear, and 55 used fish traps.  Within the commercial red grouper fishery, longline gear accounted for 59 percent of landings, handline gear accounted for 24 percent, and fish traps accounted for 16 percent.  The corresponding percentages for the commercial gag are:  25 percent for longline gear, 73 percent for handline gear, and 2 percent for fish traps.  Other gear types account for a minuscule portion of the commercial landings of these species.  These are the two most significant species in the shallow-water grouper fishery.  The measures proposed in this rule would directly or indirectly affect all these vessels.
        Although the proposed rule would directly or indirectly affect all commercial vessels that participate in the fishery, the impacts would affect vessels that operate in the eastern Gulf (Florida) more significantly because the bulk of the grouper fishery is in this area.  Among the Florida vessels, the longline vessels would bear most of the cost of the proposed measures, particularly with respect to red grouper.  High-volume vertical line and fish trap vessels would also bear a disproportionate share of the burden.  Estimates of gross annual receipts per vessel for vessels in the reef fish fishery are as follows: $67,979 for high-volume vessels using vertical line gear in the eastern Gulf; $24,588 for low-volume vessels using vertical line gear in the eastern Gulf; $116,989 for high-volume vessels using bottom longline gear gulfwide; $87,635 for low-volume vessels using bottom longline gear gulfwide; $93,426 for high-volume vessels using fish traps (Florida only); and $86,039 for low-volume vessels using fish traps (Florida only).  Estimates of net annual income per vessel (defined as gross receipts less routine trip costs) for vessels in the reef fish fishery are as follows: $23,822 for high-volume vessels using vertical line gear in the eastern Gulf; $4,479 for low-volume vessels using vertical line gear in the eastern Gulf; $25,452 for high-volume vessels using bottom longline gear gulfwide; $14,978 for low-volume vessels using bottom longline gear gulfwide; $19,409 for high-volume vessels using fish traps (Florida only); and $21,025 for low-volume vessels using fish traps (Florida only).
        The proposed rule would also affect fish dealers that receive groupers by way of purchase, barter, or trade.  About 431 dealers located in the five Gulf states receive groupers.  Of this total, approximately 87 dealers located in Florida would be most directly affected by the proposed rule.  Of these 87 dealers, approximately 54 dealers generally receive less than 10,000 lb (4,536 kg) of grouper per year while 11 dealers generally receive more than 80,000 lb (36,287 kg) of grouper per year.  Among the longline vessels operating in the fishery, more vessels reported sales to dealers in Madiera Beach (54 vessels) and St. Petersburg (34 vessels) than any other locations.  Information on the average number of employees per reef fish dealer is not known.  Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast has been estimated at approximately 700 individuals, both part and full time.  It is assumed that all processors must be dealers, yet a dealer need not be a processor.  Further, processing is a much more labor intensive exercise than dealing, therefore requiring greater employment.  Therefore, it is assumed that total dealer employment is less than 700 individuals.
        The proposed measures for the recreational sector would also affect all for-hire vessels that operate in the reef fish fishery.  As of July 2003, a total of 1,377 reef fish permits had been issued to the recreational for-hire sector, which includes both charter boats and headboats.  Similar to the situation with the commercial sector, most of the effects would be borne by those for-hire vessels that operate in Florida.  This number, however, cannot be determined with certainty since the registration address does not necessarily indicate the area of operation.  Further, identifying the number of vessels dependent upon shallow-water grouper species is not possible given available data.  Based on fees, number of passengers, and number of trips, average annual receipts are estimated at $68,000 for charter vessels and $324,000 for headboats.  Major activity centers for charter boats in Florida are Naples, Fort Myers/Fort Myers Beach, Destin, Panama City/Panama City Beach, Pensacola, and the Florida Keys.  The major activity centers for headboats are Clearwater, Fort Myers/Fort Myers Beach, Destin, Panama City/Panama City Beach, and the Florida Keys.  Keys vessels, however, depend more on king mackerel, billfish, and dolphin than grouper species.  Additional impacts from the alternatives proposed in this amendment would be borne by the extended communities at the activity centers and the businesses therein.  However, these entities cannot be quantified due to lack of sufficient data.

