[Federal Register Volume 67, Number 28 (Monday, February 11, 2002)]
[Rules and Regulations]
[Pages 6194-6202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3113]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600, 635, 648, and 660

[Docket No. 010612153-2015-02; I.D. 041901A]
RIN 0648-AP21


Fisheries Off West Coast States and in the Western Pacific; 
Atlantic Highly Migratory Species; Fisheries of the Northeastern United 
States; Implementation of the Shark Finning Prohibition Act

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

ACTION: Final rule.

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SUMMARY: NMFS publishes this final rule to implement the provisions of 
the Shark Finning Prohibition Act (Act). This final rule prohibits any 
person under U.S. jurisdiction from engaging in shark finning, 
possessing shark fins harvested on board a U.S. fishing vessel without 
corresponding shark carcasses, or landing shark fins harvested without 
corresponding carcasses. Finning is the practice of removing the fin or 
fins from a shark and discarding the remainder of the shark at sea. 
This final rule is issued in accordance with the requirement of the Act 
that the Secretary of Commerce (Secretary) issue regulations to 
implement the Act. This final rule does not alter or modify shark 
finning regulations already in place in the Atlantic for Federal permit 
holders.

DATES: Effective March 13, 2002.

ADDRESSES: Copies of the environmental assessment (EA) and the 
regulatory impact review/final regulatory flexibility analysis (RIR/
FRFA) may be obtained from the Southwest Regional Administrator, 
Southwest Region, NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802-4213; 
fax 562-980-4047.

FOR FURTHER INFORMATION CONTACT: Svein Fougner, Assistant Regional 
Administrator for Sustainable Fisheries, Southwest Region, NMFS, at 
562-980-4040; or Charles Karnella, Administrator, Pacific Island Area 
Office, NMFS, at 808-973-2935; or Karyl Brewster-Geisz, NMFS 
headquarters, at 301-713-2347.

SUPPLEMENTARY INFORMATION:   

Electronic Access

    This Federal Register document is also accessible via the Internet 
at the Office of the Federal Register's website at http://www.access.gpo.gov/su-docs/aces/aces140.html

Background

    The proposed rule published for this action (66 FR 34401, June 28, 
2001) provided substantial background information on the issue of shark 
finning. A summary of that information is provided here.The Act was 
passed by Congress and signed by the President in December 2000 out of 
concern for the status of shark populations and the effects of fishing 
mortality associated with finning on shark populations. The Act amends 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The Act prohibits any person subject to U.S. jurisdiction 
from (1) engaging in shark finning, (2) possessing shark fins aboard a 
U.S. fishing vessel without the corresponding carcass, or (3) landing 
shark fins without a corresponding carcass.
    The strong international market for shark fins has increased the 
potential for fishing shark stocks at unsustainable levels. 
Uncontrolled shark finning may lead to unsustainable shark harvests, as 
well as to the waste of usable (but often relatively lower value) shark 
meat. The intent of the Act is to end the practice of shark finning and 
support domestic and international conservation of shark stocks.

Provisions of the Final Rule

    To implement the Act, this final rule prohibits: (1) Any person 
from engaging in shark finning aboard a U.S. fishing vessel; (2) any 
person from possessing shark fins on board a U.S. fishing vessel 
without the corresponding shark carcasses; (3) any person from landing 
from a U.S. fishing vessel shark fins without the corresponding 
carcasses; (4) any person on a foreign fishing vessel from engaging in 
shark finning in the U.S. exclusive economic zone (EEZ), from landing 
shark fins without the corresponding carcass into a U.S. port, and from 
transshipping shark fins in the U.S. EEZ; and (5) the sale or purchase 
of shark fins taken in violation of the above prohibitions. In 
addition, this final rule requires that all shark fins and carcasses be 
landed and weighed at the same time, once a landing of shark fins and/
or shark carcasses has begun. This rule does not affect the reporting

[[Page 6195]]

requirements currently in place for fisheries that take sharks or for 
any U.S. vessels that fish solely in state waters and that have not 
been issued a Federal Atlantic shark or dogfish permit.
    This final rule establishes a rebuttable presumption that any shark 
fins possessed on board a U.S. fishing vessel, or landed from any 
fishing vessel, were taken, held, or landed in violation of these 
regulations if the total wet weight of the shark fins exceeds 5 percent 
of the total dressed weight of shark carcasses landed or found on board 
the vessel. It would be the responsibility of the person conducting the 
activity to rebut the presumption by providing evidence that the fins 
were not taken, held or landed in violation of these regulations. NMFS 
has used wet weight to apply the 5-percent limit for shark fins landed 
in the Atlantic, Gulf, and Caribbean, where the fins are generally wet 
when landed. In the proposed rule for this action, NMFS specifically 
requested comments regarding how the weight of shark fins should be 
determined for purposes of this final rule. Public comments generally 
favored the use of wet weight, and this approach is maintained in the 
final rule for consistency with the approach used in the Atlantic shark 
fisheries.
    The prohibition of landing shark fins without corresponding 
carcasses extends to any vessel (including a cargo or shipping vessel) 
that obtained those fins from another vessel at sea. Any such at-sea 
transfer of shark fins effectively would make the receiving vessel a 
``fishing vessel,'' as the receiving vessel is acting ``in support of 
fishing.'' Thus, the receiving vessel is prohibited from landing shark 
fins without corresponding carcasses under this final rule.

Applicability in State Waters

    NMFS requested public comment on whether the prohibitions in the 
Act should be applied to activities in state waters and the possession 
or landing of fins from sharks harvested from state waters. After 
reviewing the language of the Act and its legislative history, together 
with the public comments on this issue, NMFS concludes that the final 
rule should not operate to alter or diminish the jurisdiction or 
authority of any state within its boundaries. Therefore, this final 
rule does not apply to activities by persons on vessels fishing only in 
state waters. However, consistent with existing regulations at 50 CFR 
635.4(a)(10) and 648.4(b), any person aboard a vessel issued an 
Atlantic shark or spiny dogfish permit shall be, as a condition of such 
permit, subject to the requirements of this subpart during the period 
of validity of the permit, without regard to whether the fins were 
taken from sharks harvested within or outside the U.S. EEZ. Persons 
aboard such federally permitted vessels that fish within the waters of 
a state that has more restrictive regulations pertaining to shark 
finning must abide by any of the state's regulations that are more 
restrictive. Because Pacific states, by and large, already prohibit 
finning, NMFS decided not to enact similar provisions in the Pacific.

