[Federal Register Volume 67, Number 249 (Friday, December 27, 2002)]
[Rules and Regulations]
[Pages 78990-78993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32617]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635----

[Docket No. 021219321-2321-01; I.D. 120902A]
RIN 0648-AQ39


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.

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SUMMARY: NMFS issues an emergency rule to: establish the commercial 
annual quotas for ridgeback and non-ridgeback large coastal sharks 
(LCS) at 783 metric tons (mt) dressed weight (dw) and 931 mt dw, 
respectively; establish the commercial annual quota for small coastal 
sharks (SCS) at 326 mt dw; and suspend the regulation regarding the 
commercial ridgeback LCS minimum size. These regulations are necessary 
to ensure that the regulations in force are based on the best available 
science. In addition, as of January 1, 2003, regulations on season-
specific quota adjustments and counting dead discards and state 
landings after a Federal closure against the commercial quotas will go 
into effect. At least one public hearing on this emergency rule will be 
held during the public comment period and will be announced in a 
separate Federal Register document. NMFS also notifies eligible 
participants of the opening and closing dates for the Atlantic LCS, 
SCS, pelagic shark, blue shark, and porbeagle shark fishing seasons.

DATES: This emergency rule is effective as of 12:01 a.m., local time, 
on December 31, 2002, through June 30, 2003.
    The fishery opening for ridgeback LCS is effective January 1, 2003, 
through 11:30 p.m., local time, April 15, 2003. The ridgeback LCS 
closure is effective from 11:30 p.m., local time, April 15, 2003, 
through June 30, 2003.
    The fishery opening for non-ridgeback LCS is effective January 1, 
2003, through 11:30 p.m., local time, May 15, 2003. The non-ridgeback 
LCS closure is effective from 11:30 p.m., local time, May 15, 2003, 
through June 30, 2003.
    The fishery opening for SCS, pelagic sharks, blue sharks, and 
porbeagle sharks is effective January 1, 2003, through June 30, 2003, 
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 February 14, 2003.

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

[[Page 78991]]

may be obtained from Karyl Brewster-Geisz at the same address or may be 
obtained on the web at http://www.nmfs.noaa.gov/sfa/hmspg.html.

FOR FURTHER INFORMATION CONTACT: 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.
    Since 1997, NMFS has been sued numerous times regarding shark 
management measures. These lawsuits have come from a variety of user 
groups including commercial fishermen, recreational fishermen, and 
environmentalists. In December 2000, NMFS settled two lawsuits with 
commercial fishermen. The court-approved settlement agreement included, 
among other things, independent peer-reviews of the 1998 and the new 
2002 LCS stock assessments and a commitment to maintain the LCS and SCS 
quotas at 1997 levels pending the new 2002 assessments. The settlement 
agreement did not address any regulations affecting the pelagic shark, 
prohibited species, or recreational shark fisheries.
    NMFS received the results of the complete peer reviews of the 1998 
LCS stock assessment in October 2001. After reviewing all peer reviews 
of the 1998 LCS stock assessment, NMFS determined that the projections 
of the models used in the 1998 LCS stock assessment no longer 
constituted the best available science. Thus, a number of management 
measures in the 1999 HMS FMP were no longer appropriate. As a result, 
NMFS published an emergency rule on December 28, 2001 (66 FR 67118; 
extended 67 FR 37354, May 29, 2002), that implemented management 
measures based on the best available science at that time: a 
combination of landings, discards, and biological data; catch rates; 
the 1996 LCS stock assessment; and the peer reviews. The December 2001 
emergency rule was designed to maintain the status of LCS and SCS 
pending new stock assessments. In the December 2001 emergency rule, 
NMFS made a commitment to re-evaluate the management measures 
promulgated in that emergency rule based on the new stock assessments 
before any of these measures would be re-implemented. The December 2001 
emergency rule expires on December 30, 2002.
    Since publication of the December 2001 emergency rule, NMFS has 
received several new stock assessments. On May 8, 2002, NMFS announced 
the availability of the first SCS stock assessment since 1992 (67 FR 
30879). The Mote Marine Laboratory and the University of Florida 
provided NMFS with another SCS stock assessment in August 2002. Both 
these stock assessments indicate that overfishing is occurring on 
finetooth sharks. The three other species in the SCS complex (Atlantic 
sharpnose, bonnethead, and blacknose) are not overfished and 
overfishing is not occurring. Because many management measures for 
sharks are interrelated, NMFS commenced SCS rulemaking once the LCS 
assessment was complete.
    On October 17, 2002, NMFS announced the availability of the LCS 
stock assessment (67 FR 64098), which currently constitutes the best 
available science for LCS. The results of this stock assessment 
indicate that the LCS complex is still overfished and overfishing is 
occurring; that sandbar sharks are no longer overfished and that 
overfishing is still occurring; and that blacktip sharks are rebuilt 
and overfishing is not occurring. The peer review process for the 2002 
LCS stock assessment, required under the above-referenced settlement 
agreement, is expected to be complete in mid-December. At the time of 
drafting this emergency rule, the results of the peer reviews were not 
available to all NMFS staff or the public, and therefore, were not 
considered.
    This action is necessary because, once the December 2001 emergency 
rule expires, certain measures from the 1999 HMS FMP, which were based 
on the projections from the 1998 LCS stock assessment, will enter into 
force unless regulations are promulgated to replace them. As noted 
above, NMFS determined that portions of the 1998 LCS stock assessment 
no longer constitute the best available science. Furthermore, NMFS now 
has updated stock assessments for both LCS and SCS, which constitute 
the best available science for these complexes. The results of these 
stock assessments indicate that the status of both LCS and SCS have 
changed since previous stock assessments. New regulations are needed to 
reflect this change in status.
    NMFS has one objective for this rulemaking: to amend management 
measures that are no longer be based on the best available science and/
or that were implemented in the HMS FMP and later suspended or revised 
in the December 2001 shark emergency rule. The management measures 
promulgated in the current rulemaking, along with many other shark 
management measures implemented in the HMS FMP, will be re-evaluated in 
an amendment to the HMS FMP, which NMFS announced it would initiate 
through a Notice of Intent issued on November 15, 2002 (67 FR 69180). 
Shark management measures that are not addressed in this rulemaking 
will be evaluated in the amendment to the HMS FMP. Those management 
measures include, but are not limited to, the recreational retention 
limits and size limit, the prohibited species, the public display 
quota, and the commercial trip limits.
    At the end of the public comment period for this emergency rule, 
NMFS will consider all public comments and the peer reviews of the 2002 
LCS stock assessment and will amend the measures under the emergency 
regulations, as appropriate.

