[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Rules and Regulations]
[Pages 67118-67121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31832]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 011218303-1303-01; I.D. 110501B]
RIN 0648-AP70


Atlantic Highly Migratory Species; Commercial Shark Management 
Measures

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

ACTION: Emergency rule; request for comments; fishing season 
notification.

-----------------------------------------------------------------------

SUMMARY: NMFS issues an emergency rule to establish the commercial 
quotas for large and small coastal sharks at 1,285 metric tons (mt) 
dressed weight (dw) and 1,760 mt dw, respectively. These regulations 
are necessary to ensure that the regulations in force are consistent 
with a court-approved settlement agreement and are based on the best 
available science. NMFS also notifies eligible participants of the 
opening and closing dates for the Atlantic large coastal sharks (LCS), 
small coastal sharks (SCS), pelagic sharks, blue sharks, and porbeagle 
sharks fishing seasons.

DATES: This emergency rule is effective as of 12:01 a.m., local time, 
on January 1, 2002, through July 1, 2002.
    The fishery opening for LCS is effective January 1, 2002 through 
11:30 p.m., local time, April 15, 2002. The LCS closure is effective 
from 11:30 p.m., local time, April 15, 2002, through June 30, 2002.
    The fishery opening for SCS, pelagic sharks, blue sharks, and 
porbeagle sharks is effective January 1, 2001, through June 30, 2001, 
unless otherwise modified or superseded through publication of a 
closure notice in the Federal Register.
    Comments on the emergency rule must be received no later than 5 
p.m. on March 28, 2002.

ADDRESSES: Written comments on this emergency rule must be mailed to 
Christopher Rogers, Chief, NMFS Highly Migratory Species Management 
Division, 1315 East-West Highway, Silver Spring, MD 20910; or faxed to 
301-713-1917. Comments will not be accepted if submitted via email or 
the Internet. Copies of the Environmental Assessment and Regulatory 
Impact Review prepared for this emergency rule may be obtained from 
Margo Schulze-

[[Page 67119]]

Haugen or Karyl Brewster-Geisz at the same address.

FOR FURTHER INFORMATION CONTACT: Margo Schulze-Haugen or Karyl 
Brewster-Geisz at 301-713-2347.

SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act. The Fishery Management Plan for Atlantic Tunas, 
Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR 
part 635.
    On November 21, 2000, Southern Offshore Fishing Association and 
other commercial fishermen and dealers (plaintiffs) and NMFS reached a 
settlement agreement that prescribed actions to be taken by both 
parties in order to resolve issues raised in two lawsuits brought 
against NMFS by the plaintiffs. The first lawsuit was filed on May 2, 
1997, regarding the LCS quota decrease of 50 percent. The second 
lawsuit was filed on June 25, 1999, regarding the commercial shark 
measures in the HMS FMP and its implementing regulations.
    On December 7, 2000, Judge Steven D. Merryday of the U.S. District 
Court for the Middle District of Florida entered an order approving the 
settlement agreement. The settlement agreement required NMFS to 
maintain the 1997 commercial LCS quotas and the catch accounting/
monitoring procedures pending an independent review of the 1998 LCS 
stock assessment. The settlement agreement also required NMFS to 
maintain the 1997 SCS commercial quota pending a new SCS stock 
assessment. On March 6, 2001, NMFS published in the Federal Register an 
emergency rule implementing the measures in the settlement agreement 
pending the results of the independent peer review (65 FR 13441). That 
emergency rule expired on September 4, 2001.
    In October 2001, NMFS received from Natural Resources Consultants 
Inc. the complete peer reviews of the 1998 LCS stock assessment. Three 
of the four reviews found that the scientific conclusions and 
scientific management recommendations contained in the 1998 LCS stock 
assessment were not based on scientifically reasonable uses of the 
appropriate fisheries stock assessment techniques and on the best 
available (at the time of the 1998 LCS stock assessment) biological and 
fishery information relating to LCS. Because of this conclusion, NMFS 
regards the management recommendations of the 1996 stock assessment to 
be an appropriate basis for any rulemaking, pending completion of a new 
stock assessment. Thus, having considered the peer review's overall 
conclusion, the terms of the settlement agreement, statements by the 
individual reviewers, and the recommendations of the 1996 stock 
assessment, NMFS will maintain the 1997 commercial LCS quota level 
until a new LCS stock assessment that employs improved assessment 
techniques and addresses the recommendations and comments of the four 
reviewers can be completed and independently peer reviewed. NMFS 
anticipates completion of a new LCS stock assessment in early 2002. 
Additionally, consistent with the court-approved settlement agreement, 
NMFS will maintain the SCS commercial shark quota at the 1997 level 
pending a new stock assessment in early 2002.
    NMFS initially determined that the settlement agreement is 
appropriate because it will conserve Atlantic sharks while maintaining 
a sustainable fishery in the long-term; move the management process for 
Atlantic sharks forward through quality-controlled scientific 
assessment and appropriate rulemaking; and promote confidence in the 
management process and its underlying science. NMFS continues to 
maintain this view.
    This emergency rule is necessary to manage and conserve LCS based 
on the best scientific information available, pending completion of a 
new stock assessment and consistent with the terms of the court-
approved settlement agreement. At this time, NMFS considers the best 
available science to be the recommendations of the 1996 stock 
assessment in combination with current landings data and the 
independent reviews of the 1998 stock assessment. Without this 
emergency rule, the reduced LCS and SCS commercial quotas of 816 mt dw 
and 329 mt dw, respectively, adopted in the HMS FMP and based on the 
1998 LCS stock assessment would be in force. However, the independent 
peer review found that some of the techniques used in the 1998 LCS 
stock assessment were not appropriate and some of the data used were 
unreliable. Implementing these quotas prior to completion of a new 
stock assessment would be inconsistent with both the court-approved 
settlement agreement and the recommendations of the 1996 stock 
assessment.

Commercial Management Measures

    Pending completion of new LCS and SCS stock assessments, this 
emergency rule establishes the LCS commercial quota at 1,285 mt dw; 
establishes the SCS commercial quota at 1,760 mt dw; suspends the 
regulation on the ridgeback LCS minimum size; suspends the regulation 
on counting dead discards and state landings after Federal closures 
against Federal quotas for all sharks; suspends the regulation on 
season-specific quota adjustments for LCS and SCS; and establishes a 
regulation that adjusts the LCS or SCS quota based on the previous 
season's landings. All of the above management measures will be re-
evaluated upon completion of the stock assessments and the LCS peer 
review before they are re-implemented. This emergency rule does not 
affect commercial management measures for pelagic sharks, except for 
counting dead discards or state landings against the quota, and does 
not affect the management measures for prohibited species.
    NMFS considered other alternatives including implementing the HMS 
FMP quotas based on the 1998 stock assessment, implementing the 
ridgeback LCS minimum size, counting state landings after a Federal 
closure and dead discards against Federal quotas, and changing the 
pelagic shark sub-quotas into one pelagic shark quota. However, based 
on the comments and recommendations of the reviewers, the 
recommendations of the 1996 stock assessment, current landings data, 
and the fact that the next stock assessment will consider the efficacy 
of most of these management measures, NMFS concluded that, for the 
short duration of this emergency rule (180 days with a possible 
extension of another 180 days), the management measures implemented 
would conserve and maintain the shark stocks while having few impacts 
on the fishery. Upon completion of the new stock assessments and the 
independent review of the new LCS stock assessment, NMFS will take the 
appropriate actions based on the additional information to ensure the 
conservation of Atlantic sharks while rebuilding shark stocks and 
maintaining a sustainable fishery in the long-term.
    NMFS is making one additional adjustment. NMFS will count any 
overharvest or underharvest in one season against the following season 
for LCS and SCS. In the past, this accounting method was used only for 
overharvest and underharvest in the first season; any overharvest in 
the second season was not counted against the following season's 
semiannual quota (nor was any underharvest added to the next year). 
This lack of across-year accounting resulted in the annual quotas being 
exceeded in several years. This change is to ensure that the fishing 
mortality is accounted for and does not exceed the fishing mortality

[[Page 67120]]

recommended by the 1996 stock evaluation workshop while also ensuring 
that fishermen have an opportunity to catch the available quota.

