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					                                                                      Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Proposed Rules                                                 57235

                                                  timeframes to bring a claim. HRSA                       (11) Covered Entity Consolidation of                  ensure its most effective use. HRSA
                                                  invites comments on deadlines for                       Claims                                                invites comments concerning the
                                                  responses to submissions by the                           Similar to the consolidation of                     relationship between administrative
                                                  participants, the government and                        manufacturer claims, HRSA is required                 dispute resolution and other oversight
                                                  deciding body or official and the                       to create a process for consideration of              mechanisms.
                                                  consequences of failure to meet a                                                                               While these thirteen areas were
                                                                                                          requests for consolidation of particular
                                                  particular deadline.                                                                                          identified for comment, we welcome
                                                                                                          covered entity claims. HRSA invites
                                                                                                                                                                comments on any other issues that
                                                  (8) Discovery Procedures                                comment on whether the standard for                   stakeholders believe are key to
                                                                                                          manufacturers and covered entities                    implementing an effective alternate
                                                    HRSA is requesting input on the                       should differ and whether there should
                                                  process used for discovery of                                                                                 dispute resolution process.
                                                                                                          be a presumption of allowing such
                                                  information from participating                          consolidation of claims absent a finding               Dated: September 14, 2010.
                                                  manufacturers and covered entities.                     that consolidation would be                           Mary K. Wakefield,
                                                  HRSA will need to determine the scope                   inconsistent with the goals of fairness               Administrator.
                                                  of documents (information, reports,                     and economy of resources.                             [FR Doc. 2010–23460 Filed 9–17–10; 8:45 am]
                                                  answers, records, accounts, papers,                                                                           BILLING CODE 4165–15–P
                                                  documentary evidence, etc.) and                         (12) Claims by Organizations
                                                  interrogatories eligible for discovery.                 Representing Covered Entities
                                                  HRSA will also need to determine under                    The legislation provides for claims by              DEPARTMENT OF COMMERCE
                                                  what circumstances (irrelevancy,                        organizations representing entities.
                                                  privileged information, unduly                          HRSA is interested in input on when a                 National Oceanic and Atmospheric
                                                  burdensome, etc.) protective orders                     third party can bring claims on behalf of             Administration
                                                  should be utilized. Procedures to ensure                member covered entities in the context
                                                  the confidentiality of information                      of a binding formal dispute resolution                50 CFR Part 635
                                                  discovered will also need to be                         process and how to ensure that the
                                                  developed. Finally, a determination will                                                                      [Docket No. 100825390–0431–01]
                                                                                                          group in fact represents the interests of
                                                  need to be made as to the power to                      the covered entities. In order to ensure              RIN 0648–BA17
                                                  compel discovery from third parties                     that such organizations actually
                                                  given that OPA has limited direct                       represent the interests of covered                    Atlantic Highly Migratory Species;
                                                  regulatory authority through the 340B                   entities, HRSA is contemplating that                  Atlantic Shark Management Measures
                                                  Program over entities and individuals                   prior to seeking to file a claim on behalf            AGENCY:  National Marine Fisheries
                                                  outside of 340B participating drug                      of covered entities, such groups must                 Service (NMFS), National Oceanic and
                                                  manufacturers and covered entities.                     have a signed agreement with the                      Atmospheric Administration (NOAA),
                                                  (9) Manufacturer Audits                                 covered entities. The agreement would                 Commerce.
                                                                                                          indicate that the organization is                     ACTION: Advance notice of proposed
                                                    The administrative dispute resolution                 authorized to bring a claim on behalf of              rulemaking; request for comments.
                                                  requirements of the Affordable Care Act                 the covered entities; the precise nature
                                                  set forth that manufacturers must                       of the claim; that the covered entities               SUMMARY:   NMFS issues this advance
                                                  conduct an audit of a covered entity                    agree to participate in good faith and                notice of proposed rulemaking (ANPR)
                                                  prior to bringing a claim. HRSA                         abide by discovery procedures; and that               to provide background information and
                                                  currently has guidelines regarding the                  the covered entities agree to be bound                request public comment on potential
                                                  requirements for initiating an audit (61                by any decision of the decision-making                adjustments to the regulations governing
                                                  FR 65406). However, over the history of                 official or body. HRSA contemplates a                 the U.S. Atlantic shark fishery to
                                                  the 340B Program manufacturers have                     decision-making official or body having               address several specific issues currently
                                                  rarely utilized the process in the                      the authority to not allow claims that                affecting management of the shark
                                                  guidelines to conduct an audit. HRSA                    would result in unfairness or a                       fishery and to identify specific goals for
                                                  invites comments on whether it is                       substantial waste of resources.                       management of fishery in the future.
                                                  appropriate or necessary to modify the                                                                        NMFS is requesting public comment
                                                  guidelines concerning audits prior to                   (13) Integration of Dispute Resolutions               regarding the potential implementation
                                                  implementing the administrative                         With Other Provisions in the Affordable               of changes to the quota and/or permit
                                                  dispute resolution regulation or whether                Care Act                                              structure that are currently in place for
                                                  the current final guidelines are                          In addition to the compliance tools                 the Atlantic shark fishery. NMFS is also
                                                  sufficient.                                             already available to HRSA, such as                    requesting comments on the
                                                                                                          audits and alternative dispute                        implementation of programs such as
                                                  (10) Consolidation of Manufacturer
                                                                                                          resolution, the Affordable Care Act                   catch shares, limited access privilege
                                                  Claims
                                                                                                          provides HRSA with many additional                    programs (LAPPs), individual fishing
                                                    HRSA is required to create a process                  tools to monitor compliance. These                    quotas (IFQs), and/or sectors for the
                                                  for consideration of whether requests by                additional tools include establishing                 Atlantic shark fishery.
