[Federal Register Volume 66, Number 44 (Tuesday, March 6, 2001)]
[Rules and Regulations]
[Pages 13441-13443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5435]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 010112015-1015-01; I.D. 120500A]
RIN 0648-AO85


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.

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SUMMARY: NMFS issues emergency regulations to re-establish the 
commercial quotas for large and small coastal sharks and catch 
accounting/monitoring procedures at 1997 levels. These regulations are 
necessary to ensure that the regulations in force are consistent with 
the court-approved settlement agreement.

DATES: This emergency rule is effective March 6, 2001 through September 
4, 2001. Comments must be received no later than 5 p.m. on June 4, 
2001.

ADDRESSES: Written comments on this action must be mailed to 
Christopher Rogers, Acting 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 action may be obtained from 
Margo Schulze-Haugen 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 (Magnuson-Stevens Act). The Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by 
regulations at 50 CFR part 635.
    On May 2, 1997, NMFS was sued by the Southern Offshore Fishing 
Association (SOFA) and other commercial fishermen and dealers on a 
regulation that reduced the large coastal shark (LCS) commercial quota 
by 50 percent to 1,285 metric tons (mt) dressed weight (dw) and 
established a small coastal shark (SCS) commercial quota of 1,760 mt 
dw.
    In April 1999, in response to new requirements of the Magnuson-
Stevens Act, NMFS published the final HMS FMP. The HMS FMP included 
numerous measures to rebuild or prevent overfishing of Atlantic sharks 
in commercial and recreational fisheries, including a rebuilding plan 
for LCS that further reduced commercial quotas and measures to prevent 
overfishing of SCS. On June 25, 1999, SOFA and commercial fishermen and 
dealers sued NMFS on the commercial shark measures in the HMS FMP and 
its implementing regulations.
    On June 30, 1999, Judge Steven D. Merryday of the U.S. District 
Court for the Middle District of Florida enjoined the Atlantic shark 
commercial quotas and fish-counting methods (including the counting of 
dead discards and state commercial landings after Federal closures) 
adopted in the HMS FMP. The injunction ordered that NMFS maintain the 
commercial shark quotas and fish-counting methods at 1997 levels.
    On June 12, 2000, in response to a joint motion, Judge Merryday 
ordered that NMFS may proceed with implementation and enforcement of 
the prohibited species provisions adopted in the HMS FMP.

Settlement Agreement

    On November 21, 2000, plaintiffs and NMFS reached a settlement 
agreement

[[Page 13442]]

that would dismiss both lawsuits and prescribed actions to be taken by 
both parties. On December 7, 2000, Judge Merryday entered an order 
approving the settlement agreement. The settlement agreement requires 
NMFS to re-establish the 1997 commercial LCS quota and catch 
accounting/monitoring procedures (dead discards and state landings 
after Federal closure not counted against Federal quotas; no splitting 
of the LCS commercial quota into ridgeback and non-ridgeback subgroups; 
no minimum size for ridgeback LCS) pending an independent review of the 
1998 LCS stock assessment. The settlement agreement also requires NMFS 
to re-establish the 1997 SCS commercial quota pending a new SCS stock 
assessment. Both the independent review of the 1998 LCS stock 
assessment and a new SCS stock assessment are anticipated to be 
completed in 2001. NMFS also anticipates conducting a new LCS stock 
assessment in 2001, which will also be independently reviewed.
    NMFS determined that the settlement agreement was 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.
    This emergency rule is necessary because, since the court 
injunction was dissolved per the settlement agreement, the HMS FMP and 
its implementing regulations are in force. Specifically, without this 
emergency rule, the reduced LCS and SCS commercial quotas of 816 mt dw 
and 329 mt dw, respectively, and the catch accounting/monitoring 
procedures adopted in the HMS FMP would remain in force, inconsistent 
with the court-approved settlement agreement. This emergency rule will 
ensure that the regulations in force are consistent with the court-
approved settlement agreement.