Effects of Final Action

    This final rule will directly affect (1) owners, operators, and 
crew of U.S. fishing vessels that engage in finning, and in landing and 
selling those fins; (2) owners and employees of U.S. firms that buy and 
sell shark fins harvested in and beyond the U.S. EEZ (which could 
include U.S. fishing vessels and foreign vessels that obtain fins 
without carcasses from foreign vessels at sea) or that sell sharks 
harvested by vessels that have been issued a Federal Atlantic shark or 
spiny dogfish permit; and (3) owners, operators, and crew of foreign 
fishing vessels that would otherwise land shark fins without carcasses 
in U.S. ports. Shark finning has been prohibited in the Federal waters 
of the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea since 1993, 
and finning of spiny dogfish in this region was prohibited in 2000. 
Further, finning is effectively prohibited under state regulations on 
the West Coast and in the north Pacific, as well as in a number of 
Atlantic states and Hawaii. Therefore, there will be minimal impacts in 
these areas.
    Most, if not all, of the impacts will likely affect businesses in 
the western Pacific. This final rule is expected to have moderate 
impacts on fishermen and businesses in Guam and American Samoa, where 
shark fin landings have been made by U.S. and foreign vessels and 
substantial sales and trade in shark fins have been conducted for many 
years. In Guam and American Samoa, domestic landings of shark fins have 
been very low; however, foreign longline vessels have landed shark fins 
there in the past. Under this final rule, sales of those fins would be 
prohibited unless the corresponding carcasses were also landed. As 
there is no market for carcasses, it is likely that shark fin landings 
will cease or drop to very low levels. This would affect vessel sales 
as well as the earnings of crew on foreign fishing vessels because the 
revenue from fin sales often accrues directly to crew members. If that 
income is reduced, there could be less spending by crew members in port 
calls in American Samoa and Guam. It is estimated that shark finning 
accounts for between $1.8 million and $2.5 million of economic activity 
in the western Pacific (not including the values formerly attributable 
to finning by domestic vessels in Hawaii until 2000, when finning was 
prohibited).
    This final rule may indirectly affect U.S. retailers and consumers 
of shark fins, but the extent of impact cannot be determined with 
available data. It is likely that shark fins, which would no longer be 
available in large quantities from domestic landings, would continue to 
be available through air, ocean, or surface freight shipments. It is 
also possible that the price of shark fins would rise due to lower 
domestic supply. If a market for shark carcasses could be developed, 
the effects of the landings prohibition on fins without carcasses could 
be alleviated somewhat. Because NMFS' interpretation of the Act is that 
it targets fishing vessels and was not meant to interfere with 
international trade, NMFS has drafted this final rule not to directly 
affect the owners and employees of businesses that are engaged in 
regular domestic and international cargo shipments of, and trade in, 
shark fins, or the owners and employees of businesses that provide 
supplies and services to foreign fishing vessels that may (but do not 
necessarily) engage in shark finning and associated sales.
    This final rule does not establish any new reporting or 
recordkeeping requirements. Reporting requirements currently in place 
are believed to be sufficient for monitoring and enforcing these 
regulations. However, these regulations may be amended if information 
or conditions demonstrate that additional reporting or recordkeeping 
requirements are necessary to achieve the purposes of the Act. NMFS 
will work with the regional fishery management councils (councils), 
interstate marine fisheries commissions, and states to determine 
whether changes are needed to ensure adequate records for monitoring 
the fisheries and enforcing the prohibitions. If any changes are needed 
in reporting and recordkeeping requirements, they may be made 
nationally or in separate regions.

Alternative Construction of the Statute

    NMFS considered applying broader interpretations of the Act that 
would likely have had much greater impacts on foreign fishermen. One 
alternative that NMFS considered would have prohibited foreign fishing 
vessels from possessing shark fins without carcasses while in U.S. 
ports. This could have

[[Page 6196]]

resulted in a substantial reduction in the use of those ports by 
foreign longline vessels that have shark fins on board without 
corresponding carcasses. It is estimated that this port activity 
generates between $40 and $60 million per year in sales by Hawaiian 
businesses.
    NMFS considered a second alternative that would have prohibited the 
possession of shark fins without corresponding carcasses by all foreign 
fishing vessels whenever they are in the U.S. EEZ, even if not engaged 
in fishing. This could have forced some vessels fishing throughout the 
Pacific to adjust their navigation routes at high expense. It would 
have also constituted an infringement on the right of freedom of 
navigation under customary international law. This construction appears 
to go beyond the intent of the Act.
    A third alternative would have extended the landing prohibition to 
all vessels, including non-fishing cargo vessels, whether or not such 
vessels are operating in support of fishing activity. Under this 
alternative, there would have been greater impacts on shippers, 
retailers, and consumers. U.S. Customs Service data indicate that 
documented imports and exports of shark fins into and out of the U.S. 
were valued at $3 million and $5 million, respectively, in 1999. Under 
this alternative, these shipments would likely be eliminated and shark 
fins could only enter the U.S. via air or land freight.
    NMFS also considered a fourth alternative that would not have 
promulgated these regulations but would have used fishery management 
plans prepared by councils (and by the Secretary with respect to 
Atlantic Ocean, Gulf of Mexico, and Caribbean shark fishery management) 
under the Magnuson-Stevens Act to implement the Act. However, actions 
by the Councils would require an extended amount of time that would not 
meet the statutory time constraints of the Act.