                                                  a manufacturer or manufacturers to                      procedures to verify the accuracy of                  DATES: Written comments regarding the
                                                  consolidate claims by more than one                     ceiling prices; creating processes for                issues in this ANPR must be received no
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                                                  manufacturer against the same covered                   manufacturers to refund overcharges;                  later than 5 p.m. on January 14, 2011.
                                                  entity are ‘‘appropriate and consistent                 selective auditing of manufacturers;                     Public meetings to obtain additional
                                                  with the goals of fairness and economy                  annual recertification of covered                     comments on the items discussed in this
                                                  of resources.’’ HRSA seeks comments on                  entities; and providing access to ceiling             ANPR will be held in September,
                                                  how to create this process, the evidence                price information. The use of the new                 October, November, and December
                                                  to be considered, timing of requests to                 administrative dispute resolution                     2010. Please see the SUPPLEMENTARY
                                                  join in a consolidated claim, and the                   authority must be used in conjunction                 INFORMATION section of this ANPR for
                                                  interests to be weighed.                                with these other compliance tools to                  specific dates, times, and locations.


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                                                  57236               Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Proposed Rules

                                                  ADDRESSES:    You may submit comments,                  management needs in the Atlantic shark                products or charter vessel and headboat
                                                  identified by ‘‘0648–BA17’’, by any one                 fishery.                                              operations or at least $20,000 from the
                                                  of the following methods:                                                                                     sale of fish during one of three years
                                                                                                          I. Background
                                                    • Electronic submissions: Submit all                                                                        preceding the permit request.
                                                  electronic public comments via the                         The Fishery Conservation                              Based in part on the results of the
                                                  Federal e-Rulemaking Portal: http://                    Amendments of 1990 (Pub. L. 101–627)                  1998 LCS stock assessment, in April
                                                  www.regulations.gov.                                    amended the Magnuson Fishery                          1999, NMFS published the final 1999
                                                    • Fax: 301–713–1917, Attn: Margo                      Conservation and Management Act                       FMP for Atlantic Tunas, Swordfish and
                                                  Schulze-Haugen.                                         (later renamed the Magnuson-Stevens                   Sharks, which included numerous
                                                    • Mail: NMFS SF1, 1315 East-West                      Fishery Conservation and Management                   measures to rebuild or prevent
                                                  Highway, Silver Spring, MD 20910.                       Act or Magnuson-Stevens Act) and gave                 overfishing of Atlantic sharks in
                                                    Instructions: All comments received                   the Secretary of Commerce (Secretary)                 commercial and recreational fisheries.
                                                  are part of the public record and                       the authority to manage HMS in the                    The 1999 FMP amended and replaced
                                                  generally will be posted to portal                      Exclusive Economic Zone (EEZ) of the                  the 1993 FMP. Some of the management
                                                  http://www.regulations.gov without                      Atlantic Ocean, Gulf of Mexico, and                   measures related to sharks that changed
                                                  change. All personal identifying                        Caribbean Sea under authority of the                  in the 1999 FMP included:
                                                  information (for example, name,                         Magnuson-Stevens Act (16 U.S.C. 1811,                    • Reducing commercial LCS and SCS
                                                  address, etc.) voluntarily submitted by                 16 U.S.C. 1854(f)(3)). The Secretary has              quotas;
                                                  the commenter may be publicly                           delegated the authority to manage                        • Establishing ridgeback and non-
                                                  accessible. Do not submit confidential                  Atlantic HMS to NMFS.                                 ridgeback categories of LCS;
                                                  business information or otherwise                          In 1993, NMFS implemented the FMP                     • Implementing a commercial
                                                  sensitive or protected information.                     for Sharks of the Atlantic Ocean. Some                minimum size for ridgeback LCS;
                                                  NMFS will accept anonymous                              of the management measures in the                        • Reducing recreational retention
                                                  comments. Attachments to electronic                     1993 FMP included:                                    limits for all sharks;
                                                  comments will be accepted in Microsoft                     • Establishing a fishery management                   • Establishing a recreational
                                                  Word, Excel, WordPerfect, or Adobe                      unit (FMU) consisting of 39 frequently-               minimum size for all sharks except
                                                  PDF file formats only.                                  caught species of Atlantic sharks,                    Atlantic sharpnose;
                                                    Related documents, including the                      separated into three groups for                          • Implementing limited access in
                                                  2006 Consolidated Highly Migratory                      assessment and regulatory purposes                    commercial fisheries;
                                                  Species (HMS) Fishery Management                        (Large Coastal Sharks (LCS), Small                       • Establishing new procedures for
                                                  Plan (FMP) and its amendments and the                   Coastal Sharks (SCS), and pelagic                     counting dead discards and state
                                                  2009 Stock Assessment and Fishery                       sharks);                                              landings of sharks after Federal fishing
                                                  Evaluation (SAFE) Report are available                     • Establishing calendar year                       season closures against Federal quotas;
                                                  upon request at the mailing address                     commercial quotas for the LCS and                     and
                                                  noted above or on the HMS                               pelagic sharks and dividing the annual                   • Establishing season-specific over-
                                                  Management Division’s Web page at:                      quota into two equal half-year quotas                 and underharvest adjustment
                                                  http://www.nmfs.noaa.gov/sfa/hms/.                      that applied to the following two fishing             procedures.
