AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

This proposed rule would adjust quotas and retention limits, and establish opening dates for the 2020 fishing year for the Atlantic commercial shark fisheries. Quotas would be adjusted as required or allowable based on any overharvests and/or underharvests experienced during the 2019 fishing year. In addition, NMFS proposes opening dates and commercial retention limits based on adaptive management measures to provide, to the extent practicable, fishing opportunities for commercial shark fishermen in all regions and areas. The proposed measures could affect fishing opportunities for commercial shark fishermen in the northwestern Atlantic Ocean, the Gulf of Mexico, and the Caribbean Sea.

DATES:

Written comments must be received by October 10, 2019.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2019-0091, by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/​#!docketDetail;​D=​NOAA-NMFS-2019-0091, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Guy DuBeck, NMFS/SF1, 1315 East-West Highway, National Marine Fisheries Service, SSMC3, Silver Spring, MD 20910.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

Copies of this proposed rule and supporting documents are available from the HMS Management Division website at https://www.fisheries.noaa.gov/​topic/​atlantic-highly-migratory-species or by contacting Guy DuBeck by phone at 301-427-8503.

FOR FURTHER INFORMATION CONTACT:

Guy DuBeck or Karyl Brewster-Geisz at 301-427-8503.

SUPPLEMENTARY INFORMATION:

Background

The Atlantic commercial shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. For the Atlantic commercial shark fisheries, the 2006 Consolidated HMS FMP and its amendments established commercial shark retention limits, commercial quotas for species and management groups, and accounting measures for underharvests and overharvests for the shark fisheries. The FMP also includes adaptive management measures, such as flexible opening dates for the fishing year and inseason adjustments to shark trip limits, which provide management flexibility in furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.

2020 Proposed Commercial Shark Quotas

This proposed rule would adjust the quota levels for the different shark stocks and management groups for the 2019 Atlantic commercial shark fishing year based on overharvests and underharvests that occurred during the 2019 fishing year, consistent with existing regulations at 50 CFR 635.27(b). Overharvests and underharvests are accounted for in the same region, sub-region, and/or fishery in which they occurred the following year, except that large overharvests may be spread over a number of subsequent fishing years up to a maximum of five years. Shark stocks that are overfished, have overfishing occurring, or have an unknown status, as well as management groups that contain one or more stocks that are overfished, have overfishing occurring, or have an unknown stock status, will not have underharvest carried over in the following year. Stocks or management groups that are not overfished and have no overfishing occurring may have any underharvest carried over in the following year, up to 50 percent of the base annual quota.

Based on 2019 harvests to date, and after considering catch rates and landings from previous years, NMFS proposes to adjust the 2020 quotas for certain management groups as shown in Table 1. In the final rule, any adjustments to the quotas will be based on how the quotas are affected by new data from dealer reports received by late October to mid-November 2019. Thus, all of the 2020 proposed quotas for the respective stocks and management groups will be subject to further adjustment after NMFS considers the dealer reports through late October to mid-November. NMFS anticipates that all dealer reports that are received after the late October to mid-November date will be used to adjust 2021 quotas, as appropriate.

Because the Gulf of Mexico blacktip shark management group and smoothhound shark management groups in the Gulf of Mexico and Atlantic regions are not overfished, and overfishing is not occurring, available underharvest (up to 50 percent of the base annual quota) from the 2019 fishing year for these management groups may be applied to the respective 2020 quotas. NMFS proposes to account for any underharvest of Gulf of Mexico blacktip sharks by dividing underharvest between the eastern and western Gulf of Mexico sub-regional quotas based on the sub-regional quota split percentage implemented in Amendment 6 to the 2006 Consolidated Atlantic HMS FMP (80 FR 50073; August 18, 2015).

For the sandbar shark, aggregated large coastal shark (LCS), hammerhead shark, non-blacknose small coastal shark (SCS), blacknose shark, blue shark, porbeagle shark, and pelagic shark (other than porbeagle or blue sharks) management groups, the 2019 underharvests cannot be carried over to the 2020 fishing year because those stocks or management groups are overfished, are experiencing overfishing, or have an unknown status. There also were no overharvests in these management groups. Thus, NMFS proposes that quotas for these management groups be equal to the annual base quota without adjustment, although the final quotas will be based on current data at the time the final rule is prepared.

The proposed 2020 quotas by species and management group are summarized in Table 1; the description of the calculations for each stock and management group can be found below.

