[Federal Register Volume 68, Number 103 (Thursday, May 29, 2003)]
[Rules and Regulations]
[Pages 31983-31988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13420]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 021219321-2321-01; I.D. 120901A]
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; extension of expiration date; request for 
comments; fishing season notification.

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SUMMARY: NMFS extends the expiration date of the emergency rule that 
established 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; established the commercial 
annual quota for small coastal sharks (SCS) at 326 mt dw; and suspended 
the regulation regarding the commercial ridgeback LCS minimum size. 
NMFS clarifies that the provision to count dead discards against the 
commercial quota applies to dead discards by HMS fishermen only. NMFS 
also notifies eligible participants of the opening and closing dates 
for the second semi-annual 2003 Atlantic LCS, SCS, pelagic shark, blue 
shark, and porbeagle shark fishing seasons. This emergency rule 
extension is necessary to ensure that the regulations in force are 
based on the best available science.

DATES: The expiration date of the emergency rule published December 27, 
2002 (67 FR 78990), is extended to December 29, 2003.
    The fishery opening for ridgeback and non-ridgeback LCS is 
effective July 1, 2003, through 11:30 p.m., local time, September 15, 
2003. The ridgeback and non-ridgeback LCS closures are effective from 
11:30 p.m., local time, September 15, 2003, through December 31, 2003. 
The fishery opening for SCS, pelagic sharks, blue sharks, and porbeagle 
sharks is effective July 1, 2003, through December 31, 2003, unless 
otherwise modified or superseded through publication of a closure 
notice in the Federal Register.
    Comments on this action must be received no later than 5 p.m. on 
July 14, 2003.

ADDRESSES: Written comments on this action 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 (EA/RIR) prepared for the initial emergency rule and 
copies of the supplemental EA prepared for this extension 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 or Chris Rilling 
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 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.
    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 but that 
overfishing is 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 December 2000 settlement agreement 
with commercial fishermen, was completed in mid-December, 2002.
    As a result of these stock assessments, NMFS published an emergency 
rule on December 27, 2002 (67 FR 78990), that implemented management 
measures based on the best available science. The December 2002 
emergency rule expires on June 30, 2003.
    This extension to the December 2002 emergency rule (1) maintains 
the commercial annual quotas for ridgeback and non-ridgeback LCS at 783 
mt dw and 931 mt dw, respectively; (2) maintains the commercial annual 
quota for SCS at 326 mt dw; and (3) continues to suspend the regulation 
regarding the commercial ridgeback LCS minimum size. This emergency 
rule does not affect commercial management measures for pelagic sharks 
and does not affect the management measures for prohibited species or 
recreational fisheries.
    The extension is necessary to manage and conserve LCS and SCS based 
on the best scientific information available. Without this emergency 
rule extension, the reduced LCS and SCS commercial quotas of 816 mt dw 
and 329 mt dw, respectively, adopted in the HMS FMP and based on the 
1998 LCS stock assessment, would be in force, inconsistent with the 
terms of the court-approved settlement agreement and with National 
Standard 2 of the Magnuson-Stevens Act. The settlement agreement with 
commercial fishermen explicitly provided that NMFS could adjust LCS 
quotas and other management measures in the 1999 HMS FMP based on the 
2002 LCS stock assessment after completion of a peer review process, 
but could take emergency action as needed based on the assessment 
pending completion of the review process.
    NMFS is developing Amendment 1 to the HMS FMP for Atlantic sharks 
in response to the new stock assessments.

[[Page 31984]]

 NMFS recently completed scoping hearings on Amendment 1 to the HMS FMP 
and is developing a proposed rule for public review and comment. The 
proposed rule should be available during the summer of 2003 and the 
final rule should be effective by January 1, 2004.

Comments and Responses

    NMFS conducted four public hearings on the emergency rule (68 FR 
1024, January 8, 2003) and received many written and oral comments over 
a 50 day comment period. In addition, HMS Advisory Panel members 
provided NMFS with comments specific to the shark emergency rule at a 
meeting in Silver Spring, Maryland on February 10-12, 2003. Comments 
were submitted by recreational and commercial fishing organizations, 
state agencies, conservation groups, and the general public. The 
following is a summary of the major comments together with NMFS' 
responses. The comments are arranged by topic similar to the 
organizational structure of the EA/RIR.