                                                    Public meetings to obtain additional                  periods—January 1 through June 30 and                    In 2002, additional LCS and SCS
                                                  comments on the items discussed in this                 July 1 through December 31;                           stock assessments were conducted.
                                                  ANPR will be held in New Jersey, North                     • Establishing a recreational trip limit           Based on these assessments, NMFS re-
                                                  Carolina, Maryland (HMS Advisory                        of four sharks per vessel for LCS or                  examined many of the shark
                                                  Panel (AP) meeting), Florida, and                       pelagic shark species groups and a daily              management measures in the 1999 FMP
                                                  Louisiana. Please see the                               bag limit of five sharks per person for               for Atlantic Tunas, Swordfish, and
                                                  SUPPLEMENTARY INFORMATION section of                    sharks in the SCS species group;                      Sharks and amended the 1999 FMP
                                                  this ANPR for specific dates, times, and                   • Establishing a framework procedure               (Amendment 1). The changes in
                                                  locations.                                              for adjusting commercial quotas,                      Amendment 1 to the 1999 FMP affected
                                                                                                          recreational bag limits, species size                 all aspects of shark management. The
                                                  FOR FURTHER INFORMATION CONTACT:
                                                                                                          limits, management units, fishing year,               final management measures in
                                                  Karyl Brewster-Geisz, LeAnn Southward
                                                                                                          species groups, estimates of maximum                  Amendment 1 included, among other
                                                  Hogan or Delisse Ortiz at 301–713–2347
                                                                                                          sustainable yield (MSY), and permitting               things:
                                                  or fax at 301–713–1917.                                                                                          • Aggregating the LCS;
                                                                                                          and reporting requirements;
                                                  SUPPLEMENTARY INFORMATION: The                             • Prohibiting finning by requiring                    • Using MSY as a basis for setting
                                                  Atlantic shark fisheries are managed                    that the ratio between wet fins and                   commercial quotas;
                                                  under the authority of the Magnuson-                    dressed carcass weight at landing not                    • Eliminating the commercial
                                                  Stevens Fishery Conservation and                        exceed five percent;                                  minimum size;
                                                  Management Act (Magnuson-Stevens                           • Prohibiting the sale by recreational                • Establishing regional commercial
                                                  Act). In 1999, NMFS revised the 1993                    fishermen of sharks or shark products                 quotas and trimester commercial fishing
                                                  Shark FMP and included swordfish and                    caught in the EEZ;                                    seasons, adjusting the recreational bag
                                                  tunas in the 1999 FMP for Atlantic                         • Requiring annual commercial                      and size limits, establishing gear
                                                  Tunas, Swordfish, and Sharks (1999                      permits for fishermen who harvest and                 restrictions to reduce bycatch or reduce
                                                  FMP). The 1999 FMP was amended in                       sell shark products (meat products and                bycatch mortality; and
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                                                  2003, and in 2006, NMFS consolidated                    fins); and                                               • Establishing a time/area closure off
                                                  the Atlantic tunas, swordfish, and shark                   • Establishing a permit eligibility                the coast of North Carolina.
                                                  FMP and its amendments and the                          requirement that the owner or operator                   The 2006 Consolidated HMS FMP
                                                  Atlantic billfish FMP and its                           (including charter vessel and headboat                consolidated the management of all
                                                  amendments into the 2006 Consolidated                   owners/operators who intend to sell                   Atlantic HMS into one comprehensive
                                                  Atlantic HMS FMP. The 2006                              their catch) show proof that at least 50              FMP, adjusted the regulatory framework
                                                  Consolidated HMS FMP was amended                        percent of earned income has been                     measures, continued the process for
                                                  in 2008 and 2010 to address                             derived from the sale of the fish or fish             updating HMS Essential Fish Habitat


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                                                                      Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Proposed Rules                                           57237

                                                  (EFH), and combined and simplified the                    • Taking action at the international                with no individual species quotas;
                                                  objectives of the previous FMPs.                        level to end overfishing of shortfin mako             having species-specific quotas only;
                                                  Measures that were specific to the shark                sharks; and                                           moving species within a complex to
                                                  fisheries included, but were not limited                  • Promoting the release of shortfin                 different complexes; re-considering
                                                  to:                                                     mako sharks in the recreational and                   regional quotas; establishing bycatch
                                                     • Mandatory protected species safe                   commercial fisheries.                                 quotas for prohibited shark species or
                                                  handling and release workshops and                                                                            protected resources; and limiting quotas
                                                                                                          A. Need for Action
                                                  certifications for all vessel owners and                                                                      by gear type such as gillnet quotas, BLL
                                                  operators that have pelagic longline                       As outlined above, since sharks have               quotas, and recreational quotas.
                                                  (PLL) or bottom longline (BLL) gear on                  been federally managed, there have been                 Managing the species in complexes
                                                  their vessels and that had been issued                  many changes to the regulations and                   only, with no individual species quotas,
                                                  or were required to be issued any of the                major rules related to sharks, either                 would re-establish the method of shark
                                                  HMS limited access permits (LAPs) to                    through FMP amendments or regulatory                  management established in the 1993
                                                  participate in HMS longline and gillnet                 amendments, in order to respond to                    FMP. For example, the fishery could
                                                  fisheries.                                              results of stock assessments, changes in              return to an LCS complex, an SCS
                                                     • Mandatory Atlantic shark                           stock status, and other fishery                       complex, and a pelagic shark complex.