1. Proposed 2020 Quotas for the Gulf of Mexico Region Shark Management Groups

In a recent action, NMFS transferred 5 mt dw of the blacktip shark quota, 50 mt dw of the aggregated LCS quota, and 8 mt dw of the hammerhead shark quota from the western Gulf of Mexico sub-region to the eastern Gulf of Mexico sub-region on September 12, 2019. This quota transfer would not impact the proposed actions in this rulemaking. The 2020 proposed commercial quota for blacktip sharks in the western Gulf of Mexico sub-region is 358.9 mt dw (792,161lb dw) and the eastern Gulf of Mexico sub-region is 39.0 mt dw (86,066.7 lb dw; Table 1). As of September 13, 2019, preliminary reported landings for blacktip sharks in the western Gulf of Mexico sub-region were at 25 percent (62.2 mt dw) of their 2019 quota levels (250.8 mt dw), and blacktip sharks in the eastern Gulf of Mexico sub-region were at 22 percent (7.2 mt dw) of their 2019 quota levels (32.7 mt dw). Reported landings in both sub-regions have not exceeded the 2019 quota to date, and blacktip shark landings in both sub-regions are lower than usual. Gulf of Mexico blacktip sharks have not been declared to be overfished, to have overfishing occurring, or to have an unknown status. Pursuant to § 635.27(b)(2)(ii), underharvests for blacktip sharks within the Gulf of Mexico region therefore may be applied to the 2019 quotas, up to 50 percent of the base annual quota. Additionally, any underharvest would be divided between the two sub-regions, based on the percentages that are allocated to each sub-region, which are set forth in § 635.27(b)(1)(ii)(C). To date, the overall Gulf of Mexico blacktip shark management group is underharvested by 214.1 mt dw (472,114 lb dw). Accordingly, NMFS proposed to increase the western Gulf of Mexico blacktip shark quota by 127.9 mt dw or 90.2 percent of the underharvest, while the eastern Gulf of Mexico blacktip shark sub-regional quota would increase by 13.9 mt dw, or 9.8 percent of the underharvest (Table 1). Thus, the proposed western sub-regional Gulf of Mexico blacktip shark commercial quota is 358.9 mt dw (792,161 lb dw), and the proposed eastern sub-regional Gulf of Mexico blacktip shark commercial quota is 39.0 mt dw (86,066.7 lb dw).

The 2020 proposed commercial quota for aggregated LCS in the western Gulf of Mexico sub-region is 72.0 mt dw (141,176 lb dw), and the eastern Gulf of Mexico sub-region is 85.5 mt dw (188,593 lb dw; Table 1). As of September 13, 2019, preliminary reported landings for aggregated LCS in the western Gulf of Mexico sub-region were at 53 percent (11.7 mt dw) of the 2019 quota (22.0 mt dw), while the aggregated LCS in the eastern Gulf of Mexico sub-region were at 45 percent (61.3 mt dw) of their 2019 quota levels (135.5 mt dw). NMFS is proposing to adjust the 2019 aggregated LCS quota in the western Gulf of Mexico sub-region to account for an 8 mt dw overharvest that occurred in 2018. While the quota was still under the limit when the 2019 Atlantic Shark Commercial Fishing Year final rule was released (83 FR 60777; November 27, 2018), the quota was exceeded by the end of the 2019 calendar year, as later revealed by updated data received in 2019. Although NMFS generally accounts for later-reported overages in the subsequent year (here, 2020), NMFS has, under certain circumstances, re-adjusted the subject year quota if appropriate. Given that 2019 landings are low, current catch rates indicate that the 2019 quota will not be fully landed, and that there is time to further adjust this approach, if needed, in the final rule in response to any updated landings information. NMFS is proposing that the 2019 sub-regional quota be adjusted to account for the 2018 overharvest, and is proposing that the 2020 quota for the aggregated LCS in the western Gulf of Mexico be equal to the annual base quota without adjustment. NMFS proposes to re-adjust the western Gulf of Mexico sub-regional quota by 8 mt dw (17,548 lb dw) from the 2019 quota. If catch rates do increase, and the revised 2019 sub-regional quota is exceeded, then NMFS would, in the final rule, reduce the 2020 quota by that overharvest. Based on preliminary estimates and catch rates from previous years, and consistent with the current regulations at § 635.27(b)(2), NMFS proposes that the 2020 quota for aggregated LCS in the eastern Gulf of Mexico sub-region be equal to the annual base quota without adjustment, because the overall regional quota has not been overharvested and because underharvests cannot be carried over due to stock status.