        The Small Business Administration (SBA) considers a commercial fishing business to be a small business entity if the business is independently owned and operated, is not dominant in its field of operation, and has receipts of up to $3.5 million annually.  The benchmark for a small business in the for-hire fishery is a firm with receipts of up to $6 million per year.  The SBA benchmark for a fish dealer or processing facility is a business with fewer than 500 employees.  Given the revenue and employment information provided above, all the business entities potentially affected by the proposed rule are considered small entities.
        The proposed biological reference points and stock status criteria would not directly affect fishery behavior and, thus, would not produce any direct economic impacts.  The proposed quota reductions and associated quota closure for the commercial shallow-water grouper fishery are expected to take effect by mid-November of the first year of implementation.  This quota closure is estimated to reduce annual net revenues by 11 percent for longline vessels, 4 percent for vertical line vessels, and 5 percent for fish trap vessels.  If vessels can successfully increase their landings and revenues more than their costs by increasing their number of trips, net income losses due to the quota closure provision can be partially offset.  However, this would cause the quota to be reached faster every year, inducing a derby that may eventually result in decreases in ex-vessel prices and further erode vessel profits.  The proposed quotas for tilefish and deep-water groupers match the historical commercial harvests for the species so that these particular measures are not expected to reduce the profits of commercial vessels.
        The proposed red grouper bag limit is not expected to substantially affect the revenues of for-hire vessels, although trip cancellations by recreational anglers may occur as a result of the change.  However, only 5 percent of charter vessels operating off the Florida Gulf coast have reported targeting one species, while 36 percent reported targeting three or fewer species, and 90 percent reported targeting eight or fewer species.  About 29 percent of charter vessels have reported not targeting specific species.  None of the headboats in the Florida Gulf target only one species, 60 percent target four or less species, and 41 percent do not target specific species.  Since the proposed bag limit change is specific to red groupers and, therefore, other species may still be targeted or caught, trip cancellations as a result of the red grouper bag limit reduction are expected to be relatively few.  Fishing trip costs of for-hire vessels are also not likely to increase, since these vessels are expected to continue to fish in the same areas they traditionally fish.  Total effects of the proposed rule on the net revenue or profit for the for-hire vessels in Florida, however, cannot be determined with certainty.
        The profit profile for dealers is not known.  The projected reduction in ex-vessel sales ($2.248 million) as a result of the proposed rule equals approximately 11.5 percent of total shallow-water grouper revenues.  It is unlikely, however, that any dealer with substantial business operations would be wholly dependent upon harvests of shallow-water grouper.  Thus, dealer business failure as a result of quota reductions is not expected to be substantial.
        Three alternatives, including the no action alternative, were considered relative to the proposed specification of red grouper maximum sustainable yield.  The proposed alternative would establish red grouper maximum sustainable yield as a range whereas each of the two additional action alternatives specify the reference points alternately as the lower and upper bounds of the proposed range.  Since specification of the maximum sustainable yield is a required component of a fishery management plan, the no-action alternative is not a viable alternative. Although no economic impacts are expected to accrue to either the proposed or alternative specifications, since they merely serve as reference points for stock and fishery evaluation and would not directly affect fishery behavior, the proposed alternative was selected as best accounting for the uncertainty associated with the spawner-recruit relationship for this species.
        Three alternatives, including the no action alternative, were considered relative to the proposed specification of red grouper minimum stock size threshold.  Since specification of the minimum stock size threshold is a required component of a fishery management plan, the no-action alternative is not a viable alternative.  One alternative would establish a more conservative specification of the minimum stock size threshold than the proposed threshold, while another would establish a less conservative threshold.  Although no economic impacts are expected to accrue to either the proposed or alternative specifications, since they merely serve as reference points for stock and fishery evaluation and would not directly affect fishery behavior, the proposed alternative was selected because it follows the recommendations of the NMFS Technical Guidance.
        Four alternatives, including the status quo alternative, were considered relative to the proposed specification of red grouper maximum fishing mortality rate.  One alternative would establish a more conservative specification of the maximum fishing mortality rate, while the other three alternatives would establish a less conservative threshold.  Although no economic impacts are expected to accrue to either the proposed or alternative specifications, since they merely serve as reference points for stock and fishery evaluation, the proposed alternative was selected because it follows the recommendations of the NMFS Technical Guidance.
        Three alternatives, including the no action alternative, were considered relative to the proposed specification of red grouper optimum yield.  Since specification of the optimum yield is a required component of a fishery management plan, the no-action alternative is not a viable alternative.  One alternative would establish a more conservative specification of the threshold, while another would establish a less conservative threshold.  Although no economic impacts are expected to accrue to either the proposed or alternative specifications, since they merely serve as reference points for stock and fishery evaluation, the proposed alternative was selected because it follows the recommendations of the NMFS Technical Guidance.
        Five alternatives, including the no action alternative, were considered relative to the proposed red grouper rebuilding plan.  Since specification of a rebuilding plan is a required component of a fishery management plan for a resource that has been identified as overfished, the no-action alternative is not a viable alternative.  Three alternatives would establish the same recovery period, 10 years, but specify different annual allowable biological catches.  One of these alternatives would allow a higher initial catch than the proposed alternative, thereby inducing lower short-term adverse impacts than the proposed alternative.  This alternative would not, however, require mandatory evaluations of the allowable biological catch every 3 years, as the proposed alternative would, and may not allow harvests to increase during the recovery period, as the proposed alternative would.  Thus, this alternative may result in increased costs over the recovery period relative to the proposed alternative.  The two alternatives that would establish lower catches than the proposed alternative would result in increased adverse impacts relative to the proposed alternative.  An additional alternative would establish a shorter recovery period than the proposed alternative, requiring lower harvest levels, thereby accelerating the recovery schedule but at greater short- term adverse economic impacts.  The proposed alternative, therefore, best accomplishes NMFS' objectives while minimizing adverse economic impacts.