Recreational Management Measures

    This emergency rule does not change the recreational management 
measures for Atlantic sharks. NMFS did consider re-instating the 1997 
recreational retention limits of two sharks of any species per trip, 
with no minimum size, and an additional two Atlantic sharpnose sharks 
per person per trip. However, based on current and past landings data, 
the recommendation of the 1996 stock assessment, and individual 
statements of the peer reviewers, NMFS believes that re-instating the 
1997 retention limit could result in a level of fishing mortality that 
is not consistent with the recommendations of the 1996 stock evaluation 
workshop. Thus, for the duration of this emergency rule, NMFS will 
maintain the current regulations. NMFS will take appropriate action 
with respect to recreational fishing regulations at the earliest 
practicable date upon completion of the new stock assessments and the 
independent review of the new LCS stock assessment.

Annual Landings Quotas

    The 2002 annual landings quotas for LCS and SCS are established at 
1,285 mt dw and 1,760 mt dw, respectively. The 2002 quota levels for 
pelagic, blue, and porbeagle sharks are established at 488 mt dw, 273 
mt dw, and 92 mt dw, respectively.
    Of the 697 mt dw established for the second 2001 semiannual LCS 
season (66 FR 33918, June 26, 2001), 604 mt dw was taken. NMFS is 
adding the remaining 93 mt dw to the available quota for the first 2002 
semiannual fishing season. As such, the LCS quota for the first 2002 
semiannual season is 735.5 mt dw. The SCS first semiannual quota for 
2002 is established at 880 mt dw. The first 2002 semiannual quotas for 
pelagic, blue, and porbeagle sharks are established at 244 mt dw, 136.5 
mt dw, and 46 mt dw, respectively.
    NMFS will take appropriate action before July 1, 2002, in order to 
determine and announce the second 2002 semiannual quotas for Atlantic 
sharks.

Fishing Season Notification

    The first semiannual fishing season of the 2002 fishing year for 
the commercial fishery for LCS, SCS, and pelagic sharks in the western 
north Atlantic Ocean, including the Gulf of Mexico and the Caribbean 
Sea, will open January 1, 2002. To estimate the closure dates of the 
LCS, NMFS used the average daily catch rates for each species group 
from the first seasons from the years 1998, 1999, 2000, and 2001 while 
also considering the reporting dates of permitted shark dealers. 
Looking at weekly catch rates in recent years, between 92 and 103 
percent of the available quota would likely be taken between the first 
and second weeks of April. The end of the second week of April 
corresponds with the end of the first of two monthly reporting periods 
for permitted shark dealers. Accordingly, the Assistant Administrator 
for Fisheries (AA) has determined that the LCS quota for the first 2002 
semiannual season will likely be attained by April 15, 2002. Thus, the 
LCS fishery will close April 15, 2002, at 11:30 p.m. local time.
    When quotas are projected to be reached for the SCS, pelagic, blue, 
or porbeagle shark fisheries, the AA will file notification of closure 
at the Office of the Federal Register at least 14 days before the 
effective date.
    During a closure, retention of, fishing for, possessing or selling 
LCS are prohibited for persons fishing aboard vessels issued a limited 
access permit under 50 CFR 635.4. The sale, purchase, trade, or barter 
of carcasses and/or fins of LCS harvested by a person aboard a vessel 
that has been issued a permit under 50 CFR 635.4 are prohibited, except 
for those that were harvested, offloaded, and sold, traded, or bartered 
prior to the closure and were held in storage by a dealer or processor.