The 2020 proposed commercial quotas for hammerhead sharks in the eastern Gulf of Mexico sub-region and western Gulf of Mexico sub-region are 11.9 mt dw (26,301 lb dw) and 13.4 mt dw (29,421 lb dw), respectively (Table 1). As of September 13, 2019, preliminary reported landings for hammerhead sharks in the western Gulf of Mexico sub-region were less than 12 percent (<0.5 mt dw) of their 2019 quota levels (3.9 mt dw), while landings of hammerhead sharks in the eastern Gulf of Mexico sub-region were at 43 percent (9.2 mt dw) of their 2019 quota levels (21.4 mt dw). Reported landings from both Gulf of Mexico and Atlantic regions have not exceeded the 2019 overall hammerhead quota to date. Given the overfished status of the scalloped hammerhead shark, the hammerhead shark quota cannot be adjusted for any underharvests. Therefore, based on both preliminary estimates and catch rates from previous years and the fact that the 2019 overall hammerhead shark quota has not been overharvested to date, and consistent with the current regulations at § 635.27(b)(2)(ii), NMFS proposes that the 2020 quotas for hammerhead sharks in the western Gulf of Mexico and eastern Gulf of Mexico sub-regions be equal to their annual base quotas without adjustment.

The 2020 proposed commercial quota for non-blacknose SCS in the Gulf of Mexico region is 112.6 mt dw (248,215 lb dw). As of September 13, 2019, preliminary reported landings of non-blacknose SCS were at 31 percent (34.5 mt dw) of their 2019 quota level (112.6 mt dw) in the Gulf of Mexico region. Reported landings have not exceeded the 2019 quota to date. Given the unknown status of bonnethead sharks within the Gulf of Mexico non-blacknose SCS management group, underharvests cannot be carried forward, pursuant to § 635.27(b)(2)(ii). Under current regulations at § 635.27(b)(2), underharvests cannot be carried over due to stock status. Based on both preliminary estimates and catch rates from previous years, and because there have not been any overharvests, NMFS proposes that the 2020 quota for non-blacknose SCS in the Gulf of Mexico region be equal to the annual base quota without adjustment. There is no allowable harvest of blacknose sharks in the Gulf of Mexico region.

The 2020 proposed commercial quota for smoothhound sharks in the Gulf of Mexico region is 504.6 mt dw (1,112,441 lb dw). As of September 13, 2019, preliminary reported landings of smoothhound sharks were less than 5 percent (<4.9 mt dw) in the Gulf of Mexico region. Gulf of Mexico smoothhound sharks have not been declared to be overfished, to have overfishing occurring, or to have an unknown status. Pursuant to § 635.27(b)(2)(ii), underharvests for smoothhound sharks within the Gulf of Mexico region therefore could be applied to the 2020 quotas up to 50 percent of the base annual quota. Accordingly, NMFS proposes to increase the 2020 Gulf of Mexico smoothhound shark quota to adjust for anticipated underharvests in 2019 as allowed. The proposed 2020 adjusted base annual quota for Gulf of Mexico smoothhound sharks is 504.6 mt dw (336.4 mt dw) annual base quota + 168.2 mt dw 2019 underharvest = 504.6 mt dw 2020 adjusted annual quota).

2. Proposed 2020 Quotas for the Atlantic Region Shark Management Groups

The 2020 proposed commercial quota for aggregated LCS in the Atlantic region is 168.9 mt dw (372,552 lb dw). As of September 13, 2019, the aggregated LCS fishery in the Atlantic region is still open, and preliminary landings indicate that only 20 percent of the quota, or 34.5 mt dw, has been harvested. Given the unknown status of some of the shark species within the Atlantic aggregated LCS management group, underharvests cannot be carried over pursuant to § 635.27(b)(2)(ii). Therefore, based on both preliminary estimates and catch rates from previous years, and consistent with current regulations at § 635.27(b)(2), NMFS proposes that the 2020 quota for aggregated LCS in the Atlantic region be equal to the annual base quota without adjustment, because there have not been any overharvests, and underharvests cannot be carried over due to stock status.ey End:

The 2020 proposed commercial quota for hammerhead sharks in the Atlantic region is 27.1 mt dw (59,736 lb dw). Currently, the hammerhead shark fishery in the Atlantic region is still open and preliminary landings as of September 13, 2019, indicate that 34 percent of the Atlantic regional quota, or 9.3 mt dw, has been harvested. Reported landings from both Gulf of Mexico and Atlantic regions have not exceeded the 2019 overall hammerhead quota to date. Given the overfished status of hammerhead sharks, underharvests cannot be carried forward pursuant to § 635.27(b)(2)(ii). Therefore, based on both preliminary estimates and catch rates from previous years, and consistent with the current regulations at § 635.27(b)(2), NMFS proposes that the 2020 quota for hammerhead sharks in the Atlantic region be equal to the annual base quota without adjustment, because the overall hammerhead shark quota has not been overharvested, and because underharvests cannot be carried over due to stock status.