Comments and Responses

    A summary of the substantive comments on the proposed rule and 
responses to those comments follow.

Application of the Act in State Waters

    Comment 1: Several commenters indicated that not applying the 
prohibitions of the Act in state waters is inconsistent with the Act 
and should not be incorporated in the final rule. Finning is a national 
concern, and the failure of states and councils to prohibit finning is 
what led to the need for the Act. The term ``at sea'' was meant broadly 
by Congress and Congress could have specifically excluded state waters 
if that was the intent. Therefore, the prohibitions should be applied 
in state waters, or at least in state waters where there are no state 
regulations prohibiting finning. It was suggested that non-application 
in state waters would result in unnecessary enforcement difficulties. 
One state had no objection to application of the regulations in state 
waters as long as states could adopt more stringent regulations. 
Another state agreed with NMFS' proposed approach under which the 
regulations would not apply in state waters.
    Response: The language and legislative history of the Act indicate 
that the regulations should not apply in state waters. The prohibitions 
contained in the Act were enacted as an amendment to the Magnuson-
Stevens Act. The Magnuson-Stevens Act grants authority to the Secretary 
and the eight fishery management councils to regulate fisheries in 
ocean areas seaward of state waters, while providing that such 
authority shall not be construed as extending or diminishing the 
jurisdiction or authority of any State within its boundaries (16 U.S.C. 
1856(a)). Neither the language nor the legislative history of the Act 
reveals an intent by Congress to extend Federal fishery management 
authority to regulate state shark fisheries, or the finning of sharks 
taken in such state fisheries. Hence, NMFS understands the prohibitions 
contained in the Act to apply to the finning, possession, and landing 
of sharks harvested seaward of state waters. The comprehensive 
prohibition of shark finning would require either corresponding state 
regulation or a specific exception to the Magnuson-Stevens Act under 16 
U.S.C. 1856(b) allowing for Federal regulation of sharks harvested 
within the boundaries of a state. While most states already have 
prohibitions on shark finning in state waters, NMFS intends to work 
with regional fishery management councils, interstate marine fisheries 
commissions, and states to promote consistency in management throughout 
state and Federal waters.

Application of the Regulations to Foreign Vessels

    Comment 2: The Act does not provide authority to prohibit foreign 
vessels from possessing shark fins from sharks caught on the high seas. 
The Act (as an amendment of the Magnuson-Stevens Act) is limited to 
regulating the possession or offloading of fish harvested in the U.S. 
EEZ. The only reasonable interpretation of the Act, therefore, is that 
the new law does not regulate shark fins caught by foreign vessels on 
the high seas. The Act does not authorize prohibiting shark finning by 
foreign fishing vessels on the high seas and therefore, the Act cannot 
prohibit the landing of shark fins without the corresponding carcasses 
if they were taken on the high seas.
    Response: Foreign vessels, when they are engaged in fishing or 
fishing related activities in the U.S. EEZ, in state waters, or in U.S. 
ports, are subject to U.S. jurisdiction under customary international 
law. These vessels are subject to the Magnuson-Stevens Act, the 
Nicholson Act and other applicable law with respect to any fishing 
activity (defined in the Magnuson-Stevens Act to include any operations 
in support of the catching, taking or harvesting of fish) within the 
U.S. EEZ, or activities, including landing of fish or fish parts, 
conducted in U.S. ports in the 50 states and the U.S. Virgin Islands 
for vessels greater than 50 feet in length, as regulated by the 
Nicholson Act (see 46 U.S.C. Appx. sec. 251). Accordingly, the Act 
requires NMFS to prohibit both finning (as a fishing activity) and 
landing of shark fins without the corresponding carcasses by foreign 
vessels, when these activities occur in U.S. waters or U.S. ports. 
However, the Act does not confer jurisdiction to prohibit shark finning 
by foreign vessels on the high seas. Absent specific evidence to the 
contrary, NMFS must presume that any shark fins in the possession of a 
foreign vessel passing through the U.S. EEZ were harvested either on 
the high seas or in a foreign jurisdiction. The possession of such 
shark fins by foreign vessels in U.S. waters does not, of itself, 
constitute fishing or other activity subject to U.S. regulatory 
jurisdiction. Therefore, NMFS interprets the Act as not imposing the 
prohibition regarding possession of shark fins without corresponding 
carcasses against foreign vessels, except when those vessels are 
offloading shark fins in a U.S. port.
    Comment 3: Sections 600.1022(b) and 600.1023(f) should be revised 
to clearly be limited to U.S. fishing vessels.
    Response: Section 600.1022(b) has been revised to clearly indicate 
that the 5 percent threshold of the rebuttable presumption as it 
applies to possession of shark on board a vessel is applicable only to 
U.S. vessels, while the 5 percent threshold of the rebuttable 
presumption as it applies to landings is applicable to all vessels 
landing shark fins in a U.S. port or transshipping shark fins in waters 
under U.S. jurisdiction. No change was made in Sec. 600.1023(f) (see 
response to comment 5).
    Comment 4: There should be a clearer statement that foreign fishing 
vessels

[[Page 6197]]

that call at U.S. ports are exempt from application of the possession 
prohibition. There should not be any restriction on foreign vessels' 
freedom to transit the U.S. EEZ or enter a port in Hawaii based on 
possession of shark fins without corresponding carcasses on board the 
vessel. Section 600.1023(b) does not address the right of a foreign 
vessel to have possession of shark fins without carcasses in ports 
under U.S. jurisdiction. This would allow a state to prohibit such 
possession, and Sec. 600.1020 further suggests this possibility. 
Prohibiting foreign vessels from possessing shark fins in U.S. ports 
could have serious adverse consequences on the economy of some ports 
because it would make it very difficult for Japanese fishing vessels to 
visit such ports.
    Response: This final rule prohibits persons aboard U.S. or foreign 
fishing vessels from landing shark fins without corresponding 
carcasses. This final rule does not prohibit foreign vessels that 
possess shark fins without corresponding carcasses from transiting the 
U.S. EEZ or state waters, or from entering a U.S. port.
    Comment 5: Foreign fishing vessels should be exempt from inspection 
under Sec. 600.1023(f).
    Response: Under customary international law, foreign vessels in 
U.S. ports are subject to inspection in accordance with the 
jurisdiction of port states to enforce their laws. Consequently, a 
foreign fishing vessel may be inspected when in a U.S. port.