                                                  identification workshops for all                        fluctuations. Despite modifications to                Managing the shark species by
                                                  federally permitted shark dealers to                    the regulations or Amendments to the                  complexes in this way simplified season
                                                  train shark dealers to properly identify                FMP in order to respond to these                      opening dates and the process for
                                                  shark carcasses; and                                    changes, the Atlantic shark fishery,                  setting quotas. The species complex
                                                     • The requirement that the second                    particularly the LCS portion of the                   management approach worked well
                                                  dorsal fin and the anal fin remain on all               fishery, continues to be faced with                   when the stock assessments were
                                                  sharks through landing.                                 problems such as commercial landings                  conducted on the complex, but became
                                                     In 2005/2006, new stock assessments                  that exceed the quotas, declining                     complicated when stock assessments
                                                  were conducted on the LCS complex,                      numbers of fishing permits since limited              began to be completed for individual
                                                  and sandbar, blacktip, porbeagle, and                   access was implemented, complex                       species because stock assessment
                                                  dusky sharks. Based on the results of                   regulations, ‘‘derby’’ fishing conditions             recommendations for TACs were given
                                                  those assessments, NMFS amended the                     due to small quotas and short seasons,                for individual species rather than for the
                                                  2006 Consolidated HMS FMP                               increasing numbers of regulatory                      complex. NMFS is seeking public
                                                  (Amendment 2). NMFS implemented                         discards, and declining market prices.                comment on how, if NMFS were to
                                                  management measures consistent with                     Rather than react to these issues every               return to this management structure,
                                                  recent stock assessments for sandbar,                   year with a new regulation or every                   quotas should be set if the stock status
                                                  porbeagle, dusky, and blacktip sharks                   other year with a new FMP amendment,                  of species differs within a complex.
                                                  and the LCS complex. Some of the                        NMFS would like to be more proactive                  Should the overall complex quota be
                                                  management measures implemented in                      in management and explore methods to                  based on the species with the poorest
                                                  Amendment 2 included:                                   establish more flexible regulations that              stock status, the best stock status, or an
                                                     • Initiating rebuilding plans for                    would consider the changing needs of                  average stock status? How should NMFS
                                                  porbeagle, dusky, and sandbar sharks                    the fishery. To achieve this objective,               determine within which complex a
                                                  consistent with stock assessments;                      NMFS must establish specific long-term                species should be placed? Should the
                                                     • Implementing commercial quotas                     management goals for the shark fishery,               complex be based on biology, gear type,
                                                  and retention limits consistent with                    including the goals of rebuilding                     stock status, or something else?
                                                  stock assessment recommendations to                     overfished stocks, preventing                           If NMFS were to move forward with
                                                  prevent overfishing and rebuild                         overfishing, and the other objectives of              species-specific quotas, this could result
                                                  overfished stocks;                                      the 2006 Consolidated HMS FMP and                     in more than twenty individual shark
                                                     • Modifying recreational measures to                 its amendments. In this ANPR, NMFS                    quotas. If each shark species had an
                                                  reduce fishing mortality of overfished                  requests comments and input on what                   individual quota, the season for each
                                                  stocks and stocks with overfishing                      the specific fishery goals should be and              species could open and close at
                                                  occurring;                                              on potential short-term and long-term                 different times during the year.
                                                     • Modifying reporting requirements;                  changes to the Atlantic shark fishery in
                                                                                                                                                                Currently, species-specific quotas
                                                     • Requiring that all Atlantic sharks be              order to achieve those goals.
                                                                                                                                                                within the shark fishery are based on
                                                  offloaded with fins naturally attached;                                                                       recommendations from species-specific
                                                  and                                                     II. Potential Management Solutions                    stock assessments. NMFS is seeking
                                                     • Collecting shark life history                      A. Quota Structure Changes
                                                                                                                                                                public comment on how, if a particular
                                                  information via the implementation of a                                                                       species has no species-specific stock
                                                  shark research program.                                   Several changes could be made to the                assessment, the quotas should be
                                                     An SCS stock assessment was                          current shark quota structure. Currently,             derived. In the SCS fishery, there is a
                                                  finalized during the summer of 2007                     NMFS calculates the total allowable                   species-specific quota and a complex
                                                  which assessed finetooth, Atlantic                      catch (TAC) for a shark species based on              quota, and when the species-specific
                                                  sharpnose, blacknose, and bonnethead                    stock assessments. NMFS partitions                    quota is caught, both the species-
                                                  sharks. Based on the results of this                    these TACs into commercial landings,                  specific and the complex quotas are
                                                  assessment, NMFS amended the 2006                       recreational landings, and dead                       closed. If NMFS were to move to
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                                                  Consolidated HMS FMP (Amendment                         discards. NMFS bases the commercial                   individual species quotas only, should
                                                  3). The measures in Amendment 3                         quotas on the commercial landings                     these quotas be linked or should they
                                                  included, among other things:                           partition and adjusts them according to               close independently of each other? If the
                                                     • Implementing a rebuilding plan for                 rebuilding plans to end overfishing.                  quotas were not linked, how should
                                                  blacknose sharks;                                       Within this overall quota structure,                  NMFS account for dead discards of each
                                                     • Implementing commercial SCS                        NMFS is considering changes. NMFS is                  species?