Commercial Management Measures

    This emergency rule (1) establishes the commercial annual quotas 
for ridgeback and non-ridgeback large coastal sharks (LCS) at 783 
metric tons (mt) dressed weight (dw) and 931 mt dw, respectively; (2) 
establishes the commercial annual quota for small coastal sharks (SCS) 
at 326 mt dw; and (3) suspends the regulation regarding the commercial 
ridgeback LCS minimum size. In addition, as of January 1, 2003, the 
regulations on season-specific quota adjustments and counting dead 
discards and state landings after a Federal closure against the 
commercial quotas will go into effect. This emergency rule does not 
affect commercial management measures for pelagic sharks, except for 
counting dead discards or state landings against the quota and seasonal 
quota adjustments, and does not affect the management measures for 
prohibited species or recreational fisheries.
    NMFS considered other alternatives including implementing the HMS 
FMP quotas based on the 1998 stock assessment, implementing higher or 
lower annual LCS quota levels, implementing higher or lower annual SCS 
quota levels, implementing the ridgeback LCS minimum size, not counting 
state landings after a Federal closure and dead discards against 
Federal quotas, and adjusting the semiannual quotas on the subsequent 
semiannual season rather than the same semiannual season the following 
year. Based on the results of the 2002 stock assessments and 
consideration of social and economic impacts on fishermen, NMFS 
concluded that pending an FMP amendment (expected in 2004), the 
management measures implemented in

[[Page 78992]]

this rule would conserve and maintain the shark stocks while having few 
adverse impacts on the fishery or the human environment.
    Upon completion of the independent peer review process for the 2002 
LCS stock assessment and the consideration of comments received during 
the public comment period for this emergency rule, NMFS will take the 
appropriate actions to amend these regulations, if necessary, pending 
an FMP amendment, to ensure the conservation of Atlantic sharks while 
rebuilding shark stocks and maintaining sustainable fisheries in the 
long-term.