Catch Limits

    The existing prohibited species provisions in 50 CFR part 635 will 
remain in effect. A list of prohibited shark species can be found in 
Table 1 of Appendix A to part 635, subpart D. In addition, the limited 
access provisions for commercial harvests will remain in effect, 
including trip limits for directed and incidental limited access shark 
permit holders.
    Those vessels that have not been issued a limited access permit 
under 50 CFR 635.4 may not sell sharks and are subject to the 
recreational size limits and retention limits specified at 50 CFR 
635.20(e) and 635.22(c), respectively. The recreational fishery is not 
affected by any closure in the commercial fishery.

Comment Period

    NMFS is accepting comments regarding this emergency rule for 90 
days through March 28, 2002. Comments on these management measures were 
also requested in an emergency rule published on March 6, 2001 (65 FR 
13441). NMFS expects new LCS and SCS stock assessments to be completed 
in early 2002. Based on these stock assessments and any comments 
received on this rule, NMFS will modify these regulations through a 
standard rulemaking process as appropriate.

Classification

    These emergency regulations are published under the authority of 
the Magnuson-Stevens Fishery Conservation and Management Act. The AA 
has determined that these emergency regulations are necessary to ensure 
that regulations in force are consistent with the court-approved 
settlement agreement and with the best available science, which at this 
time is considered to be the recommendations of the 1996 stock 
assessment in combination with current landings data and the individual 
peer reviews of the 1998 stock assessment.
    NMFS prepared an Environment Assessment for this emergency rule 
that describes the impact on the human environment and found that no 
significant impact on the human environment would result. This 
emergency rule is of limited duration. The quota levels established in 
this rule are based on stock assessment results that found these levels 
were appropriate to maintain the stocks pending implementation of a 
rebuilding plan. While the most recent 1998 LCS stock assessment 
indicated that maintaining these quota levels could result in further 
stock declines, the results of the independent peer review indicate 
that some of the techniques and data used in the 1998 LCS stock 
assessment were not appropriate and that models used in earlier stock 
assessments should have been re-assessed and utilized if appropriate. 
Thus, applying the results and recommendations of earlier assessments 
pending new LCS and SCS assessments is the appropriate action to 
conserve Atlantic sharks, ensure the long-term sustainability of shark 
fisheries, and ensure management of Atlantic sharks is based on the 
best available science.
    NMFS also prepared a Regulatory Impact Review for this action which 
assesses the economic costs and benefits of the action. Because the 
fishing quotas and the catch accounting/ monitoring procedures for the 
LCS or SCS fisheries, as adopted in the HMS FMP and its implementing 
regulations, have been thus far enjoined by court order and later by 
the settlement agreement, maintaining the 1997 management measures for 
the duration of this emergency rule will not change the

[[Page 67121]]

current economic benefits or costs associated with the fisheries. 
Similarly, because the recreational retention limit has been in place 
since 1999 and because of the relatively short duration of this 
emergency rule, these management measures will not change the current 
economic benefits or costs associated with the recreational fisheries.
    This emergency rule to establish the 2002 landings quotas and other 
shark management actions has been determined to be not significant for 
the purposes of Executive Order 12866.
    Additionally, the ancillary action announcing the fishing season is 
taken under 50 CFR 635.27(b) and is exempt from review under Executive 
Order 12866.
    Because no general notice of proposed rulemaking is required to be 
published in the Federal Register for this emergency rule by 5 U.S.C. 
553 or by any other law, the analytical requirements of the Regulatory 
Flexibility Act do not apply; thus, no Regulatory Flexibility Analysis 
was prepared.
    The AA finds that there is good cause to waive the requirement to 
provide prior notice and an opportunity for public comment pursuant to 
authority set forth at 5 U.S.C. 553(b)(B). It would be impracticable to 
provide prior notice and opportunity for comment because it would 
prevent the agency from meeting the requirements of a court-approved 
settlement agreement, and ensuring that management measures in place at 
the beginning of the 2001 shark fishing season (January 1, 2002) are 
based on the best available science. If these regulations are not in 
place at the beginning of the 2001 shark fishing season then more 
restrictive management measures (e.g. lower annual landings quotas and 
measures to count dead discards against that lower quota) that could 
significantly impact the fishery, and that currently lack an adequate 
scientific basis, would be in place. Comments received on this 
emergency rule will be considered by NMFS when determining whether to 
extend this emergency rule for another 180 day period and during 
development of a new rule. The public will have additional 
opportunities to comment on these or similar measures during the next 
rulemaking process expected shortly after completion of the new stock 
assessments that are anticipated in early 2002.
    The AA, under 5 U.S.C. 553(d)(3), also finds that there is good 
cause to waive the 30-day delay in the effective date of this emergency 
rule, as is normally required. The AA finds that this measure is 
necessary to meet the requirements of the court-approved settlement 
agreement and to achieve the agency's goals, as described herein. Given 
NMFS's ability to communicate these regulations to fishing interests 
rapidly through the HMS Fax network, NOAA weather radio, press 
releases, mailing lists, and the HMS Infoline, the fact that the public 
has had notice about the settlement agreement and its possible effects 
since December 2000, and the fact that the management measures 
implemented in this emergency rule are less restrictive than the 
management measures currently in effect, the AA believes that affected 
fishermen and other interested persons will have sufficient and timely 
notice of this action.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing Vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics, Treaties.