The 2020 proposed commercial quota for non-blacknose SCS in the Atlantic region is 264.1 mt dw (582,333 lb dw). As of September 13, 2019, preliminary reported landings of non-blacknose SCS were at 32 percent (83.8 mt dw) of their 2019 quota level in the Atlantic region. Reported landings have not exceeded the 2019 quota to date. Given the unknown status of bonnethead sharks within the Atlantic non-blacknose SCS management group, underharvests cannot be carried forward pursuant to § 635.27(b)(2)(ii). Therefore, based on preliminary estimates of catch rates from previous years, and consistent with the current regulations at § 635.27(b)(2), NMFS proposes that the 2020 quota for non-blacknose SCS in the Atlantic region be equal to the annual base quota without adjustment, because there have not been any overharvests, and because underharvests cannot be carried over due to stock status.

The 2019 proposed commercial quota for blacknose sharks in the Atlantic region is 17.2 mt dw (37,921 lb dw). This quota is available in the Atlantic region only for those vessels operating south of 34° N latitude. North of 34° N latitude, retention, landing, or sale of blacknose sharks is prohibited. As of September 13, 2019, preliminary reported landings of blacknose sharks were at 46 percent (7.9 mt dw) of their 2019 quota levels in the Atlantic region. Reported landings have not exceeded the 2019 quota to date. Pursuant to § 635.27(b)(2), because blacknose sharks have been declared to be overfished with overfishing occurring in the Atlantic region, NMFS could not carry forward the remaining underharvest. Therefore, NMFS proposes that the 2020 Atlantic blacknose shark quota be equal to the annual base quota without adjustment.

The 2020 proposed commercial quota for smoothhound sharks in the Atlantic region is 1,802.6 mt dw (3,973,902 lb dw). As of September 13, 2019, preliminary reported landings of smoothhound sharks were at 16 percent (279.6 mt dw) of their 2019 quota levels in the Atlantic region. Atlantic smoothhound sharks have not been declared to be overfished, to have overfishing occurring, or to have an unknown status. Pursuant to § 635.27(b)(2)(ii), underharvests for smoothhound sharks within the Atlantic region therefore could be applied to the 2020 quotas up to 50 percent of the base annual quota. Accordingly, NMFS proposes to increase the 2020 Atlantic smoothhound shark quota to adjust for anticipated underharvests in 2019 as allowed. The proposed 2020 adjusted base annual quota for Atlantic smoothhound sharks is 1,802.6 mt dw (1,201.7 mt dw annual base quota + 600.9 mt dw 2019 underharvest = 1,802.6 mt dw 2020 adjusted annual quota).

3. Proposed 2020 Quotas for Shark Management Groups With No Regional Quotas

The 2020 proposed commercial quotas within the shark research fishery are 50 mt dw (110,230 lb dw) for research LCS and 90.7 mt dw (199,943 lb dw) for sandbar sharks. Within the shark research fishery, as of September 13, 2019, preliminary reported landings of research LCS were at 20 percent (10.1 mt dw) of their 2019 quota levels, and sandbar shark reported landings were at 56 percent (50.6 mt dw) of their 2019 quota levels. Reported landings have not exceeded the 2019 quotas to date. Under § 635.27(b)(2)(ii), because sandbar sharks and scalloped hammerhead sharks within the research LCS management group are either not overfished or overfishing is not occurring, underharvests for these management groups cannot be carried forward to the 2020 quotas. Therefore, based on preliminary estimates, and consistent with the current regulations at § 635.27(b)(2), NMFS proposes that the 2020 quota in the shark research fishery be equal to the annual base quota without adjustment because there have not been any overharvests, and because underharvests cannot be carried over due to stock status.

The 2020 proposed commercial quotas for blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle or blue sharks) are 273.0 mt dw (601,856 lb dw), 1.7 mt dw (3,748 lb dw), and 488.0 mt dw (1,075,856 lb dw), respectively. As of September 13, 2019, there were no preliminary reported landings of blue sharks, porbeagle shark reported landings were at <33 percent (<0.5 mt dw) of their 2019 quota levels, and landings of pelagic sharks (other than porbeagle and blue sharks) were at 6 percent (28.6 mt dw) of their 2019 quota level (488.0 mt dw). Given that these pelagic species are overfished, have overfishing occurring, or have an unknown status, underharvests cannot be carried forward pursuant to § 635.27(b)(2)(ii). Therefore, based on preliminary estimates and consistent with the current regulations at § 635.27(b)(2), NMFS proposes that the 2020 quotas for blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle and blue sharks) be equal to their annual base quotas without adjustment, because there have not been any overharvests and because underharvests cannot be carried over due to stock status.