                                                  quotas consistent with stock assessment                 considering, among other things:                        NMFS is considering whether
                                                  recommendations;                                        Managing the species in complexes only                blacktip sharks should be moved from


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                                                  57238               Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Proposed Rules

                                                  the LCS complex to the SCS complex                      issued. NMFS implemented LAPs in the                  multiple permits be able to buy
                                                  because this species tends to be caught                 1999 FMP for Atlantic Tunas, Swordfish                additional permits in order to stack
                                                  with the same gear as the other SCS                     and Sharks to remove latent effort from               them on a vessel? How would a permit
                                                  species, or whether this species should                 HMS commercial fisheries. As of                       stacking system incorporate the
                                                  be removed from the LCS complex and                     November 2009, there were 221 directed                upgrading restrictions that are currently
                                                  managed separately. NMFS is seeking                     permits and 282 incidental limited                    in place?
                                                  public comment on how blacktip sharks                   access permits in the Atlantic shark                     If NMFS were to implement a use or
                                                  should be managed, including whether,                   fishery. Currently, if new participants               lose permit system, this may mean that
                                                  if blacktip sharks were moved to the                    would like to join the fishery, they must             fishermen who do not use their
                                                  SCS complex, should the SCS complex                     find a participant who is willing to sell/            commercial shark permit for a specified
                                                  quota be adjusted? If blacktip sharks                   transfer his or her commercial permit.                amount of time would lose the permit
                                                  were managed with an individual quota,                  There are upgrading restrictions that                 and would be unable to re-enter the
                                                  how should this quota be derived? Are                   apply to all directed limited access                  shark fishery. NMFS is seeking public
                                                  there other species that should move to                 permit holders. An owner may upgrade                  comment and input on these types of
                                                  different complexes or have their own                   a vessel with a directed limited access               measures, including how and whether
                                                  quota?                                                  permit or transfer the directed limited               this type of use or lose system should
                                                     Other possible changes to the current                access permit to another vessel only if               apply to directed and incidental shark
                                                  shark quota structure could include re-                 the upgrade or transfer does not result               permit holders and how long should
                                                  considering regional quotas. Currently,                 in an increase in horsepower of more                  permits remain inactive before they are
                                                  the LCS quotas are separated into an                    than 20 percent or an increase of more                lost. What should NMFS do with the
                                                  Atlantic quota and a Gulf of Mexico                     than 10 percent in length overall, gross              permits that are lost? Should those
                                                  quota, and the SCS and pelagic shark                    registered tonnage, or net tonnage from               permits be removed from the fishery
                                                  fisheries have no regional quotas. In the               the original qualifying vessel’s                      permanently or should NMFS sell those
                                                  past, the LCS fishery was managed in                    specifications. In addition, if a permit is           permits to other fishermen?
                                                  three regions: The Gulf of Mexico, North                expired for more than a year, the permit                 Another potential solution would be
                                                  Atlantic and South Atlantic. The                        becomes permanently invalid and can                   to limit the number of permits to match
                                                  purpose of the three regions was to                     no longer be renewed. NMFS therefore                  the effort needed to catch the quota over
                                                  provide flexibility to adjust regional                  is considering and seeks public                       the entire year. NMFS is seeking public
                                                  quotas to reduce mortality of juvenile                  comment on management measures                        comment on these types of measures,
                                                  and reproductive female sharks, provide                 such as: Permit stacking; a use or lose               including how and whether NMFS
                                                  fishing opportunities when sharks were                  permit system; and matching permit                    could implement a permit system of this
                                                  present in various regions, and account                                                                       type, and whether both inactive and
                                                                                                          capacity to the shark quotas.
                                                  for differences between species’                                                                              active permits could be removed from
                                                  utilization of various pupping grounds.                    If NMFS were to implement a permit                 the fishery. This type of system would
                                                  When the LCS fishery was managed in                     stacking system (as explained below),                 be different from the current LAP
                                                  three regions, however, NMFS received                   this would likely mean that fishermen                 system, as that system was designed to
                                                  feedback from fishery participants that                 with multiple shark LAPs could use                    remove latent effort only. If permit
                                                  this approach was not meeting the                       them concurrently on one vessel and                   numbers were matched to the amount of
                                                  related goals to providing fishing                      that the trip limits of the individual                quota, how should those permits be
                                                  opportunities. One reason for this was                  permits could be used concurrently as                 allocated? Should the permits be given
                                                  because there were instances when                       well. For example, the current non-                   to the most active and directed shark
                                                  fishing effort would change in these                    sandbar LCS trip limit is 33 per trip.                fishermen (which would result in the
                                                  regions and NMFS would have to                          Under permit stacking, if two directed                fewest number of permits) or to the least
                                                  transfer quota among regions to                         shark permits were stacked onto one                   active shark fishermen (which would
                                                  compensate for one region’s overharvest                 vessel, that vessel would have a trip                 result in more permits but could remove
                                                  and another region’s underharvests of                   limit of 66 non-sandbar LCS per trip.                 the fishermen who rely on the fishery
                                                  the regional quota. Due to regional                     Such a system could provide additional                the most)?