    Dated: December 19, 2001.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    1. The authority citation for 50 CFR part 635 continues to read as 
follows:

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


Sec.  635.20  [Amended]

    2. In Sec.  635.20, paragraph (e)(1) is suspended.

    3. In Sec.  635.27, paragraphs (b)(1)(i), (b)(1)(ii), (b)(1)(iv)(A) 
and (b)(1)(iv)(C) are suspended, and paragraphs (b)(1)(iv)(D), 
(b)(1)(v), and (b)(1)(vi) are added to read as follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (iv) * * *
    (D) NMFS will adjust the next year's corresponding semiannual quota 
for pelagic sharks to reflect actual landings during any semiannual 
period. NMFS will adjust the semiannual quota for large coastal and 
small coastal sharks to reflect actual landings during the previous 
semiannual period. Such adjustment shall be an increase or decrease 
equivalent to the amount of underharvest or overharvest. NMFS will 
file, for publication in the Federal Register, notification of any 
adjustment at least 30 days prior to the start of the next fishing 
season.
    (v) Large coastal sharks. The annual commercial quota for large 
coastal sharks is 1,285 mt dw, divided between two equal semiannual 
seasons, January 1 through June 30, and July 1 through December 31. The 
quota for each semiannual large coastal shark season is 642.5 mt dw 
unless otherwise specified in the Federal Register as provided in 
paragraph (b)(1)(iv) of this section. The length of each large coastal 
shark season will be determined based on the projected catch rates, 
available quota, and other relevant factors. NMFS will file, for 
publication in the Federal Register, notification of the length of each 
season for large coastal sharks at least 30 days prior to the beginning 
of the season.
    (vi) Small coastal sharks. The annual commercial quota for small 
coastal sharks is 1,760 mt dw, divided between two equal semiannual 
seasons, January 1 through June 30, and July 1 through December 31. The 
quota for each semiannual small coastal shark season is 880 mt dw 
unless otherwise specified in the Federal Register as provided in 
paragraph (b)(1)(iv) of this section.
* * * * *

    4. In Sec.  635.28, paragraph (b)(1) is suspended, and paragraph 
(b)(4) is added to read as follows:


Sec.  635.28  Closures.

* * * * *
    (b) * * *
    (4) The commercial fishery for large coastal sharks will remain 
open for fixed semiannual fishing seasons, as specified at Sec.  
635.27(b)(1)(v). From the effective date and time of a season closure 
until additional quota becomes available, the fishery for large coastal 
sharks is closed, and sharks of that species group may not be retained 
on board a fishing vessel issued a commercial permit pursuant to Sec.  
635.4.
* * * * *
[FR Doc. 01-31832 Filed 12-27-01; 8:45 am]
BILLING CODE 3510-22-S