Annual Landings Quotas

    The 2003 annual landings quotas for LCS and SCS are established at 
783 mt dw for ridgeback LCS, 931 mt dw for non-ridgeback LCS, and 326 
mt dw for SCS. The 2003 quota levels for pelagic, blue, and porbeagle 
sharks are established at 488 mt dw, 273 mt dw, and 92 mt dw, 
respectively.
    Because the under-harvest of LCS from the first semiannual season 
of 2002 was already taken into consideration when setting the second 
semiannual season of 2002 (66 FR 67118, December 28, 2001), that under-
harvest will not be carried over for the first semiannual season of 
2003. The LCS under-harvest of the second 2002 semiannual season will 
be considered when setting the LCS quota levels for the second 
semiannual season of 2003. As such, the LCS quota for the first 2003 
semiannual season is 391.5 mt dw for ridgeback LCS and 465.5 mt dw for 
non-ridgeback LCS. The SCS first semiannual quota for 2003 is 
established at 163 mt dw. The first 2003 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, 2003, in order to 
determine and announce the second 2003 semiannual quotas for Atlantic 
sharks.

Fishing Season Notification

    The first semiannual fishing season of the 2003 fishing year for 
the commercial fishery for ridgeback and non-ridgeback LCS, SCS, 
pelagic sharks, blue sharks, and porbeagle sharks in the western north 
Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, 
will open January 1, 2003. To estimate the closure dates of the LCS, 
NMFS used the average catch rates for each species group from the first 
seasons from recent years (2000, 2001, and 2002) while also considering 
the reporting dates of permitted shark dealers.
    Based on average ridgeback LCS catch rates in recent years, 
approximately 93 percent of the available ridgeback LCS quota would 
likely be taken by the second week of April. The end of the second week 
of any month 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 
ridgeback LCS quota for the first 2003 semiannual season will likely be 
attained by April 15, 2003. Thus, the ridgeback LCS fishery will close 
April 15, 2003, at 11:30 p.m. local time.
    Based on average non-ridgeback catch rates in recent years, 
approximately 90 percent of the non-ridgeback LCS quota would likely be 
taken by the second week of May and 98 percent by the last week of May. 
Because the LCS shark season has not been open in May since 1996, NMFS 
has difficultly accurately estimating catch rates in May. Because of 
this, in addition to the high probability that the quota could be taken 
in the last week of May and because ridgeback LCS would be discarded 
dead after April 15, NMFS does not believe it is prudent to leave the 
non-ridgeback LCS fishery open until the end of May. Additionally, NMFS 
prefers to have shark closure dates correspond with one of the two 
monthly reporting periods for permitted shark dealers. Accordingly, the 
AA has determined that the non-ridgeback LCS quota should be closed by 
May 15, 2003. Thus, the non-ridgeback LCS fishery will close on May 15, 
2003, 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.

Comment Period

    NMFS is accepting comments regarding this emergency rule through 5 
p.m. on February 14, 2003. At least one public hearing on this 
emergency rule will be held during the public comment period and will 
be announced in a separate Federal Register document. Based on the 
comments received on this rule and on the results of the peer review of 
the 2002 LCS stock assessment, NMFS will modify these regulations, as 
appropriate.

Classification

    These emergency regulations are published under the authority of 
section 305(c) 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 based on the best 
available science.
    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, depending on the results of 
the peer review of the 2002 LCS stock assessment, may be modified to 
ensure the regulations are based on the best available science. The 
quota levels established in this rule are based on the best available 
science at this time - results of the 2002 LCS and SCS stock 
assessments - and should maintain the status of the stock pending an 
FMP amendment and, if needed, implementation of a rebuilding plan.
    NMFS also prepared a Regulatory Impact Review for this action which 
assesses the economic costs and benefits of the action. The 
requirements of this emergency rule establish the annual LCS quota at 
recent landings levels, including landings by fishermen in state 
waters. Thus, the annual LCS quota should not have adverse economic 
impacts on fishermen and may have some economic benefits if the season 
is lengthened slightly compared to the past few years. Similarly, the 
requirements of this emergency rule establish an annual SCS quota at 
the highest SCS landings level and thus, should not have any adverse 
economic impacts on fishermen. The minimum size requirement on 
ridgeback LCS has never gone into place and thus, the suspension of the 
minimum size requirement would not have any economic impacts on 
fishermen. Counting dead discards and state landings after a Federal 
closure could have minor adverse economic impacts if fishermen discard 
a number of sharks or if fishermen fishing in state waters after a 
Federal closure land a large number of sharks. However, NMFS expects 
this requirement to have only minor economic impacts, if any, because 
the suspension of the minimum size requirement minimizes discards until 
after the fishery closed and because a