4. Proposed Opening Dates and Retention Limits for the 2020 Atlantic Commercial Shark Fishing Year

For each fishery, NMFS considered the seven “Opening Commercial Fishing Season Criteria” listed at § 635.27(b)(3). The criteria includes factors such as the available annual quotas for the current fishing season, estimated season length and average weekly catch rates from previous years, length of the season and fishery participation in past years, impacts to accomplishing objectives of the 2006 Consolidated Atlantic HMS FMP and its amendments, temporal variation in behavior or biology of target species (e.g., seasonal distribution or abundance), impact of catch rates in one region on another, and effects of delayed openings.

NMFS applied the Opening Commercial Fishing Season Criteria by examining the overharvests and underharvests of the different management groups in the 2019 fishing year to determine the likely effects of the proposed commercial quotas for 2020 on shark stocks and fishermen across regional and sub-regional fishing areas. NMFS also examined the potential season length and previous catch rates to ensure, to the extent practicable, that equitable fishing opportunities be provided to fishermen in all areas. Lastly, NMFS examined the seasonal variation of the different species/management groups and the effects on fishing opportunities.

NMFS also considered the six “inseason trip limit adjustment criteria” listed at § 635.24(a)(8) for directed shark limited access permit holders intending to land LCS other than sandbar sharks. Those criteria are: The amount of remaining shark quota in the relevant area or region, to date, based on dealer reports; the catch rates of the relevant shark species/complexes, to date, based on dealer reports; the estimated date of fishery closure based on when the landings are projected to reach 80-percent of the available overall, regional, and/or sub-regional quota, if the fishery's landings are not projected to reach 100 percent of the applicable quota before the end of the season, or when the season of a quota-linked management group is closed; effects of the adjustment on accomplishing the objectives of the 2006 Consolidated Atlantic HMS FMP and its amendments; variations in seasonal distribution, abundance, or migratory patterns of the relevant shark species based on scientific and fishery-based knowledge; and/or effects of catch rates in one part of a region precluding vessels in another part of that region from having a reasonable opportunity to harvest a portion of the relevant quota.

After considering all these criteria, NMFS is proposing to open the 2020 Atlantic commercial shark fishing season for all shark management groups in the northwestern Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, on or about January 1, 2020, after the publication of the final rule for this action (Table 2). NMFS is also proposing to start the 2020 commercial shark fishing season with the commercial retention limit of 45 LCS other than sandbar sharks per vessel per trip in both the eastern and western Gulf of Mexico sub-regions, and a commercial retention limit of 25 LCS other than sandbar sharks per vessel per trip in the Atlantic region (Table 2). NMFS will consider public comments received during the current year and catch rates from this year. Any retention limits that are proposed could change as a result of public comments as well as catch rates and landings information based on updated data available when drafting the final rule.

In the Gulf of Mexico region, NMFS proposes opening the fishing season on or about January 1, 2020, for the aggregated LCS, blacktip sharks, and hammerhead shark management groups with the commercial retention limits of 45 LCS other than sandbar sharks per vessel per trip for directed shark permit holders in the eastern and western sub-region. This opening date and retention limit combination would provide, to the extent practicable, equitable opportunities across the fisheries management sub-regions. This opening date takes into account all the season opening criteria listed in § 635.27(b)(3), and particularly the criteria that requires NMFS to consider the length of the season for the different species and/or management group in the previous years (§ 635.27(b)(3)(ii) and (iii)) and whether fishermen were able to participate in the fishery in those years (§ 635.27(b)(3)(v)). The proposed commercial retention limits take into account the criteria listed in § 635.24(a)(8), and particularly the criterion that requires NMFS to consider the catch rates of the relevant shark species/complexes based on dealer reports to date (§ 635.24(a)(8)(ii)). NMFS may also adjust the retention limit in the Gulf of Mexico region throughout the season to ensure fishermen in all parts of the region have an opportunity to harvest aggregated LCS, blacktip sharks, and hammerhead sharks (see the criteria listed at § 635.27(b)(3)(v) and § 635.24(a)(8)(ii), (v), and (vi)). For both the eastern and western Gulf of Mexico sub-regions combined, dealer reports received through September 13, 2019, indicate that 24 percent (69.4 mt dw), 46 percent (73.0 mt dw), and less than 40 percent (<10.0 mt dw) of the available blacktip, aggregated LCS, and hammerhead shark quotas, respectively, has been harvested. Therefore, for 2020, NMFS is considering opening the both the western and eastern Gulf of Mexico sub-regions at 45 sharks per trip, but may also consider a higher starting retention limit for the entire region of 55 sharks per trip to increase the harvest level and ensure the management group can maximize its quota. NMFS is asking for comments specifically on this potential increase in retention limits.