Commercial Quotas and Catch Accounting/Monitoring Procedures

    Pending completion of the independent review of the 1998 LCS stock 
assessment, this emergency rule establishes the LCS commercial quota at 
1,285 mt dw; suspends the regulation on the ridgeback LCS minimum size; 
suspends the regulation on season-specific quota adjustments for LCS 
and SCS; and suspends the regulation on counting dead discards and 
state landings after Federal closures against Federal quotas. Pending 
completion of a new SCS stock assessment, this emergency rule 
establishes the SCS commercial quota at 1,760 mt dw. NMFS will ensure 
that the independent review of the 1998 LCS stock assessment and new 
stock assessments for LCS and SCS are completed as soon as possible. 
NMFS will take appropriate action at the earliest practicable date upon 
completion of these assessments and reviews to ensure the conservation 
of Atlantic sharks while maintaining a sustainable fishery in the long-
term.

Classification

    These emergency regulations are published under the authority of 
the Magnuson-Stevens Act. The Assistant Administrator for Fisheries 
(AA) has determined that these regulations are necessary to ensure that 
regulations in force are consistent with the court-approved settlement 
agreement.
    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 and is the surest and quickest 
way to conserve Atlantic sharks and ensure the long-term sustainability 
of shark fisheries. While this action could result in further LCS stock 
declines in the short-term, NMFS believes that the risks of protracted 
litigation (potentially several years) and uncertain outcome outweigh 
these short-term negative ecological impacts.
    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 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, re-
establishing the 1997 management measures for the duration of this 
emergency rule will not change the short-term economic benefits or 
costs associated with the fisheries.
    This emergency rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    NMFS issues this emergency rule, effective for 180 days, as 
authorized by section 305(c) of the Magnuson-Stevens Act. This 
emergency rule may be extended for an additional 180 days provided the 
public has had an opportunity to comment on the emergency rule and, at 
the time of extension, the agency is actively pursuing a plan amendment 
or proposed regulations to conserve Atlantic sharks on a permanent 
basis. NMFS will consider public comments on this emergency rule in 
determining whether to maintain or extend this emergency rule. 
Responses to comments will be provided if the emergency rule is 
revoked, modified, or extended. Because no general notice of proposed 
rulemaking is required to be published in the Federal Register for this 
emergency rule, 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), as such provisions would be 
contrary to public interest. This emergency rule is necessary to meet 
the requirements of a court-approved settlement agreement. Further 
litigation that could further delay implementation of appropriate 
quotas is contrary to the public interest, because of the concern that 
LCS stocks would experience further decline during any protracted 
litigation.
    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, because such delay would be contrary to 
the public good. The AA finds that this measure is necessary to meet 
the timely requirements of the court order and to achieve the agency's 
goals, as described here. Given NMFS's ability to communicate rapidly 
these regulations to fishing interests through the HMS Fax network, 
NOAA weather radio, press releases, mailing lists, and the HMS 
Infoline, 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: February 28, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, 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:


[[Page 13443]]


    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 effective from 
March 6, 2001 through September 4, 2001.

    3. In Sec. 635.27, paragraphs (b)(1)(i), (ii), and (iv)(A) and (C) 
are suspended and paragraphs (b)(1)(v) and (vi) are added, effective 
from March 6, 2001 through September 4, 2001, to read as follows:


Sec. 635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (v) Large coastal and small 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. 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 with the Office of the Federal 
Register 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. 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.
    (vi) NMFS will adjust the next year's semiannual quota for pelagic 
sharks to reflect actual landings during any semiannual period. For 
example, a commercial quota underharvest or overharvest in the season 
that begins January 1 will result in an equivalent increase or decrease 
in the following year's quota for the season that begins January 1, 
provided that the annual quota is not exceeded. NMFS will file with the 
Office of the Federal Register for publication in the Federal Register 
notification of any adjustment at least 30 days prior to the start of 
the next fishing season.
* * * * *

    4. In Sec.  635.28, paragraph (b)(1) is suspended and paragraph 
(b)(4) is added, effective from March 6, 2001 through September 4, 
2001, 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. 01-5435 Filed 3-5-01; 8:45 am]
BILLING CODE 3510-22-S