        Three alternatives, including the no action alternative, were considered relative to the proposed reduction in the shallow-water grouper quota by an amount equal to the reduction in the red grouper total allowable catch.  Two alternatives would reduce the shallow-water grouper quota by amounts greater than the proposed alternative and would not, therefore, decrease the adverse impacts of the proposed rule.  The no action alternative could lead to greater mortality of red grouper as a result of catch and release mortality, therefore jeopardizing the recovery of the species.
        Five alternatives, including the proposed alternative and the no-action alternative, were considered relative to commercial quota closure.  The no-action alternative would close the commercial fishery for shallow-water grouper when the aggregate quota is reached.  This would result in less adverse economic impacts than the proposed alternative but would result in excessive red grouper mortality if the red grouper quota is reached before the shallow-water grouper quota is met.  One alternative would close the commercial red grouper fishery when this quota is reached, but allow the fishery for other shallow-water grouper species to continue until the aggregate quota is reached.  While this alternative would result in less short-term adverse economic impacts than the proposed alternative, red grouper would continue to be caught as a bycatch species, thereby resulting in total red grouper mortality exceeding the quota.  In addition to closing the commercial red grouper fishery, another alternative would close fishing for all shallow-water grouper species in certain areas of the Gulf when the red grouper quota is met.  Multiple area closure options were considered, up to and including closure of the entire Gulf, which would match the proposed alternative.  For those options that are not Gulf-wide, the resultant short-term adverse impacts would be less than those of the proposed alternative.  These options would potentially allow, however, excessive mortality of red grouper since red grouper would continue to be caught as bycatch.  The final alternative would allow continued red grouper harvest if the red grouper allocation has not been met when the shallow-water grouper aggregate quota has been achieved.  This alternative, however, would result in the shallow-water grouper aggregate quota being exceeded.  Since these other alternatives would result in either excessive red grouper or excessive total shallow-water grouper mortality, only the proposed alternative is consistent with the NMFS' objectives.
        Four alternatives, including the proposed alternative, were considered relative to fixed shallow-water grouper closed seasons.  The proposed alternative is the status quo February 15 through March 15 closed season on red grouper, gag, and black grouper.  One alternative would replace this closure with a March 1 through May 31 closure, and would apply the closure to either the same three species or all shallow-water grouper species.  This alternative, regardless of the species options, would be more stringent than necessary to reduce red grouper harvests and protect gag spawning aggregations and would result in greater economic losses than the proposed alternative.  A second alternative incorporates the same species options as the first rejected alternative, but does not identify a specific closure period.  Depending upon the period chosen, the resultant impacts could be less than or greater than those of the proposed alternative.  However, the proposed alternative was selected since the period encompassed best meets the dual purpose of reducing red grouper harvest and protecting gag spawning aggregations.  A final alternative would eliminate the fixed closure.  While this alternative would also eliminate the short- term adverse impacts of the proposed alternative, the desired reduction in red grouper harvests and protection of gag would not be accomplished.
        Five alternatives, including the proposed alternative, were considered for commercial grouper trip limits.  The proposed alternative is the status quo no commercial grouper trip limits.  The remaining alternatives would either impose trip limits that applied throughout the year, or would be triggered upon shallow-water grouper harvests reaching 75 percent of the aggregate quota.  Each of these alternatives would result in greater adverse economic impacts than the proposed alternative and are, therefore, not consistent with NMFS' intent.
        Approaches for constraining the recreational grouper harvest to its allocation included closures, bag limits, and minimum size limits.  In addition to the proposed alternative, which would maintain the status quo of no fixed closed season for the recreational grouper fishery, four alternatives were considered relative to recreational closures.  In addition to options for applying the closure to selected species in the shallow-water grouper complex or the entire complex, each of these alternatives specified fixed closed seasons.  One alternative additionally limited the closure to a specific region of the Gulf as opposed to the entire Gulf.  Allowing the recreational fishery to remain open year-round, as would be accomplished by the proposed alternative in combination with appropriate bag and size limits, was determined to produce the least adverse economic impacts on the fishery.  Thus, the proposed alternative was determined to best achieve NMFS' objectives.
        Four alternatives were considered for the recreational grouper bag limit.  While the proposed alternative would establish a limit of two red grouper out of the aggregate five-fish shallow-water grouper bag limit, one alternative would establish a similar limit on gag in addition to the red grouper limit.  This alternative would, thus, be more restrictive than the proposed alternative and increase adverse impacts.  Additionally, this alternative would exceed the protection currently believed necessary for gag.  Another alternative would not change the red grouper limit but would instead reduce the total aggregate bag limit.  Available options, however, would result in either or both reductions in red grouper harvests that are greater than necessary or reductions in the harvest of other grouper species that are not currently justified.  Thus, this alternative would increase the negative impacts on the fishery.  The final alternative, the status quo, would not achieve the required red grouper harvest reductions.  The proposed alternative, therefore, best achieves the necessary harvest reductions at the least adverse impact.
        Four alternatives were considered to each of the proposed alternatives to retain the commercial and recreational red grouper minimum size limits at their current specification of 20 inches (50.8 cm) total length.  The larger minimum size limits, however, lead to harvest reductions that exceed the required reductions, generate increased discard mortality, and increase expected losses relative to the proposed alternatives.  Thus, the proposed alternatives best achieve NMFS' objectives at the least adverse impact.