LCS Commercial Annual Quota

    Comment 1: The LCS quota established by the December 27, 2002, 
emergency rule is 2 million pounds dw less than the 1996 quota. The 
1996 quota level would be available now if NMFS had assessed certain 
species of shark such as bull, dusky, silky, spinner, three species of 
hammerheads, and tiger. This is especially true given that dusky and 
tiger sharks, in particular, have shown large increases in catch 
lately.
    Response: The status of the LCS stock and the quota set in the 
emergency rule are based on the results of the 2002 LCS stock 
assessment which represents the best available science. The stock 
assessment was conducted for individual species for which there was 
sufficient information and for the complex as a whole to account for 
other species. The information from the stock assessment on the LCS 
complex as a whole indicates the LCS complex is overfished and that 
overfishing is occurring. This result does not warrant an increase in 
quotas for the species mentioned. Information may be available to 
conduct a stock assessment on dusky sharks in the future.
    Comment 2: The NMFS EA/RIR failed to describe which models were 
used to arrive at the quota levels. The EA/RIR did not provide the 
justification for choosing certain models. Additionally, NMFS did not 
acknowledge that uncertainty levels are high. NMFS should establish 
formal criteria for selecting appropriate models for determining quotas 
prior to completion of the stock assessment and not after. Also, NMFS 
should consider incorporating formal decision analysis techniques as 
part of the stock assessment.
    Response: NMFS relied on overall conclusions and findings of the 
stock assessment to determine quota levels consistent with the status 
of stocks. Similarly, determinations as to whether a stock is 
overfished or whether overfishing is occurring are based on the overall 
conclusions and findings of the stock assessment. The conclusions and 
findings of the stock assessment are based on balancing the results of 
all models, the appropriate application of the models, the sensitivity 
of the models to the data, and the convergence of the models. NMFS will 
consider formally identifying the criteria used to balance the results 
of the models in advance of the next stock assessment.
    Comment 3: Increasing the LCS quota was unjustified and could 
result in an increase in effort, which in turn, could result in an 
increase in bycatch of sharks and protected species.
    Response: NMFS set the ridgeback quota on a slightly reduced level 
from the average ridgeback harvest, based on average landings of each 
species, as a precautionary measure to ensure the species in the 
ridgeback LCS group, other than sandbar sharks, do not decline further. 
A similar process was followed to ensure that the non-ridgeback LCS, 
other than blacktip and spinners, do not decline further. The addition 
of 20 percent to the blacktip portion of the non-ridgeback quota level 
corresponds to the lower end of the increase suggested for blacktip 
sharks by the 2002 LCS stock assessment. NMFS does not expect the LCS 
quotas established in the emergency rule to result in increased fishing 
effort. From 1999 to 2001, the average LCS landings for all fishermen, 
including fishermen fishing in state waters, has been 1,693 mt dw and 
has ranged from 1,616 to 1,778 mt dw. The total ridgeback and non-
ridgeback quota under the emergency rule is within this range of recent 
landings at 1,714 mt dw. Under this landings level, the stock 
assessment found that the status of the LCS complex as a whole has 
improved since 1998. Because a number of states now close state waters 
with the closure of federal waters, because state landings are 
considered in LCS quota monitoring, and because federal permits are 
under a limited access system, NMFS does not expect an increase in LCS 
landings or effort or an increase in non-target finfish or protected 
species impacts.
    Comment 4: The LCS quota appears to be appropriate and does not 
pose significant risk to the continued rebuilding of the sandbar shark 
or the LCS complex. Additionally, experience shows that fishermen can 
target and produce catches that are largely dominated by blacktip 
sharks.
    Response: NMFS agrees. As described in response to comment 2, NMFS 
believes the quotas are appropriate.

Commercial LCS Size Limits

    Comment 1: The method of measuring ridgeback sharks described in 
the final rule for the HMS FMP (64 FR 29090, May 28, 1999) will not 
work properly.
    Response: This extension to the emergency rule suspends the minimum 
size requirement. NMFS will re-consider this comment when developing 
management alternatives for Amendment 1 to the HMS FMP.
    Comment 2: NMFS should provide an explanation as to why the 
ridgeback minimum size was lifted.
    Response: The ridgeback minimum size requirement was finalized in 
the 1999 HMS FMP based in part on the status of sandbar sharks 
according to the 1998 LCS stock assessment. Due to a lawsuit by the 
commercial fishing industry, the regulation was never implemented. In 
2002, NMFS conducted another LCS stock assessment that found that 
sandbar sharks were no longer overfished. Given that sandbar sharks are 
rebuilding without a minimum size requirement and given that 
implementation of a minimum size requirement can increase discards of 
sandbar and other sharks, NMFS believes that implementation of a 
minimum size could slow rebuilding of sandbar sharks and other LCS. 
NMFS will re-examine in Amendment 1 to the HMS FMP the implications, 
including those regarding dead discard, of implementing the minimum 
size in the commercial fishery.