In the Atlantic region, NMFS proposes opening the aggregated LCS and hammerhead shark management groups on or about January 1, 2020. This opening date is the same date that these management groups opened in 2019. As described below, this opening date also takes into account all the criteria listed in § 635.27(b)(3), and particularly the criterion that NMFS consider the effects of catch rates in one part of a region precluding vessels in another part of that region from having a reasonable opportunity to harvest a portion of the different species and/or management quotas (§ 635.27(b)(3)(v)). The 2019 data indicates that an opening date of January 1, coupled with inseason adjustments to the retention limit, provided a reasonable opportunity for fishermen in every part of each region to harvest a portion of the available quotas (§ 635.27(b)(3)(i)) while accounting for variations in seasonal distribution of the different species in the management groups (§ 635.27(b)(3)(iv)). In 2019, when the aggregated LCS quota was harvested too quickly, NMFS reduced the retention limit to three sharks per trip (April 2, 2019; 84 FR 12524) to allow fishermen in the North Atlantic an opportunity to fish later in the year when sharks are available in the North Atlantic area (see the criteria at § 635.24(a)(3)(i), (ii), (v), and (vi)). NMFS then increased the retention limit to 36 sharks per trip on June 25, 2019 (84 FR 29808), to increase fishing opportunities for all fishermen across the Atlantic region. Because the quotas we propose for 2020 are the same as the quotas in 2019, NMFS proposes that the season lengths and therefore the participation of various fishermen throughout the region, would be similar in 2020 (§ 635.27(b)(3)(ii) and (iii)). Based on the recent performance of the fishery, the January 1 opening date appears to meet the objectives of the 2006 Consolidated Atlantic HMS FMP and its amendments (§ 635.27(b)(3)(vi)). However, after reviewing landings data from 2016 to the present, NMFS has seen a decrease in landings over time in the aggregated LCS management group. Because of the decrease in landings, NMFS is also proposing changing the percent of quotas harvested at which it considers adjusting the retention limit. Rather than 20 percent, NMFS would consider adjustments at a higher percentage to allow fishermen in the Atlantic region to more fully utilize the quota. While this is not a regulatory provision, it is a management benchmark NMFS has used (and announced as part of the rulemaking process) in previous seasons to help determine at which point it will consider an inseason action to adjust the retention limits. NMFS is asking for comment specifically on this potential change in the benchmark (percent of quota harvested) at which NMFS considers an inseason adjustment.

In addition, for the aggregated LCS and hammerhead shark management groups in the Atlantic region, NMFS proposes opening the fishing year with the commercial retention limit for directed shark limited access permit holders of 25 LCS other than sandbar sharks per vessel per trip. This retention limit should allow fishermen to harvest some of the 2020 quota at the beginning of the year when sharks are more prevalent in the South Atlantic area (see the criteria at § 635.24(a)(3)(i), (ii), (v), and (vi)). As was done in 2019, if it appears that the quota is being harvested too quickly to allow directed fishermen throughout the entire region an opportunity to fish and ensure enough quota remains until later in the year, NMFS would reduce the commercial retention limits to incidental levels (3 LCS other than sandbar sharks per vessel per trip) or another level calculated to reduce the harvest of LCS taking into account § 635.27(b)(3) and the inseason trip limit adjustment criteria listed in § 635.24(a)(8). If the quota continues to be harvested quickly, NMFS could reduce the retention limit to 0 LCS other than sandbar sharks per vessel per trip to ensure enough quota remains until later in the year. If either situation occurs, NMFS would publish in the Federal Register notification of any inseason adjustments of the retention limit to an appropriate limit of sharks per trip. NMFS will consider increasing the commercial retention limits per trip at a later date, if necessary, to provide fishermen in the northern portion of the Atlantic region an opportunity to retain aggregated LCS and hammerhead sharks after considering the appropriate inseason adjustment criteria. Similarly, at some point later in the year, NMFS may consider increasing the retention limit to 36 LCS other than sandbar sharks per vessel per trip or another amount, as deemed appropriate, after considering the inseason trip limit adjustment criteria. If the quota is being harvested too quickly or too slowly, NMFS could adjust the retention limit appropriately to ensure the fishery remains open most of the rest of the year. However, as stated above, NMFS has noticed a decrease in annual landings from 2016 to present. As such, in addition to the proposed change to the percent of quota harvested, NMFS is also considering an increase from the initial 25 sharks per trip in the beginning of the fishing year to a higher number of landings per trip, within the 55 sharks per trip limit. Changes to either the percent of quota harvested or the initial retention limit (or both) could allow fishermen in the Atlantic region to more fully utilize the quota. NMFS is specifically asking for comments on these potential changes.