        With regards to the proposed alternative for specifying the fishing year, the status quo provides that the fishing year for all reef fish begins January 1 each year.  Alternatives to the status quo provide for a fishing year to start after a fixed commercial season for any reef fish or for the grouper fishery only.  These alternatives have no immediate impacts on fishing participants.  Maintaining the status quo, however, provides stability and helps eliminate future uncertainty associated with changes in the start of the open season for various species within the grouper fishery in particular and reef fish fishery in general.
        The proposed rule specifies a quota for tilefish and reduces the deep-water grouper quota from its current level, which has never been met, to the average annual harvest from 1996-2000, with the intent to minimize the potential adverse impacts of participants in the shallow-water grouper fishery shifting effort to the deep-water species.  In addition to options encompassing different quota levels and the status quo alternative, significant alternatives to the proposed rule come in two forms.  One form sets different quota levels for deepwater groupers and tilefish independently, while the other form combines deep-water groupers and tilefish and provides for different quota levels for the aggregate.  The proposed independent quotas for each group  fall between the extremes of the alternative options and, thus,  would be expected to result in less adverse impacts than the lower options, and more adverse impacts than the higher options. However, the proposed quotas are equal to the average commercial harvest for these species, so actual adverse impacts on fishing participants are expected to be minimal.
        Copies of the IRFA and RIR are available upon request (see ADDRESSES).