                                                  differences in migration patterns and                   opportunities and security for fishermen
                                                                                                          who have access to more than one                      C. Catch Shares
                                                  seasonality of some shark species, some
                                                  fishery participants have expressed                     permit and could provide for a more                      NMFS has received multiple
                                                  interest in further splitting the LCS                   efficient use of resources where                      questions and requests from fishermen
                                                  quotas in the Atlantic and Gulf of                      fishermen only need to pay fuel costs                 and other shark fishery constituents to
                                                  Mexico. NMFS is seeking public                          for one vessel rather than two or more                consider catch shares for the Atlantic
                                                  comment on these management issues                      vessels. While this approach may                      shark fishery. Requests to consider catch
                                                  and approaches, including: If additional                provide benefits for fishermen, NMFS                  shares have come from gillnetters in
                                                  regional quotas were developed, where                   also wants to explore the appropriate                 Florida and BLL fishermen in the Gulf
                                                  should these regions occur and how                      limits on permit stacking. For instance,              of Mexico. Additionally, fishermen
                                                  should the quotas be determined?                        such a system could provide for inactive              throughout the fishery, including
                                                  Similarly, if NMFS were to implement                    permits to be brought back into the                   fishermen who fish only in state waters,
                                                  quotas specific to gear type, such as                   fishery resulting in additional effort and            have asked what catch shares would
                                                  gillnet gear, BLL, and rod and reel, how                exacerbating current fishing problems.                mean for the shark fishery. To be
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                                                  should these quotas be established?                     NMFS is seeking public comment on                     responsive to these requests, this section
                                                                                                          these types of issues, including, how                 will give background information on
                                                  B. Permit Structure Changes                             many permits could be stacked onto one                catch shares, including sectors, and
                                                    Several changes could be made to the                  vessel? How would inactive/latent                     pose questions related to how these
                                                  Atlantic shark permit structure.                        permits be handled, and could they be                 programs would apply to the Atlantic
                                                  Currently, the directed and incidental                  stacked onto an active vessel? Should                 shark fishery.
                                                  commercial shark permits are LAPs and                   incidental shark permits be eligible for                 ‘‘Catch share’’ is an umbrella term that
                                                  no new commercial permits are being                     stacking and could fishermen without                  is used to describe fishery management


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                                                                      Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Proposed Rules                                           57239

                                                  programs that provide a portion of the                  commercial fisheries, should the                      States and around the world of different
                                                  TAC to individuals, cooperatives,                       recreational shark fishery be considered              types of catch share programs. Such a
                                                  communities, or other eligible entities.                for a catch share program? If so, how                 program is designed specifically for
                                                  Catch shares can include LAPPs, IFQs,                   would that work? If not, how would the                each fishery to address the problems in
                                                  sectors, and fishery cooperatives. Catch                TAC be allocated between the two                      that fishery. Some catch share programs
                                                  shares can address a variety of fishery                 sectors?                                              that appear successful are: The Alaska
                                                  needs such as lengthening fishing                          As described above, a catch share is               IFQ Halibut and Sablefish Program
                                                  seasons, lowering operating costs,                      an umbrella term that describes many                  (http://www.nmfs.noaa.gov/sfa/
                                                  improving market conditions,                            types of programs. One type of catch                  domes_fish/catchshare/docs/
                                                  promoting safe fishing operations,                      share program is a sector program. A                  ak_halibut_sablefish.pdf) and the
                                                  reducing bycatch and discard mortality,                 sector is a group of persons acting as an             Georges Bank Cod Hook Sector (http://
                                                  and improving quota monitoring and                      entity to which NMFS has granted a                    www.nmfs.noaa.gov/sfa/domes_fish/
                                                  timely reporting. Catch shares can also                 share or fraction of the TAC in order to              catchshare/docs/gbcod_hooksector.pdf).
                                                  address different fishery goals such as                 achieve objectives and goals within a                 NMFS is seeking public comment and
                                                  eliminating overfishing, stopping derby                 fishery consistent with an FMP. The                   input on catch share issues, including
                                                  fishing, and improving socio-economic                   allocation share to a sector would be to              whether a type of catch share program
                                                  conditions. In addition, catch shares can               the group, not to individuals, and                    may appear to provide the most
                                                  address fishery concerns such as loss of                distribution of that allocation share to              opportunity and stability for the fishery.
                                                  small boats and fleets, exclusion of                    members of the group is internal to the               Which type of catch share program
                                                  small vessel owners or new entrants,                    group and is not handled by NMFS. A                   should NMFS consider or not consider
                                                  and sustainability of fishing                           sector can negotiate and enforce plans,               and for what reasons? For additional
                                                  communities.                                            agreements and contracts similar to                   information on catch shares please visit
                                                     Each catch share program is unique                   those required of fishing communities                 the NOAA Fisheries Catch Shares Web
                                                  and there are many elements to consider                 and regional fishery associations. The                site at, http://www.nmfs.noaa.gov/sfa/
                                                  when designing one for a specific                       sector participants can select who                    domes_fish/catchshare/index.htm.
                                                  fishery. For example, the design needs                  would participate, and participation
                                                  to consider eligibility or who will                     would be voluntary. The rules within a                III. Shark Management Process
                                                  participate in the catch share program,                 sector would be set up by the sector but                 In considering the above options for
                                                  as well as the allocation of quota shares.              would be agreed upon by NMFS. When                    the shark fishery, it is also important to
                                                  When considering quota allocation, the                  considering sectors for the Atlantic                  consider the different aspects of the
                                                  duration of the quota shares,                           shark fishery, a group of fishermen                   rulemaking process. Currently, the
                                                  transferability of the shares, and                      could decide on a sector approach and                 Atlantic shark fishery is managed under
                                                  preventing excessive accumulation of                    work with NMFS to design regulations                  the 2006 Consolidated HMS FMP and
                                                  shares are important issues to consider.                specific to that sector that addressed the            its amendments. In certain cases, NMFS
                                                  It is also important to consider how to                 needs of the group. The regulations                   must amend the FMP; for example,
                                                  protect existing fishery communities                    within a shark sector could include                   when NMFS receives new fishery
                                                  and business sectors and ensure the                     season openings and quota shares,                     information such as new stock
                                                  stability and participation of traditional              among other things. Anyone outside of                 assessment information indicating a
                                                  operations. Many catch share programs                   a sector within the shark fishery would               stock is overfished, NMFS must prepare
                                                  apply to commercial fishermen, but                      follow general shark regulations. For                 an FMP amendment in order to develop
                                                  recreational fishermen are an important                 example, for a number of years, directed              a rebuilding plan for that particular
                                                  part of most fisheries. As such, another                shark gillnet fishermen, because of their             shark species and to end overfishing.