SCS Commercial Annual Quota

    Comment 1: The SCS quota should not have been reduced because the 
assessment for finetooth sharks was incomplete and NMFS needs to gather 
more information about this species.
    Response: A stock assessment for SCS was completed in 2002. This 
stock assessment examined all SCS individually and as a whole complex 
and found that overfishing is occurring on finetooth sharks. While the 
stock assessment states that findings for finetooth sharks should be 
regarded more cautiously from the results for some of the other species 
because it used shorter catch-per-unit-effort series and it lacked some 
bycatch estimates

[[Page 31985]]

and catches in some years, the results of the stock assessment are 
still considered the best available science and NMFS must manage the 
fishery accordingly. In Amendment 1 to the HMS FMP, NMFS plans to 
examine the available information for finetooth and other SCS to 
determine the sources of fishing mortality and consider other 
alternatives, such as time/area closures, that may reduce fishing 
effort on finetooth sharks while minimizing impacts on the SCS fishery.
    Comment 2: Because finetooth, blacknose, and bonnethead may not be 
legally taken by recreational fishermen in federal or state waters 
because they do not reach the 4.5 foot FL size limit, commercial 
fishermen should be allowed to land more.
    Response: The SCS quota capped landings at the highest level of 
landings by commercial fishermen, including fishermen fishing in state 
waters. This quota cap was implemented to ensure fishing effort did not 
increase on finetooth sharks pending Amendment 1 to the HMS FMP.
    Comment 3: NMFS estimates of shark bycatch in the shrimp trawl 
fleet would exceed the annual quota for SCS.
    Response: NMFS acknowledges the incorrect estimates provided in the 
EA/RIR and clarifies in this emergency rule extension that only dead 
discards from HMS fisheries will be counted against the federal 
commercial SCS quota. Bycatch and discards in non-HMS fisheries are 
considered in the stock assessment. NMFS will work with the appropriate 
management body to minimize shark bycatch in those fisheries, to the 
extent practicable.

Accounting for all Fishing Mortality

    Comment 1: Dead discards should not be counted against future shark 
quotas. The number of dead discards should only be used in stock 
assessments that set quotas, in order to prevent confusion among 
fishermen.
    Response: Dead discards are used in stock assessments to determine 
the current level of fishing mortality and the status of the stocks. 
The stock assessment does not set the quota; instead the stock 
assessment provides estimates on the current rate of fishing mortality, 
the current biomass level, the rate of fishing mortality that the stock 
may be able to withstand, and the biomass level that could support 
maximum sustainable yield. From those estimates, NMFS can calculate a 
total allowable catch level. The quota level set in this emergency rule 
should be considered a commercial total allowable catch, including all 
state and federal landings and dead discards in HMS fisheries. NMFS is 
considering other methods for setting commercial landings quotas in 
Amendment 1 to the HMS FMP.
    Comment 2: NMFS should be commended for including state landings 
and dead discards in the quota. However, NMFS has not demonstrated that 
raising the quota to account for state landings and discards will not 
increase landings further.
    Response: The LCS ridgeback and non-ridgeback quotas in the 
emergency rule are based on average landings from 1999 to 2001 
including landings after federal closures. Any state landings and dead 
discards by HMS fishermen will be counted against the federal 
commercial quota. Additionally, if the catch quota is exceeded, the 
quota for the following year will be reduced. Similarly, dead discards 
will also reduce the quota in future years. Thus, overall landings 
should not increase. As described above, because a number of states now 
close state waters with the closure of federal waters, because state 
landings are considered in LCS quota monitoring, and because federal 
permits are under a limited access system, NMFS does not expect an 
increase in LCS landings or effort or an increase in non-target finfish 
or protected species impacts.
    Comment 3: NMFS should explain why accounting for dead discards 
will not take effect until 2005.
    Response: There is a time lag between the season closure dates and 
when all final landings are reported, entered into a database, and 
checked for quality control. Logbook data being reported in 2003 will 
not be fully entered and checked until late spring/early summer 2004. 
At that time, NMFS will attempt to verify logbook data with dealer and 
observer reports. However, the actual amount of dead discards for 2003 
will not be available until after the fishing seasons for 2004 have 
begun or ended. Thus, dead discards from 2003 cannot be used to adjust 
the catch quota until 2005.