States' Authority Over Foreign Vessels in U.S. Ports

    Comment 6: Two commenters indicated that, as written, the proposed 
application of the prohibitions to foreign fishing vessels would occur 
even in state waters, while domestic vessels would not be subject to 
prohibitions in state waters. This distinction is troubling, especially 
in the context of trade disputes concerning environmental laws. At the 
least, NMFS should explain the basis for applying the Act differently 
for foreign and domestic fishing vessels.
    Response: The comment refers to language in the preamble to the 
proposed rule that discusses the likely effects of the proposed 
prohibitions on persons aboard U.S. fishing vessels and foreign fishing 
vessels, respectively. The language in question discusses the effect of 
the proposed landing prohibition on persons aboard foreign fishing 
vessels that would be prohibited from landing shark fins without 
corresponding carcasses ``in or inside'' the U.S. EEZ. However, the 
landing prohibition under the final rule applies equally to foreign and 
domestic fishing vessels. Nor is there any disparate treatment of 
foreign vessels with respect to the prohibition against shark finning 
in waters seaward of the inner boundary of the U.S. EEZ.
    Comment 7: If retained, Sec. 600.1020 should be revised to limit 
states to regulating the taking of sharks in state waters and the rules 
should expressly authorize foreign vessels to possess shark fins 
without corresponding carcasses in U.S. ports.
    Response: As discussed previously, the Act does not provide NMFS 
with authority or jurisdiction over state waters. Persons conducting 
activities regulated by this final rule must abide by any more 
restrictive state regulations as applied to sharks harvested in state 
waters or landed in a state. Foreign fishing vessels, while subject to 
the landing prohibition, may possess shark fins without corresponding 
carcasses as they transit the U.S. EEZ and state waters, and when they 
are in U.S. ports. Since such possession of shark fins by foreign 
vessels is not prohibited, no express authorization is required.

Application of the Rules in a Foreign Trade Zone

    Comment 8: One commenter asked if the prohibitions against landing 
fins without carcasses by foreign fishing vessels would apply in the 
foreign trade zone in Hawaii; another commenter recommended that the 
landings prohibition be applied to foreign fishing vessels in a foreign 
trade zone.
    Response: The final rule clarifies that foreign fishing vessels are 
prohibited from landing fins without corresponding carcasses in a 
foreign trade zone, whether in Hawaii or elsewhere. The Foreign Trade 
Zone Act, which establishes foreign trade zones, exempts imports from 
U.S. customs duties. The Free Trade Zone Act does not exempt fishing 
activity, including landing of shark fins, by persons or entities under 
U.S. jurisdiction.

Definition and Application of Terms

    Comment 9: The terms, ``dressed weight,'' ``wet fins,'' and 
``corresponding carcass'' should be defined. The use of wet weight is 
supported but it was noted that there are species differences in the 
ratio of fin weight to carcass weight. NMFS should consider requiring 
that fins be packed in ice to prevent drying. A definition of ``wet'' 
was suggested.
    Response: The term ``Corresponding Carcass'' is self explanatory, 
and the term ``dressed weight'' is defined for the Atlantic at 50 CFR 
part 635. NMFS has retained the use of wet weight in the final rule and 
will use dressed weight in the application of the rebuttable 
presumption at Sec. 600.1022(b). Therefore, no changes are made in this 
final rule. NMFS notes that enforcement and prosecution of violations 
will not be contingent solely on the use of the rebuttable presumption. 
NOAA will consider all evidence available in each instance, including 
the number and weight of fins, the number and weight of shark 
carcasses, the condition of the carcasses (e.g., dressed or not 
dressed), and the amount or weight of other shark products when 
determining whether a violation likely occurred and whether to 
prosecute. More specific definitions of the terms as proposed will not 
necessarily increase NMFS' ability to enforce the regulations in a 
reasonable manner or help the public comply with the regulations. As 
recommended by the commenter, NMFS considered whether to require 
special packing of fins or keeping fins attached or specially 
identified with specific carcasses as a way of enforcing the finning 
definitions. Based on experience in the Atlantic, NMFS concluded that 
it has not been demonstrated that such restrictions are necessary or 
appropriate at this time. As more experience is gained in implementing 
the regulations in the Pacific, NMFS will consider the need for 
additional measures or new definitions to ensure that the Act is 
carried out effectively.

International Cooperation

    Comment 10: The Act is unscientific and irrational, and efforts to 
enforce the Act may be counterproductive. The Act disregards 
established international rules concerning conservation and management 
of marine resources. Management must be based on objective and 
justifiable grounds, and an across-the-board prohibition on finning 
lacks objective and reasonable grounds. The Act will dampen Food and 
Agricultural Organization (FAO) efforts to conserve and manage sharks, 
which the U.S. has agreed is necessary under the International Plan of 
Action for Shark Conservation (IPOA) and the U.S. National Plan of 
Action (NPOA). Shark finning controls should not be taken up in 
isolation but should be part of a complete management strategy.
    Response: The Act is U.S. law, reflecting the intent of Congress, 
and expressly provides that its terms must be implemented by domestic 
rulemaking. In enacting this law, Congress emphasized the need for 
international cooperation to conserve and manage sharks and their 
utilization in a reasonable and effective manner. In fact, the Act is 
fully consistent with the

[[Page 6198]]

objectives in paragraph 22 of the IPOA, namely encouraging the full use 
of dead sharks and minimizing the waste and discards from shark 
catches.
    Comment 11: The Secretary should move forward with implementation 
of the international provisions of the Act.
    Response: The Secretary is working with the Department of State to 
develop a strategy for complying with the international provisions of 
the Act.