                                                  consideration is the allocation between                 experience with the gear and with                     FMP amendments may be warranted
                                                  commercial and recreational fishermen                   working with the Atlantic Large Whale                 due to other types of new information
                                                  and whether shares can be moved                         Take Reduction Team (ALWTRT), have                    and generally take approximately two
                                                  between those sectors. An additional                    been requesting that NMFS limit access                years to complete and implement. The
                                                  element of a catch share program that                   of new participants into the shark                    public is involved in the amendment
                                                  should be considered is the monitoring                  gillnet fishery. Under a sector scenario,             process during scoping and again at the
                                                  and enforcement of the program and                      those fishermen could form a sector                   proposed rule stage. An example of a
                                                  how to ensure compliance within the                     with specific gillnet regulations.                    recent amendment is Amendment 3 to
                                                  catch share program.                                    Additionally, a number of fishermen                   the 2006 Consolidated HMS FMP (75 FR
                                                     When considering catch shares for the                along the Atlantic Ocean and in the Gulf              30484, June 1, 2010), which was based
                                                  Atlantic shark fishery, NMFS has the                    of Mexico have been requesting NMFS                   on the 2007 SCS stock assessment that
                                                  following design questions: Should a                    to re-establish regions to allow them to              indicated NMFS needed to establish a
                                                  catch share program encompass all                       fish when certain species of sharks are               rebuilding plan and end overfishing of
                                                  species of Atlantic sharks? Should there                in their area. Under a sector scenario,               blacknose sharks.
                                                  be species-specific catch share programs                those fishermen could form sectors (e.g.,                Unlike FMP amendments, regulatory
                                                  within the Atlantic shark fishery?                      a North Atlantic sector and an eastern                amendments are changes to the
                                                  Should NMFS consider a pilot catch                      Gulf of Mexico sector). NMFS would                    regulations that can be made without
                                                  share program for certain species or                    then work with those sectors to                       amending the FMP. Regulatory
                                                  regions? If a federal shark catch share                 establish specific season openings and                amendments are often the result of new
jdjones on DSK8KYBLC1PROD with PROPOSALS-1




                                                  program were implemented, how would                     quota allocations. Permit holders                     information (e.g., the quota was filled
                                                  that work with the different states or the              outside the sector, even if fishing in the            faster than expected) and generally take
                                                  Atlantic States Marine Fishery                          same area, would not necessarily have                 about a year to complete and
                                                  Commission (ASMFC)? Would the states                    the same season opening or quota                      implement. Examples of past changes
                                                  or ASMFC have their own allocation, or                  availability as fishermen in that sector.             that have been made with regulatory
                                                  would they be included in the federal                      As described above, sectors are just               amendments include implementing trip
                                                  catch share allocation? Since most of the               one type of catch share program. There                limits, implementing biological opinion
                                                  current catch share programs apply to                   are numerous examples in the United                   requirements, changing regional quotas,


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                                                  57240               Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Proposed Rules

                                                  and changing gear operation and                         The preceding sections provide                           Authority: 16 U.S.C. 971 et seq. and 1801
                                                  deployment requirements. Regulatory                     background information regarding these                et seq.
                                                  changes of this nature tend to be                       topics and ideas for potential changes.                 Dated: September 14, 2010.
                                                  reactive and result when current                        The public is encouraged to submit                    Samuel D. Rauch III,
                                                  management measures need to be                          comments related to the specific ideas                Deputy Assistant Administrator for
                                                  modified. Generally, the public is                      and questions asked in each of the                    Regulatory Programs, National Marine
                                                  involved at the proposed rule stage for                 preceding sections. NMFS is also                      Fisheries Service.
                                                  these types of regulatory changes.                      seeking additional ideas/solutions for                [FR Doc. 2010–23438 Filed 9–17–10; 8:45 am]
                                                     Annual specifications are another                    changes to the Atlantic shark fishery.                BILLING CODE 3510–22–P
                                                  type of rulemaking action that NMFS                       All written comments received by the
                                                  uses to adjust the annual commercial                    due date will be considered in drafting
                                                  shark quotas that are established in the                proposed changes to the Atlantic shark                DEPARTMENT OF COMMERCE
                                                  FMP. The annual specifications take                     regulations. In developing any proposed
                                                  about 6 months to complete. Annual                      regulations, NMFS must consider and                   National Oceanic and Atmospheric
                                                  specifications adjust the quotas based                  analyze ecological, social, and economic              Administration
                                                  on over- and underharvests in the                       impacts. Therefore, NMFS encourages
                                                  previous year(s) and establish season                   comments that would contribute to the                 50 CFR Part 635
                                                  opening dates for the Atlantic shark                    required analyses, and respond to the
                                                  fishery. A recent example of an annual                                                                        [Docket No. 100622276–0307–02]
                                                                                                          questions presented in this ANPR.