          List of Subjects in 50 CFR Part 622
          Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

          Dated: February 13, 2004.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

          PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

        1.  The authority citation for part 622 continues to read as follows:

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

        2.  In § 622.39, paragraph (b)(1)(ii) is revised to read as follows:

          § 622.39
          Bag and possession limits.

          (b) * * *
          (1) * * *
          (ii) Groupers, combined, excluding jewfish and Nassau grouper--5 per person per day, but not to exceed 2 red grouper per person per day or 1 speckled hind or 1 Warsaw grouper per vessel per day.

        3.  In § 622.42, paragraphs (a)(1)(ii) and (iii) are revised and paragraph (a)(1)(iv) is added to read as follows:

          § 622.42
          Quotas.

          (a) * * *
          (1) * * *
          (ii) Deep-water groupers (i.e., yellowedge grouper, misty grouper, Warsaw grouper, snowy grouper, and speckled hind), and, after the quota for shallow-water grouper is reached, scamp, combined--1.02 million lb (0.46 million kg), gutted weight, that is, eviscerated but otherwise whole.
          (iii) Shallow-water groupers (i.e., all groupers other than deep-water groupers, jewfish, and Nassau grouper), including scamp before the quota for shallow-water groupers is reached, combined -8.80 million lb (3.99 million kg), gutted weight, that is, eviscerated but otherwise whole.  Within the shallow-water grouper quota there is a separate quota for red grouper--5.31 million lb (2.41 million kg), gutted weight.  When either the shallow-water grouper quota or the red grouper quota is reached, the entire shallow-water grouper fishery will be closed and the closure provisions of § 622.43(a) introductory text and § 622.43(a)(1)(i) apply to the entire shallow-water grouper fishery.
          (iv) Tilefishes (i.e., tilefish and goldface, blackline, anchor, and blueline tilefish) combined--0.44 million lb (0.20 million kg), gutted weight, that is, eviscerated but otherwise whole.

      [FR Doc. 04-3754 Filed 2-19-04; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R8-ES-2010-0093; MO 92210-0-0009]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Revise Critical Habitat for Vernal Pool Fairy Shrimp and Vernal Pool Tadpole Shrimp

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding to revise critical habitat.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to revise critical habitat for vernal pool fairy shrimp (Branchinecta lynchi) and vernal pool tadpole shrimp (Lepidurus packardi) under the Endangered Species Act of 1973, as amended (Act). Following a review of the petition, we find that the petition does not present substantial scientific information indicating that revision of the critical habitat for vernal pool fairy shrimp and vernal pool tadpole shrimp may be warranted. Therefore, with the publication of this notice, we have determined that a 12-month finding on this petition is not warranted and will not be conducted.

          DATES:
          The finding announced in this document was made on February 10, 2011. You may submit new information concerning this species or its habitat for our consideration at any time.

          ADDRESSES:
          This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R8-ES-2010-0093]. Supporting documentation we used in preparing this finding is available for public inspection, by appointment, during normal business hours at the Sacramento Fish and Wildlife Office, 2800 Cottage Way W-2605, Sacramento, CA 95825. New information, material, comments, or questions concerning this species or its habitat may be submitted to us at any time.

          FOR FURTHER INFORMATION CONTACT:
          Susan Moore, Field Office Supervisor, or Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way W-2605, Sacramento, CA 95825, by telephone at 916-414-6600, or by facsimile at 916-414-6713. People who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to revise critical habitat for a species presents substantial scientific information indicating that the revision may be warranted. In determining whether substantial information exists, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. Our listing regulations at 50 CFR 424.14(c)(2)(i) further require that, in making a finding on a petition to revise critical habitat, we consider whether the petition contains information indicating that areas petitioned to be added to critical habitat contain the physical and biological features essential to, and that may require special management to provide for, the conservation of the species.
        Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. The Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

        To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. If we find that a petition presents substantial information indicating that the revision may be warranted, we are required to determine how we intend to proceed with the requested revision within 12 months after receiving the petition and promptly publish notice of such intention in the Federal Register.
        Petition History