Atlantic Fishery Regulations

    Comment 12: Section 635.30(c)(1) should be revised to apply only to 
shark fins harvested by a vessel pursuant to a commercial vessel permit 
for sharks. This would make clear that this section would not apply to 
foreign fishing vessels transiting the EEZ or entering a U.S. port.
    Response: Section 635.30(c)(1) has been clarified to apply only to 
shark fins harvested by fishermen that hold a Federal Atlantic 
commercial shark limited access permit.

Consideration and Evaluation of Alternatives and Negative Impacts

    Comment 13: There is insufficient evaluation of possible effects of 
the measures; there should be a full evaluation along with 
consultations with FAO, other international organizations, and other 
nations.
    Response: Both an EA and a combined RIR and initial regulatory 
flexibility analysis were prepared for the proposed rule, and a range 
of alternatives and their impacts have been considered. The proposed 
rule published for this action was widely available to, and open to 
comment by, U.S. interests, foreign nations, and international 
organizations. NMFS considered the comments it received on the proposed 
rule in drafting this final rule and its associated analytical 
documents.
    This final rule affects foreign vessels' activities only while they 
are under U.S. jurisdiction and does not purport to control their 
activities on the high seas or in other nations' waters. Therefore, 
NMFS does not believe that consultations with other nations or 
international organizations on this action are necessary. However, in 
coordination with the Department of State, NMFS will continue to work 
with other nations to develop and implement international agreements 
for the conservation and management of sharks.
    Comment 14: A legislative ban on shark finning could seriously 
impact port calls by foreign vessels and result in job and revenue loss 
in Hawaii. There will be a negative impact on people in small 
communities including Guam and American Samoa.
    Response: Based on the RIR/FRFA for this final rule, NMFS does not 
believe that the ban on shark finning will result in significant job or 
revenue loss in Hawaii. Foreign fishing vessels do not land shark fins 
in Hawaii at this time. Further, this final rule does not prohibit 
foreign vessels from making port calls even if they have shark fins on 
board without corresponding carcasses. Therefore, this final rule is 
not expected to result in a reduction of port calls or associated 
adverse impacts on jobs and revenue in Hawaii. NMFS recognizes, as 
discussed above and in the supporting documents, that there may be 
adverse impacts in Guam and American Samoa. However, NMFS is obligated 
to promulgate regulations to implement the Act and has attempted to 
structure the regulations to have the least possible social and 
economic impacts on communities in American Samoa and Guam.
    Comment 15: Pelagic shark populations are stable (especially blue 
sharks) and prohibition of finning is not necessary for conservation.
    Response: Not enough research has been done and too few stock 
assessments have been prepared to demonstrate that pelagic shark 
populations are stable. In fact, the absence of good information on 
shark abundance was one of the principal concerns behind the FAO IPOA. 
This final rule should help reduce uncontrolled and unmonitored shark 
fishing mortality.
    Comment 16: Prohibiting finning will lead to less data for stock 
monitoring and management because fishermen will not cooperate in 
collecting data under a regulation which does not have a scientific 
base.
    Response: The regulations are not expected to result in a decrease 
in data needed for shark stock assessments or conservation and 
management. NMFS is working with regional fishery management councils, 
interstate marine fisheries commissions, and states to address data 
needs for these purposes. In addition, NMFS is working with the 
Department of State to develop and implement an international strategy 
for shark conservation.
    Comment 17: An option before the U.S. could be to abolish the Act 
or adopt the status quo.
    Response: NMFS cannot abolish the Act. NMFS is obligated to 
promulgate regulations to carry out the Act unless the Congress directs 
NMFS to do otherwise.

Reporting Requirements

    Comment 18: NMFS should change logbooks to require additional catch 
and effort information by species; it is not clear how NMFS can enforce 
the regulations (especially the 5 percent weight ratio) without 
additional data reporting. The absence of data reporting requirements 
contradicts section 7 of the Act, which mandates a number of data 
collection and research priorities.
    Response: NMFS has considered the need for data collection or 
reporting requirements and believes that it is premature to conclude 
that new requirements are necessary. Existing Federal fishery 
management plan and state reporting requirements generate much of the 
fishery information needed for shark conservation and management. 
Improvements in these reporting systems are expected as NMFS gains 
experience under these and other regulations. NMFS notes that a special 
effort to review reporting requirements will be undertaken in the 
Pacific. The EA for this action includes a comparison of current 
Atlantic and Pacific reporting requirements.

Other Comments

    Comment 19: Two commenters objected to the statement that shark 
finning is a wasteful act that goes against sportsmanship when no clear 
definition of wastefulness is given; stated that finning makes 
effective use of unnecessary incidental catch; and indicated that there 
is no reason to prohibit finning if the species involved is healthy. 
Finning is neither wasteful nor unsportsmanlike. Retaining only the 
fins, especially of species whose meat is unpalatable, does not 
inherently make the practice wasteful. There are many cases in which 
only parts of fish are used.
    Response: As stated in the Act, the United States has decided, 
through Congress, that shark finning is wasteful and should not be 
permitted by persons or vessels subject to U.S. jurisdiction. However, 
NMFS recognizes that other nations may feel differently and together 
with the Department of State, will work with other nations on 
developing and implementing international agreements that meet mutually 
acceptable objectives.
    Comment 20: Notwithstanding that unilateral action on shark finning 
is a terrible precedent, it is recognized that NMFS needs to comply 
with the legislation and NMFS has made a good effort to implement it in 
a practical and reasonable manner, especially with respect to allowing 
foreign fishing vessels to possess fins without carcasses