                                                  specification is the final rule that                                                                          RIN 0648–AY98
                                                  established quotas and season opening                   VI. Public Meetings
                                                  dates for the 2010 Atlantic shark                         NMFS will hold six public meetings                  Atlantic Highly Migratory Species;
                                                  commercial fishing season based on                      to receive comments from fishery                      2011 Commercial Fishing Season and
                                                  over- and underharvests in 2009 (75 FR                  participants and other members of the                 Adaptive Management Measures for
                                                  250, January 5, 2010). Depending on the                 public regarding this ANPR. These                     the Atlantic Shark Fishery
                                                  outcome of this ANPR process, NMFS                      meetings will be physically accessible to             AGENCY:  National Marine Fisheries
                                                  will consider rules or FMP amendments                   people with disabilities. Request for                 Service (NMFS), National Oceanic and
                                                  as appropriate.                                         sign language interpretation or other                 Atmospheric Administration (NOAA),
                                                  IV. Summary                                             auxiliary aids should be directed to                  Commerce.
                                                                                                          Karyl Brewster-Geisz or LeAnn                         ACTION: Proposed rule; request for
                                                     This ANPR explains the Atlantic
                                                                                                          Southward Hogan at 301–713–2347                       comments.
                                                  shark management history while also
                                                                                                          (phone) or 301–713–19197 (fax), at least
                                                  describing ongoing issues within the                                                                          SUMMARY:    This proposed rule would
                                                                                                          7 days prior to the meeting. For
                                                  shark fishery, as well as many                                                                                establish opening dates and adjust
                                                                                                          individuals unable to attend a meeting,
                                                  approaches to future management that                                                                          quotas for the 2011 fishing season for
                                                                                                          NMFS also solicits written comments on
                                                  NMFS could implement in order to                                                                              sandbar sharks, non-sandbar large
                                                                                                          the ANPR (see DATES and ADDRESSES).
                                                  address these issues in the future. Some                                                                      coastal sharks (LCS), small coastal
                                                                                                            The meeting dates, locations, and
                                                  of the ideas discussed are specific                                                                           sharks (SCS), and pelagic sharks. Quotas
                                                                                                          times follow. All meetings will begin
                                                  changes to the current quota and permit                                                                       will be adjusted based on the framework
                                                                                                          with an opportunity for individuals to
                                                  structures, which could potentially be                                                                        established in Amendment 2 to the 2006
                                                                                                          view information on the issues raised in
                                                  implemented in the short-term through                                                                         Consolidated Highly Migratory Species
                                                                                                          this ANPR and ask questions followed
                                                  a regulatory action in one to two years.                                                                      Fishery Management Plan, which
                                                                                                          by a presentation and opportunity for
                                                  The other changes discussed include                                                                           requires adjustments for any over- and/
                                                                                                          public comment.
                                                  implementing a catch share or sector                                                                          or underharvests experienced during the
                                                  program for the Atlantic shark fishery,                   1. September 21–23, 2010: HMS
                                                                                                          Advisory Panel Meeting, Crowne Plaza                  2009 and 2010 Atlantic commercial
                                                  which could be implemented by                                                                                 shark fishing seasons. In addition to
                                                  amending the 2006 Consolidated HMS                      Hotel, 8777 Georgia Avenue, Silver
                                                                                                          Spring, MD 20910.                                     establishing opening dates and adjusting
                                                  FMP. It is NMFS’s goal to move forward                                                                        annual quotas, this proposed rule
                                                  with proactive management for the                         2. October, 21, 2010: Ocean County
                                                                                                          Library, Stafford Branch, 129 North                   analyzes adaptive management
                                                  Atlantic shark fishery and implement a                                                                        measures, such as various opening dates
                                                  viable and flexible solution that will                  Main Street, Manahawkin, New Jersey
                                                                                                          08050, 6–9 p.m.                                       for the fishing season as well as
                                                  achieve specific shark fishery goals and                                                                      allowing adjustments through inseason
                                                  objectives for the future of the Atlantic                 3. October 26, 2010: Manteo Town
                                                                                                          Hall, 407 Budleigh Street, Manteo,                    actions in the allowable number of fish
                                                  shark fishery.                                                                                                that can be taken via trip limits, to
                                                                                                          North Carolina 27954, 6–9 p.m.
                                                  V. Submission of Public Comments                          4. November 8, 2010: Belle Chasse                   provide flexibility in management in
                                                    The comment period for all topics                     Auditorium, 8398 Highway 23, Belle                    furtherance of equitable fishing
                                                  discussed in this ANPR closes on                        Chasse, Louisiana 70037, 6–9 p.m.                     opportunities to the extent practicable
                                                  January 14, 2011. Please see the                          5. December 15, 2010: West St.                      for commercial shark fishermen in all
                                                  ADDRESSES section of this ANPR for                      Petersburg Community Library, 6605                    regions and areas. The proposed
                                                  additional information regarding the                    5th Avenue North, St. Petersburg, FL                  measures could affect fishing
jdjones on DSK8KYBLC1PROD with PROPOSALS-1




                                                  submission of written comments.                         33710, 6–9 p.m.                                       opportunities for commercial shark
                                                    NMFS requests comments on the                           6. December 16, 2010: Fort Pierce                   fishermen in the Atlantic and Gulf of
                                                  potential adjustment of regulations or an               Library, 101 Melody Lane, Fort Pierce,                Mexico.
                                                  FMP amendment governing the Atlantic                    FL 34950, 5–8 p.m.                                    DATES: Written comments will be
                                                  shark quota and permit structure as well                                                                      accepted until October 20, 2010. NMFS
                                                  as comments on the potential                            Classification                                        will hold four public hearings on this
                                                  consideration of catch shares and                         This action is not significant pursuant             proposed rule on September 22, 2010, in
                                                  sectors for the Atlantic shark fishery.                 to Executive Order 12866.                             Silver Spring, MD; September 27, 2010,


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