        On August 29, 2008, we received a petition dated August 28, 2008, from ECORP Consulting, Inc., on behalf of Conservation Resources, requesting that we revise critical habitat for vernal pool fairy shrimp (Branchinecta lynchi) and vernal pool tadpole shrimp (Lepidurus packardi). The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required in 50 CFR 424.14(a). The petitioners did not use the current unit numbers for the critical habitat units when referring to critical habitat units; however, the map and location description provided in the petition indicate that the critical habitat units referred to are critical habitat Unit 14A for the vernal pool fairy shrimp and Unit 9B for the vernal pool tadpole shrimp designated in the final rule published in the Federal Register on February 10, 2006 (71 FR 7119-7120, 7153, 7194). The petition requested that, pursuant to the Act, the Service modify the boundaries of these units to include the northern 2,800 acres (ac) (1,133 hectares (ha)) of the parcel referred to as Gill Ranch (ECORP 2008, p. 1).
        Previous Federal Actions

        The vernal pool fairy shrimp and the vernal pool tadpole shrimp were listed as threatened and endangered, respectively, on September 19, 1994 (59 FR 48136). Critical habitat for 4 vernal pool crustaceans and 11 vernal pool plant species in California and southern Oregon, including the vernal pool fairy shrimp and vernal pool tadpole shrimp, was originally designated in a final rule published in the Federal Register on August 6, 2003 (68 FR 46684).
        The 2003 final critical habitat for the 4 vernal pool crustaceans and 11 vernal pool plant species in California and southern Oregon totaled approximately 744,070 ac (301,114 ha), and excluded 5 entire counties (Butte, Madera, Merced, Sacramento, and Solano Counties) from the designation of critical habitat due to economic reasons under section 4(b)(2) of the Act. In total, approximately 494,583 ac (200,151 ha) of critical habitat was identified within the five counties, but later excluded.

        In January 2004, the Butte Environmental Council and several other organizations filed a complaint alleging that we violated the Act (Butte Environmental Council et al. v. Norton. et al., Case No. CIV S-04-0096 WBS KJM (E.D. Cal.).) On October 29, 2004, the court signed a Memorandum and Order in that case remanding the final designation to the Service. In particular, the court ordered us to: (1) Reconsider the noneconomic exclusions from the final designation of critical habitat, and publish a new final determination as to those lands within 120 days; and (2) reconsider the economic exclusion of the five California counties based on potential economic impacts, and publish a new final determination no later than July 31, 2005.

        A final rule for critical habitat reevaluating the noneconomic exclusions from the 2003 final rule was published in the Federal Register on March 8, 2005 (70 FR 11140), and a final rule evaluating economic exclusions from the 2003 final rule was published in the Federal Register on August 11, 2005 (70 FR 46924). A final rule containing administrative revisions with species-by-unit designations was published in the Federal Register on February 10, 2006 (71 FR 7118). This final rule provided 35 critical habitat units designated for the vernal pool fairy shrimp totaling 597,821 ac (241,930 ha), and 18 critical habitat units designated for the vernal pool tadpole shrimp totaling 228,785 ac (92,586 ha). The March 8, 2005, confirmation of the noneconomic exclusions (70 FR 11140) addressed the first requirement of the October 2004 court-ordered remand, while the August 11, 2005, final critical habitat rule (70 FR 46924) addressing the economic exclusions under section 4(b)(2) of the Act addressed the second requirement of the October 2004 court-ordered remand.

        The August 11, 2005, final critical habitat rule identified two overlapping units for vernal pool tadpole shrimp and vernal pool fairy shrimp. These two overlapping units were specifically identified in the February 10, 2006, Federal Register (71 FR 7151-7153, 7192-7194) for each species as units 9A and 9B for vernal pool tadpole shrimp and units 14A and 14B for vernal pool fairy shrimp. Approximately 9,481 ac (3,837 ha) of habitat determined to contain the physical and biological features essential to the conservation of the vernal pool tadpole shrimp and vernal pool fairy shrimp within these overlapping units was excluded from the final designation based on economic impacts. See Application of Section 4(b)(2)—Economic Exclusion to 23 Census Tracts section of the August 11, 2005, Federal Register (70 FR 46949-46952), for our rationale on the exclusion of these areas.