All of the shark management groups would remain open until December 31, 2020, or until NMFS determines that the landings for any shark management group have reached, or are projected to reach, 80-percent of the available overall, regional, and/or sub-regional quota, if the fishery's landings are not projected to reach 100 percent of the applicable quota before the end of the season, or when the quota-linked management group is closed. If NMFS determines that a non-linked shark species or management group must be closed, then, consistent with § 635.28(b)(2) for non-linked quotas (e.g., eastern Gulf of Mexico blacktip, western Gulf of Mexico blacktip, Gulf of Mexico non-blacknose SCS, pelagic sharks, or the Atlantic or Gulf of Mexico smoothhound sharks), NMFS will publish in the Federal Register a notice of closure for that shark species, shark management group, region, and/or sub-region that will be effective no fewer than four days from the date of filing (83 FR 31677; July 9, 2018). For the blacktip shark management group, regulations at § 635.28(b)(5)(i) through (v) authorize NMFS to close the management group before landings reach, or are expected to reach, 80-percent of the available overall, regional, and/or sub-regional quota, after considering the following criteria and other relevant factors: Season length based on available sub-regional quota and average sub-regional catch rates; variability in regional and/or sub-regional seasonal distribution, abundance, and migratory patterns; effects on accomplishing the objectives of the 2006 Consolidated Atlantic HMS FMP and its amendments; amount of remaining shark quotas in the relevant sub-region; and regional and/or sub-regional catch rates of the relevant shark species or management groups. From the effective date and time of the closure until NMFS announces, via the publication of a notice in the Federal Register, that additional quota is available and the season is reopened, the fisheries for the shark species or management group are closed, even across fishing years.

If NMFS determines that a linked shark species or management group must be closed, then, consistent with § 635.28(b)(3) for linked quotas and the Final Rule to Revise Atlantic Highly Migratory Species Shark Fishery Closure Regulations (83 FR 31677; July 9, 2018), NMFS will publish in the Federal Register a notice of closure for all of the species and/or management groups in a linked group that will be effective no fewer than four days from date of filing. In that event, from the effective date and time of the closure until NMFS announces, via the publication of a notice in the Federal Register, that additional quota is available and the season is reopened, the fisheries for all linked species and/or management groups will be closed, even across fishing years. The linked quotas of the species and/or management groups are Atlantic hammerhead sharks and Atlantic aggregated LCS; eastern Gulf of Mexico hammerhead sharks and eastern Gulf of Mexico aggregated LCS; western Gulf of Mexico hammerhead sharks and western Gulf of Mexico aggregated LCS; and Atlantic blacknose and Atlantic non-blacknose SCS south of 34° N latitude.

Request for Comments

Comments on this proposed rule may be submitted via www.regulations.gov or by mail. NMFS solicits comments on this proposed rule by October 10, 2019 (see DATES and ADDRESSES). As noted above, NMFS is specifically asking for comments on three distinct issues—the initial LCS retention limit in the Gulf of Mexico region, the level of landings at which NMFS considers adjusting the retention limit for the Atlantic region, and the initial LCS retention limit in the Atlantic region.

Classification

The NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its amendments, the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

NMFS determined that the final rules to implement Amendment 2 to the 2006 Consolidated Atlantic HMS FMP (June 24, 2008, 73 FR 35778; corrected on July 15, 2008, 73 FR 40658), Amendment 5a to the 2006 Consolidated Atlantic HMS FMP (78 FR 40318; July 3, 2013), Amendment 6 to the 2006 Consolidated Atlantic HMS FMP (80 FR 50073; August 18, 2015), and Amendment 9 to the 2006 Consolidated Atlantic HMS FMP (80 FR 73128; November 24, 2015) are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of coastal states on the Atlantic including the Gulf of Mexico and the Caribbean Sea as required under the Coastal Zone Management Act. Pursuant to 15 CFR 930.41(a), NMFS provided the Coastal Zone Management Program of each coastal state a 60-day period to review the consistency determination and to advise NMFS of their concurrence. NMFS received concurrence with the consistency determinations from several states and inferred consistency from those states that did not respond within the 60-day time period. This proposed action to establish opening dates and adjust quotas for the 2020 fishing year for the Atlantic commercial shark fisheries does not change the framework previously consulted upon. Therefore, no additional consultation is required.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. The IRFA analysis follows.

Section 603(b)(1) of the RFA requires agencies to explain the purpose of the rule. This rule, consistent with the Magnuson-Stevens Act and the 2006 Consolidated Atlantic HMS FMP and its amendments, is being proposed to establish the 2020 commercial shark fishing quotas, retention limits, and fishing seasons. Without this rule, the commercial shark fisheries would close on December 31, 2019, and would not open until another action was taken. This proposed rule would be implemented according to the regulations implementing the 2006 Consolidated Atlantic HMS FMP and its amendments. Thus, NMFS proposes few, if any, economic impacts to fishermen other than those already analyzed in the 2006 Consolidated Atlantic HMS FMP and its amendments, based on the quota adjustments.