[[Page 6199]]

while transiting and allowing cargo vessels to carry out regular 
shipping activities.
    Response: NMFS is implementing the Act in a manner that minimizes 
adverse economic impacts while meeting the objectives of the Act.
    Comment 21: The regulations should be implemented as quickly as 
possible and the 30-day ``cooling off'' period should be waived. NMFS 
should strictly enforce the prohibitions and should develop measures to 
combat illegal landings and transfer of illegally taken fins and to 
prevent ``highgrading.'' Fins should have to either remain on the 
carcass or somehow be identifiable with the carcass (this will help in 
species identification as well). The fisherman should have the burden 
of proof to show that fins on board or landed relate to carcasses in 
the proper ratio.
    Response: There is no legal basis available with respect to this 
rule to waive the 30-day delay in effectiveness required by the 
Administrative Procedure Act. NMFS intends to enforce the regulations. 
In prosecuting enforcement actions, NMFS carries the burden of proving 
violations of this rule. In proving violations of the prohibitions 
against possession or landing shark fins without the corresponding 
shark carcasses, this burden may be satisfied as a threshold matter 
using a rebuttable presumption based on evidence that the total weight 
of the fins exceeds 5 percent of the dressed weight of the carcasses. 
The person conducting the alleged illegal activity can rebut that 
presumption by providing evidence that the fins were not taken, held or 
landed in violation of these regulations.
    Comment 22: All recreationally and commercially caught sharks that 
are endangered, protected, undersized or not a desirable species to 
market or eat should be properly handled and released alive, in the 
water.
    Response: While NMFS agrees that every effort should be made to 
release unwanted sharks alive, the Act did not address the manner in 
which sharks should be handled or released. This is a matter to be 
evaluated through the fishery management process.
    Changes From the Proposed Rule
    The following changes have been made from the proposed rule:
    Section 600.1019, has been clarified to better define shark 
finning.
    In Sec. 600.1022, paragraph (b) has been revised to indicate that 
the 5-percent possession limit of fins to shark carcasses applies only 
to U.S. vessels. (See also the response to Comment 3.)
    In Sec. 600.1023, paragraph (i) has been revised and new paragraphs 
(j) and (k) added to clarify prohibited acts for vessels with a Federal 
Atlantic commercial shark limited access permit.
    In Sec. 635.30, paragraph (c)(1) has been revised to clarify that 
it applies only to shark fins harvested by fishermen that hold Federal 
Atlantic commercial shark limited access permits. (See also the 
response to Comment 12.)
    In Sec. 635.30, paragraphs (c)(1) and (c)(3) have been clarified to 
show that all carcasses and fins must be landed at the first point of 
landing.
    There have been additional editorial changes made from the proposed 
rule to correct references and for clarity and consistency.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. It will not have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or state, local or 
tribal governments or communities. NMFS has also determined that this 
final rule will not create serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients thereof; or raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    NMFS prepared an FRFA that describes the impact this final rule is 
expected to have on small entities. A copy of this analysis is 
available from NMFS (see ADDRESSES). A summary of the analysis follows.
    The need for and objectives of this rule are described in the 
Summary and Background sections of this preamble.
    The principal affected entities are: (a) Western Pacific U.S. 
longline and purse seine fishing vessel operators and crew, and the 
businesses that buy and resell shark fins (without corresponding 
carcasses) from these vessels; (b) businesses that buy and export shark 
fins from crews of foreign longline vessels delivering those fins in 
western Pacific ports; and (c) businesses that sell goods and services 
to foreign vessel crew members who receive the revenue from the sale of 
shark fins in U.S. ports. The western Pacific is the region mainly 
impacted because this is the only region where shark finning by U.S. 
interests and delivery of fins by foreign vessels have not previously 
been regulated under Federal or state law. The principal effects of 
this action are to terminate finning by U.S. fishing vessels in the 
western Pacific, and to terminate landings of shark fins without 
corresponding carcasses into U.S. ports by U.S. and foreign fishing 
vessels in the western Pacific. Persons and businesses in that area may 
be seriously affected by the elimination of their principal source of 
shark fins.
    NMFS does not know how dominant a role shark fin trade plays in the 
economic activity of the affected businesses. It is estimated that 
there are four to six active trading businesses in American Samoa and 
Guam. If trade in shark fins is their only trade, these businesses may 
be forced to cease activity and/or find alternate lines of trade. They 
may also seek ways to find more valuable uses of sharks (e.g., shark 
meat, cartilage, skins) such that more carcasses would be retained with 
the fins and greater values could be derived from the shark catches in 
the longline fishery. However, any such transition is likely to take 
some time and the businesses would suffer losses until that time. Based 
on studies of shark fin landings and crew income, it is estimated that 
the loss could be between $422,000-653,000 annually. It is acknowledged 
that there could be reductions in the availability of shark fins for 
soup and other products in the U.S. under this final rule. However, the 
supply impacts will be moderated if suppliers are able to use other 
means to ship shark fins into the United States.
    NMFS considered four alternatives to this action other than the 
status quo or no action. These alternatives are discussed in the 
Alternative Construction of the Statute section of this preamble, which 
explains why these alternatives were not adopted. While NMFS received 
no comments regarding the IRFA, NMFS' response to comments 4, 8, 13, 
and 14 address economic aspects of this final rule.
    This rule applies only to vessels harvesting sharks seaward of the 
inner boundary of the U.S. EEZ, and to federally permitted vessels in 
the Atlantic shark and spiny dogfish fisheries, and therefore, it does 
not conflict with any state laws governing fishing activities in state 
waters. NMFS does not intend by this regulation to supercede any state 
law or regulation with respect to shark finning and landing or 
possession of shark fins by state registered vessels, even with respect 
to more restrictive state laws or regulations pertaining to such 
activities occurring seaward of the state's boundary. NMFS intends to 
work with those states that do not already prohibit the landing of 
shark fins without the corresponding shark carcasses to enact

[[Page 6200]]

appropriate laws and to issue appropriate regulations so that the 
objectives of the Act are fully achieved.
    NMFS completed an informal consultation on September 6, 2001, with 
regard to the effects of this proposed rule on endangered and 
threatened species under NMFS' jurisdiction. It was found that the 
action is not likely to adversely affect listed species under NMFS' 
jurisdiction.

