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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XU54

# AGENCY:

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

# ACTION:

 Notice of non-compliance referral. 

# SUMMARY:

 NMFS announces that on February 4, 2010, the Atlantic States Marine Fisheries Commission (Commission) found the State of New Jersey out of compliance with the Commission's Interstate Fishery Management Plan (ISFMP) for Coastal Sharks. Subsequently, the Commission referred the matter to NMFS, under delegation of authority from the Secretary of Commerce, for federal non-compliance review under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act). The Atlantic Coastal Act mandates that NMFS must review the Commission's non-compliance referral and make specific findings within 30 days after receiving the referral. If NMFS determines that New Jersey failed to carry out its responsibilities under the Coastal Sharks ISFMP, and if the measures it failed to implement are necessary for conservation, then, according to the Atlantic Coastal Act, NMFS must declare a moratorium on fishing for coastal sharks in New Jersey waters. 

# DATES:

                         NMFS intends to make a determination on this matter by March 10, 2010, and will publish its findings in the                         **Federal Register**                         immediately thereafter.                     

# ADDRESSES:

                         Written comments should be sent to Alan Risenhoover, Director,                               ( print page 9159)                            Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Room 13362, Silver Spring, MD 20910. Mark the outside of the envelope “Comments on Coastal Shark Non-Compliance.” Comments may also be sent via fax to (301) 713-0596.                    

# FOR FURTHER INFORMATION CONTACT:

 Brian Hooker, Fishery Management Specialist, NMFS Office of Sustainable Fisheries, (301) 713-2334.

# SUPPLEMENTARY INFORMATION:

The Coastal Shark ISFMP includes management measures for several species of Atlantic sharks. The implementation of these regulations is necessary to rebuild depleted shark stocks, ensure sustainable harvest of others, and provide protection for sharks in state nursing and pupping grounds. The Commission's Technical Committee has identified Delaware Bay as one of the most important nursing grounds for depleted sandbar sharks on the Atlantic Coast. Included in the 22 commercial and recreational regulations in the FMP is a seasonal closure from Virginia north through New Jersey to protect pupping sandbar sharks. On February 4, 2010, the Commission found the State of New Jersey out of compliance for not fully and effectively implementing and enforcing the Coastal Shark ISFMP. The Commission subsequently referred its non-compliance finding to NMFS.

Federal response to a Commission non-compliance referral is governed by the Atlantic Coastal Act. Under the Atlantic Coastal Act, the Secretary of Commerce (Secretary) must make two findings within 30 days after receiving the non-compliance referral. First, the Secretary must determine whether the state in question (in this case, New Jersey) has failed to carry out its responsibilities under the ISFMP. Second, the Secretary must determine whether the measures that the State has failed to implement or enforce are necessary for the conservation of the fishery in question. If the Secretary of Commerce makes affirmative findings on both criteria, then the Secretary must implement a moratorium on fishing in the fishery in question (in this case coastal sharks) within the waters of the non-complying state (in this case, New Jersey). Further, the moratorium must become effective within six months of the date of the Secretary's non-compliance determination. To the extent that the allegedly offending state later implements the involved measure, the Atlantic Coastal Act allows the state to petition the Commission that it has come back into compliance, and if the Commission concurs, the Commission will notify the Secretary and, if the Secretary concurs, the moratorium will be withdrawn. The Secretary has delegated Atlantic Coastal Act authorities to the Assistant Administrator for Fisheries at NMFS.

NMFS has notified the State of New Jersey, the Commission, the Mid-Atlantic Fishery Management Council, and the New England Fishery Management Council, in separate letters, of its receipt of the Commission's non-compliance referral. In the letters, NMFS solicits comments from the Commission and Councils to the extent either entity is interested in providing such comments. NMFS also indicates to the State of New Jersey that the State is entitled to meet with and present its comments directly to NMFS if the State so desires. 

                    NMFS intends to make its non-compliance determination on or about March 10, 2010, which is 30 days after receipt of the Commission's non-compliance referral. NMFS will announce its determination by                     **Federal Register**                     notice immediately thereafter. To the extent that NMFS makes an affirmative non-compliance finding, NMFS will announce the effective date of the moratorium in that                     **Federal Register**                     notice.                

Authority:16 U.S.C. 5101*et seq.*

Dated: February 24, 2010.

 James P. Burgess,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

[FR Doc. 2010-4185 Filed 2-26-10; 8:45 am]

BILLING CODE 3510-22-S