        On May 31, 2007, the Service published a clarification of the economic and noneconomic exclusions for the 2005 final rule designating critical habitat for 4 vernal pool crustaceans and 11 vernal pool plants in California and southern Oregon (72 FR 30279), resulting in a final judgment from the court in favor of the Service. The Home Builders Association of Northern California and other industry groups appealed the judgment; however, on August 9, 2010, the Ninth Circuit issued a decision in favor of the Service, upholding the critical habitat designations for 15 listed vernal pool species (Home Builders Association of Northern California v. Norton. et al. (Case No. CV-05-00629-WBS (E.D. Cal.))).
        Species Information

        For current information on the biology, status, and habitat needs of the vernal pool fairy shrimp and vernal pool tadpole shrimp, refer to the Service's 5-Year Review of the vernal pool fairy shrimp (Service 2007b), the 5-Year Review of the vernal pool tadpole shrimp (Service 2007c), and the Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon (Service 2005) available on the Internet at http://www.fws.gov/sacramento/es/5_year_reviews.htm and http://www.fws.gov/sacramento/es/recovery_plans/vp_recovery_plan_links.htm.

        Evaluation of Information for This Finding
        In making this 90-day finding, we evaluated whether information regarding the revision of critical habitat for the vernal pool fairy shrimp and vernal pool tadpole shrimp, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petition action may be warranted. Our evaluation of this information is presented below.
        The petitioner seeks to revise the critical habitat designation by expanding unit 14A for vernal pool fairy shrimp and unit 9B for vernal pool tadpole shrimp to include approximately an additional 2,800 ac (1,133 ha), located within the Cosumnes/Rancho Seco Core Area (Sacramento County) in the Southeastern Sacramento Valley Vernal Pool Region (Service 2005). The 2,800-ac (1,133-ha) area is part of Gill Ranch, which is largely dedicated to the conservation of vernal pools and listed vernal pool species. The petition summarizes the primary constituent elements (PCEs) for vernal pool fairy shrimp and vernal pool tadpole shrimp as presented in the February 10, 2006, administrative revisions (71 FR 7142, 7183). The petition states that the 2,800 ac (1,133 ha) addressed in the petition contain the PCEs and support numerous wetland features that are essential for reproduction, germination [sic], hatching, maturation, feeding, shelter, and dispersal of vernal pool crustaceans (ECORP 2008, p. 4-5). The information in the petition is consistent with information in our files. We agree that this area contains the physical and biological features essential to the conservation of the species. However, the 2,800-ac (1,133-ha) parcel was originally designated as critical habitat in the August 6, 2003, final rule (68 FR 46684), but was later excluded from the critical habitat designation in the August 11, 2005, final rule (70 FR 46924), when the Secretary decided to exercise his discretion under section 4(b)(2) of the Act to exclude this parcel due to economic impacts. The petition does not contain any information suggesting that the exclusion due to economic impacts was done in error, or that the economic analysis was flawed.
        Finding
        In making this finding, we relied on information provided by the petitioners, sources cited by the petitioners, and information readily available in our files. We evaluated the information in accordance with 50 CFR 424.14(c). Our process for making this 90-day finding under section 4(b)(3)(D) of the Act and 50 CFR 424.14(c) of our regulations is limited to a determination of whether the information in the petition meets the “substantial scientific information” threshold.
        We find that the petition does not present substantial information to indicate that revision of critical habitat to include the proposed property may be warranted. The Service agrees that the property contains the PCEs, and it was designated critical habitat in the 2003 final rule (68 FR 46684). However, the 2,800 ac (1,133 ha) were excluded for economic reasons in the 2005 final rule (70 FR 46924) under section 4(b)(2) of the Act; the petition presents no information indicating that the rule excluding this property from critical habitat requires revision or that the methodology used in determining potential economic impacts was invalid.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0093 and upon request from the Sacramento Fish and Wildlife Office (see
          FOR FURTHER INFORMATION CONTACT).
        Author

        The primary authors of this notice are the staff members of the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see
          FOR FURTHER INFORMATION CONTACT).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: January 28, 2011.
          Thomas L. Strickland,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2011-2882 Filed 2-9-11; 8:45 am]
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