List of Subjects

50 CFR Part 600

    Fisheries, Fishing.

50 CFR Part 635

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

50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: February 1, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR parts 600, 635, 648 
and 660 are amended as follows:
    1. The authority citation for parts 600, 635, 648, and 660 
continues to read as follows:

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

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    2. Subpart M is added to read as follows:

Subpart M--Shark Finning

sec.
600.1019   Purpose and scope.
600.1020  Relation to other laws.
600.1021   Definitions.
600.1022  Prohibitions.
600.1023   Shark finning; possession at sea and landing of shark 
fins.

Subpart M--Shark Finning


Sec. 600.1019  Purpose and scope.

    The regulations in this subpart govern ``shark finning'' (the 
removal of shark fins and discarding of the carcass), the possession of 
shark fins, and the landing into U.S. ports of shark fins without 
corresponding carcasses under the authority of the Magnuson-Stevens 
Act. They implement the Shark Finning Prohibition Act of 2000.


Sec. 600.1020  Relation to other laws.

    (a) The relation of this subpart to other laws is set forth in 
Sec. Sec. 600.514 and 600.705 and in paragraphs (b) and (c) of this 
section.
    (b) Regulations pertaining to shark conservation and management for 
certain shark fisheries are also set forth in this subpart and in parts 
635 (for Federal Atlantic Ocean, Gulf of Mexico, and Caribbean shark 
fisheries), 648 (for spiny dogfish fisheries), and 660 (for fisheries 
off West Coast states and in the western Pacific) of this chapter 
governing those fisheries.
    (c) Nothing in this regulation supercedes more restrictive state 
laws or regulations regarding shark finning in state waters.
    (d) A person who owns or operates a vessel that has been issued an 
Atlantic Federal commercial shark limited access permit or a spiny 
dogfish permit is subject to the reporting and recordkeeping 
requirements found at parts 635 and 648 of this chapter, respectively.


Sec. 600.1021  Definitions.

    (a) In addition to the definitions in the Magnuson-Stevens Act and 
in Sec. 600.10, the terms used in this subpart have the following 
meanings:
    Land or landing means offloading fish, or causing fish to be 
offloaded, from a fishing vessel, either to another vessel or to a 
shoreside location or facility, or arriving in port, or at a dock, 
berth, beach, seawall, or ramp to begin offloading fish.
    Shark finning means taking a shark, removing a fin or fins (whether 
or not including the tail), and returning the remainder of the shark to 
the sea.
    (b) If there is any difference between a definition in this section 
and in Sec. 600.10, the definition in this section is the operative 
definition for the purposes of this subpart.


Sec. 600.1022  Prohibitions.

    (a) In addition to the prohibitions in Sec. Sec. 600.505 and 
600.725, it is unlawful for any person to do, or attempt to do, any of 
the following:
    (1) Engage in shark finning, as provided in Sec. 600.1023(a) and 
(i).
    (2) Possess shark fins without the corresponding carcasses while on 
board a U.S. fishing vessel, as provided in Sec. 600.1023(b) and (j).
    (3) Land shark fins without the corresponding carcasses, as 
provided in Sec. 600.1023(c) and (k).
    (4) Fail to have all shark fins and carcasses from a U.S. or 
foreign fishing vessel landed at one time and weighed at the time of 
the landing, as provided in Sec. 600.1023(d).
    (5) Possess, purchase, offer to sell, or sell shark fins taken, 
landed, or possessed in violation of this section, as provided in 
Sec. 600.1023(e) and (l).
    (6) When requested, fail to allow an authorized officer or any 
employee of NMFS designated by a Regional Administrator access to and/
or inspection or copying of any records pertaining to the landing, 
sale, purchase, or other disposition of shark fins and/or shark 
carcasses, as provided in Sec. 600.1023(f).
    (7) Fail to have shark fins and carcasses recorded as specified in 
Sec. 635.30(c)(3) of this chapter.
    (8) Fail to have all shark carcasses and fins landed and weighed at 
the same time if landed in an Atlantic coastal port, and to have all 
weights recorded on the weighout slips specified in Sec. 635.5(a)(2) of 
this chapter.
    (9) Fail to maintain a shark intact through landing as specified in 
Sec. Sec. 600.1023(h) and 635.30(c)(4) of this chapter.
    (b)(1) For purposes of this section, it is a rebuttable presumption 
that shark fins landed by a U.S. or foreign fishing vessel were taken, 
held, or landed in violation of this section if the total weight of the 
shark fins landed exceeds 5 percent of the total dressed weight of 
shark carcasses on board or landed from the fishing vessel.
    (2) For purposes of this section, it is a rebuttable presumption 
that shark fins possessed by a U.S. fishing vessel were taken and held 
in violation of this section if the total weight of the shark fins on 
board, or landed, exceeds 5 percent of the total dressed weight of 
shark carcasses on board or landed from the fishing vessel.


Sec. 600.1023  Shark finning; possession at sea and landing of shark 
fins.

    (a)(1) No person aboard a U.S. fishing vessel shall engage in shark 
finning in waters seaward of the inner boundary of the U.S. EEZ.
    (2) No person aboard a foreign fishing vessel shall engage in shark 
finning in waters shoreward of the outer boundary of the U.S. EEZ.
    (b) No person aboard a U.S. fishing vessel shall possess on board 
shark fins harvested seaward of the inner boundary of the U.S. EEZ 
without the corresponding carcass(es), as may be determined by the 
weight of the shark fins in accordance with Sec. 600.1022(b)(2), except 
that sharks may be dressed at sea.