[[Page 78993]]

number of states now close state waters to shark fishing with Federal 
waters. The season-specific quota adjustment would not have any 
economic impact on the fishery as a whole but could have slight 
economic benefits for fishermen who fish in only one season. The other 
alternatives considered could have greater economic impacts in part or 
in combination with other alternatives.
    This emergency rule to establish the 2003 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.
    The AA finds that it would be impracticable and contrary to the 
public interest to provide prior notice of and an opportunity for 
public comment on this action. The measures in this rule must be in 
place by January 1, 2003, the opening date for the Atlantic shark 
fisheries. Otherwise, certain measures that were based on the 1998 LCS 
stock assessment will go into effect. After reviewing the independent 
peer reviews of the 1998 LCS assessment, NMFS determined that portions 
of the 1998 LCS stock assessment did not constitute the best available 
science. Also, allowing regulations based on the 1998 LCS stock 
assessment to go into effect would be inconsistent with the terms of a 
court-approved settlement agreement, which requires NMFS to maintain 
1997 LCS quota levels pending completion of a new rulemaking based on 
the new LCS stock assessment.
    NMFS now has updated 2002 stock assessments for both LCS and SCS 
that constitute the best available science for these species and 
indicate that the status of both LCS and SCS have changed since the 
previous stock assessments. However, the 2002 LCS stock assessment did 
not become available in time to allow for prior notice and an 
opportunity for public comment on these interrelated LCS and SCS 
measures. Therefore, because any further delay in implementing new 
measures, based on the 2002 LCS and SCS stock assessments, will result 
in regulations based on outdated science going in effect, and a 
violation of the settlement agreement, the AA finds good cause under 5 
U.S.C. 553(b)(B) to waive prior notice and the opportunity for public 
comment.
    For the above reasons and because this action relieves restrictions 
(i.e., increases LCS quotas and suspends a minimum size requirement), 
the AA also finds good cause under 5 U.S.C. 553(d)(3) not to delay for 
30 days the effectiveness of this emergency rule. Additionally, NMFS 
can rapidly communicate these regulations to fishing interests through 
the HMS Fax network, NOAA weather radio, press releases, mailing lists, 
and the HMS infoline.
    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, 5 U.S.C. 601 et seq., do not apply; thus, no 
Regulatory Flexibility Analysis was prepared. Nevertheless, as 
described above, NMFS prepared an economic analysis as part of the 
regulatory impact review for this emergency rule. Based on this 
economic analysis, NMFS does not believe that the requirements of this 
rule would have any adverse economic impacts on fishermen or small 
entities.

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 20, 2002.
William T. Hogarth,
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:

    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) and (b)(1)(ii) are 
suspended, and paragraphs (b)(1)(v) and (b)(1)(vi) are added to read as 
follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (1) * * *
    (v) Large coastal sharks. The annual commercial quota for large 
coastal sharks is 1,714 mt dw, apportioned between ridgeback and non-
ridgeback sharks and divided between two equal semiannual fishing 
seasons, January 1 through June 30, and July 1 through December 31. The 
length of each 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 notification of each 
season's length at least 30 days prior to the beginning of the season. 
The quotas for each semiannual fishing season (unless otherwise 
specified in the Federal Register as provided in paragraph (b)(1)(iv) 
of this section) are as follows:
    (A) Ridgeback shark 391.5 mt dw.
    (B) Non-ridgeback shark 465.5 mt dw.
    (vi) Small coastal sharks. The annual commercial quota for small 
coastal shark is 326 mt dw, (unless otherwise specified in the Federal 
Register as provided in paragraph (b)(1)(iv) of this section) divided 
between two equal semiannual seasons, January 1 through June 30, and 
July 1 through December 31. The quota for each semiannual season is 163 
mt dw.
* * * * *-

    4. In Sec.  635.28, paragraphs (b)(1) and (b)(2) are suspended, and 
paragraphs (b)(4) and (b)(5) are 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.
    (5) When a semiannual quota for small coastal sharks or pelagic 
sharks specified in Sec.  635.27(b)(1)(vi) and (b)(1)(iii) is reached, 
or is projected to be reached, NMFS will file with the Office of the 
Federal Register for publication a notice of closure at least 14 days 
before the effective date. From the effective date and time of the 
closure until additional quota becomes available, the fishery for the 
appropriate shark species group 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. 02-32617 Filed 12-26-02; 8:45 am]
BILLING CODE 3510-22-S