Section 603(b)(2) of the RFA requires agencies to explain the rule's objectives. The objectives of this rule are to: Adjust the base quotas for all shark management groups based on any overharvests and/or underharvests from the previous fishing year(s); establish the opening dates of the various management groups; and establish the retention limits for the blacktip shark, aggregated large coastal shark, and hammerhead shark management groups in order to provide, to the extent practicable, equitable opportunities across the fishing management regions and/or sub-regions while also considering the ecological needs of the different shark species.

Section 603(b)(3) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register, which NMFS did on December 29, 2015 (80 FR 81194; 50 CFR 200.2). In this final rule effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all HMS permit holders to be small entities because they had average annual receipts of less than $11 million for commercial fishing.

As of September 2019, the proposed rule would apply to the approximately 219 directed commercial shark permit holders, 262 incidental commercial shark permit holders, 162 smoothhound shark permit holders, and 106 commercial shark dealers. Not all permit holders are active in the fishery in any given year. Active directed commercial shark permit holders are defined as those with valid permits that landed one shark based on HMS electronic dealer reports. Of the 481 directed and incidental commercial shark permit holders, only 12 permit holders landed sharks in the Gulf of Mexico region and only 69 landed sharks in the Atlantic region. Of the 154 smoothhound shark permit holders, only 61 permit holders landed smoothhound sharks in the Atlantic region and none landed smoothhound sharks in the Gulf of Mexico region. NMFS has determined that the proposed rule would not likely affect any small governmental jurisdictions.

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)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements as domestically implemented, domestic laws, and FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act.

Section 603(c) of the RFA requires each IRFA to contain a description of any significant alternatives to the proposed rule, which would accomplish the stated objectives of applicable statutes and minimize any significant economic impact of the proposed rule on small entities. Additionally, the RFA (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: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule for small entities. In order to meet the objectives of this proposed rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities, because all of the entities affected are considered small entities. In addition, there are no alternatives discussed that fall under the first, second, and fourth categories described 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; therefore, there are no alternatives considered under the third category.

This rulemaking does not establish management measures to be implemented, but rather implements previously adopted and analyzed measures with adjustments, as specified in the 2006 Consolidated Atlantic HMS FMP and its amendments and the Environmental Assessment (EA) that accompanied the 2011 shark quota specifications rule (75 FR 76302; December 8, 2010). Thus, NMFS proposes to adjust quotas established and analyzed in the 2006 Consolidated Atlantic HMS FMP and its amendments by subtracting the underharvest or adding the overharvest as allowable. Thus, NMFS has limited flexibility to modify the quotas in this rule, the impacts of which were analyzed in previous regulatory flexibility analyses.

Based on the 2018 ex-vessel price (Table 3), fully harvesting the unadjusted 2020 Atlantic shark commercial base quotas could result in total fleet revenues of $8,775,599. For the Gulf of Mexico blacktip shark management group, NMFS is proposing to increase the base sub-regional quotas due to the underharvests in 2019. The increase for the western Gulf of Mexico blacktip shark management group could result in a $232,674 gain in total revenues for fishermen in that sub-region, while the increase for the eastern Gulf of Mexico blacktip shark management group could result in a $41,513 gain in total revenues for fishermen in that sub-region. For the Gulf of Mexico and Atlantic smoothhound shark management groups, NMFS is proposing to increase the base quotas due to the underharvest in 2019. This would cause a potential gain in revenue of $262,788 for the fleet in the Gulf of Mexico region and a potential gain in revenue of $1,057,482 for the fleet in the Atlantic region.

All of these changes in gross revenues are similar to the changes in gross revenues analyzed in the 2006 Consolidated Atlantic HMS FMP and its amendments. The final regulatory flexibility analyses for those amendments concluded that the economic impacts on these small entities are expected to be minimal. In the 2006 Consolidated Atlantic HMS FMP and its amendments and the EA for the 2011 shark quota specifications rule, NMFS stated it would be conducting annual rulemakings and considering the potential economic impacts of adjusting the quotas for underharvests and overharvests at that time.

For this rule, NMFS also reviewed the criteria at § 635.27(b)(3) to determine when opening each fishery would provide equitable opportunities for fishermen, to the extent practicable, while also considering the ecological needs of the different species. The opening dates of the fishing season(s) could vary depending upon the available annual quota, catch rates, and number of fishing participants during the year. For the 2020 fishing year, NMFS is proposing to open all of the shark management groups on the effective date of the final rule for this action (expected to be on or about January 1). The direct and indirect economic impacts would be neutral on a short- and long-term basis because NMFS is not proposing to change the opening dates of these fisheries from the status quo.

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