[[Page 6201]]

    (c) No person aboard a U.S. or foreign fishing vessel (including 
any cargo vessel that received shark fins from a fishing vessel at sea) 
shall land shark fins harvested in waters seaward of the inner boundary 
of the U.S. EEZ without corresponding shark carcasses, as may be 
determined by the weight of the shark fins in accordance with 
Sec. 600.1022(b)(1).
    (d) Except as provided in paragraphs (g) and (h) of this section, a 
person who operates a U.S. or foreign fishing vessel and who lands 
shark fins harvested in waters seaward of the inner boundary of the 
U.S. EEZ shall land all fins and corresponding carcasses from the 
vessel at the same point of landing and shall have all fins and 
carcasses weighed at that time.
    (e) A person may not purchase, offer to sell, or sell shark fins 
taken, landed, or possessed in violation of this section.
    (f) Upon request, a person who owns or operates a vessel or a 
dealer shall allow an authorized officer or any employee of NMFS 
designated by a Regional Administrator access to, and/or inspection or 
copying of, any records pertaining to the landing, sale, purchase, or 
other disposition of shark fins and/or shark carcasses.
    (g) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark limited access permit and who lands 
shark in an Atlantic coastal port must have all fins weighed in 
conjunction with the weighing of the carcasses at the vessel's first 
point of landing. Such weights must be recorded on the ``weighout 
slips'' specified in Sec. 635.5(a)(2) of this chapter.
    (h) A person who owns or operates a vessel that has not been issued 
a Federal Atlantic commercial shark limited access permit and who lands 
shark in or from the U.S. EEZ in an Atlantic coastal port must comply 
with regulations found at Sec. 635.30(c)(4) of this chapter.
    (i) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark limited access permit shall engage in shark 
finning.
    (j) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark limited access permit shall possess on board 
shark fins without the corresponding carcass(es), as may be determined 
by the weight of the shark fins in accordance with Sec. 600.1022(b)(2), 
except that sharks may be dressed at sea.
    (k) No person aboard a vessel that has been issued a Federal 
Atlantic commercial shark limited access permit shall land shark fins 
without the corresponding carcass(es).
    (l) A dealer may not purchase from an owner or operator of a 
fishing vessel issued a Federal Atlantic commercial shark limited 
access permit who lands shark in an Atlantic coastal port fins whose 
wet weight exceeds 5 percent of the dressed weight of the carcasses.

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    3. In Sec. 635.30, paragraphs (c)(1) through (c)(3) are revised to 
read as follows:


Sec. 635.30  Possession at sea and landing.

* * * * *
    (c) Shark. (1) Not withstanding the regulations issued at part 600 
(subpart M) of this chapter, no person who owns or operates a vessel 
issued a Federal Atlantic commercial shark limited access permit shall 
possess or offload wet shark fins in a quantity that exceeds 5 percent 
of the dressed weight of the shark carcasses. No person shall possess a 
shark fin on board a fishing vessel after the vessel's first point of 
landing. While shark fins are on board and when shark fins are being 
offloaded, persons issued a Federal Atlantic commercial shark limited 
access permit are subject to the regulations at part 600, subpart M, of 
this chapter.
    (2) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark limited access permit may not fillet 
a shark at sea. A person may eviscerate and remove the head and fins, 
but must retain the fins with the dressed carcasses. While on board and 
when offloaded, wet shark fins may not exceed 5 percent of the dressed 
weight of the carcasses, in accordance with the regulations at part 
600, subpart M, of this chapter.
    (3) A person who owns or operates a vessel that has been issued a 
Federal Atlantic commercial shark limited access permit and who lands 
shark in an Atlantic coastal port must have all fins and carcasses 
weighed and recorded on the weighout slips specified in 
Sec. 635.5(a)(2) and in accordance with regulations at part 600, 
subpart M, of this chapter. Persons may not possess a shark fin on 
board a fishing vessel after the vessel's first point of landing. The 
wet fins may not exceed 5 percent of the dressed weight of the 
carcasses.
* * * * *

    4. In Sec. 635.31, paragraphs (c)(3) and (c)(5) are revised to read 
as follows:


Sec. 635.31   Restrictions on sale and purchase.

* * * * *
    (c) * * *
    (3) Regulations governing the harvest, possession, landing, 
purchase, and sale of shark fins are found at part 600, subpart M, of 
this chapter and in Sec. 635.30(c).
* * * * *
    (5) A dealer issued a permit under this part may not purchase from 
an owner or operator of a fishing vessel shark fins that were not 
harvested in accordance with the regulations found at part 600, subpart 
M, of this chapter and in Sec. 635.30(c).
* * * * *

    5. In Sec. 635.71, paragraphs (d)(6) and (d)(7) are revised to read 
as follows:


Sec. 635.71  Prohibitions.

* * * * *
    (d) * * *
    (6) Fail to maintain a shark in its proper form, as specified in 
Sec. 635.30(c)(4).
    (7) Sell or purchase shark fins that are disproportionate to the 
weight of shark carcasses, as specified in Sec. 635.30(c)(2) and (c)(3) 
and Sec. 600.1023 (e) and (l) of this chapter.
* * * * *

PART 648--FISHERIES OF THE NORTHEAST ATLANTIC OCEAN

    6. In Sec. 648.14, paragraph (aa)(4) is revised and paragraphs 
(aa)(5) and (6) are removed and reserved as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (aa) * * *
    (4) Violate any of the provisions prohibiting finning in 
Sec. Sec. 600.1022 and 600.1023 that are applicable to the dogfish 
fishery.
* * * * *

    7. In Sec. 648.235, paragraph (c) is added as follows:


Sec. 648.235  Possession and landing restrictions.

* * * * *
    (c) Regulations governing the harvest, possession, landing, 
purchase, and sale of shark fins are found at part 600, subpart M, of 
this chapter.
* * * * *

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    8. In Sec. 660.1, paragraph (c) is added as follows:


Sec. 660.1  Purpose and scope.

* * * * *
    (c) Regulations governing the harvest, possession, landing, 
purchase, and sale

[[Page 6202]]

of shark fins are found at part 600, subpart M, of this chapter.
[FR Doc. 02-3113 Filed 2-8-02; 8:45 am]
BILLING CODE 3510-22-S