Seasonal Quota Adjustments

    Comment 1: NMFS should consider staggered closure dates. Closing 
the fishery early would allow NMFS to tally the catch to date and then 
reopen it if there is quota remaining.
    Response: NMFS has tried this approach in the past and received 
numerous complaints from fishermen. Because most shark fishermen are 
permitted in numerous fisheries, after the shark season is closed, many 
of them refit their vessels to fish for other species. If NMFS then 
reopens the fishery, fishermen once again need to refit their vessels. 
Additionally, staggered closure dates with no advanced notice of when 
or if the fishery will reopen makes it difficult for fishermen to 
maintain a market niche. NMFS may examine this issue in Amendment 1 to 
the HMS FMP or in a future rulemaking.
    Comment 2: NMFS should consider moving the season start date from 
July 1 to June 1 for better market opportunities during the Forth of 
July holiday season. Similar consideration should be given to moving 
the January 1 start date to December 1.
    Response: Changing the season start date may have ecological and 
economic impacts. An analysis of these impacts needs to be fully 
considered by the public and NMFS before implementation. NMFS may 
consider changing season start dates in Amendment 1 to the HMS FMP or 
in a future rulemaking.
    Comment 3: The seasons for ridgeback and non-ridgeback LCS are out 
of sync with one another and will result in additional discards. NMFS 
should set a single season closure date for both ridgeback and non-
ridgeback LCS. This would also help with enforcement of fishing season 
closures.
    Response: The opening and closure dates for ridgeback and non-
ridgeback LCS are based in part on catch rates in previous years. When 
setting the opening and closure dates, NMFS also considered the fact 
that, even though fishermen can target certain species, ridgeback LCS 
could be discarded during the non-ridgeback LCS season. NMFS may 
consider a single season closure and other options in Amendment 1 to 
the HMS FMP.

Bycatch and Prohibited Species

    Comment 1: NMFS should consider time/area closures to protect 
juvenile sharks.
    Response: Time/area closures may have ecological and economic 
impacts. The impacts of any closures need to be fully considered by the 
public and NMFS before implementation. Additionally, some time/area 
closures to protect juvenile sharks may require coordination with 
states. NMFS may consider time/area closures as part of Amendment 1 to 
the HMS FMP.
    Comment 2: The LCS fishery should be closed in April to protect 
pregnant females and pups.
    Response: NMFS is considering several alternatives to protect 
pregnant female sharks and pups in Amendment 1 to the HMS FMP. These 
alternatives include time/area closures, regional quotas, and changing 
fishing season start dates.

[[Page 31986]]

    Comment 3: Dusky sharks are of particular concern due to incidental 
mortality. This mortality will continue as long as there is a directed 
shark fishery that is unable to selectively fish certain species. NMFS 
should conduct a thorough evaluation and reporting of the incidental 
mortalities of prohibited and overfished species occurring in the 
fishery.
    Response: NMFS believes that many fishermen target certain species 
of sharks. However, bycatch of other species is inevitable. The latest 
observer report for the bottom longline fishery indicates that dusky 
sharks represent approximately one percent of the total shark catch. In 
Amendment 1 to the HMS FMP, NMFS is considering options to reduce 
bycatch in the shark fishery.
    Comment 4: NMFS should reconsider the prohibition of dusky sharks, 
and several other coastal shark species such as the Atlantic angel, 
bignose, Caribbean reef, Caribbean sharpnose, and night sharks. NMFS 
should set a bycatch quota of 100,000 pounds dw for bignose sharks.
    Response: As noted above, according to the latest observer report 
for the bottom longline fishery, dusky sharks comprise approximately 
one percent of the total shark catch. The other species listed are 
either not observed caught or comprise less than one percent of total 
shark catch in aggregate. NMFS may consider several options to address 
prohibited species and reduce bycatch as part of Amendment 1 to the HMS 
FMP.
    Comment 5: Dusky, night, and sand tiger sharks are so depleted that 
they are considered candidates for listing under the Endangered Species 
Act (ESA). NMFS should assess and reduce unintentional bycatch of these 
species.
    Response: NMFS will be considering various options in Amendment 1 
to the HMS FMP to reduce bycatch, as required by the Magnuson-Stevens 
Act. NMFS recently completed a status review under ESA for dusky sharks 
and hopes to complete status reviews for night and sand tiger sharks in 
the near future. The results of the dusky shark status review indicated 
that recent years have shown an increase in abundance but that catch 
rates are still much lower than catch rates in the late seventies and 
early eighties.
    Comment 6: NMFS should consider slot sizes to protect large 
females.
    Response: NMFS is examining several options to reduce bycatch as 
part of Amendment 1 to the HMS FMP. NMFS may consider this option at 
that time.

General

    Comment 1: State regulations should mirror federal regulations, 
particularly with regard to closures.
    Response: NMFS agrees and will work with states during and after 
the amendment process in order to reach this goal.
    Comment 2: The emergency rule sidestepped the process of giving the 
public an opportunity to comment on management decisions.
    Response: NMFS agrees that the public should be given every 
opportunity to comment on management decisions. The current emergency 
rule was necessary because, once the December 2001 emergency rule 
expired, certain measures from the 1999 HMS FMP, which were no longer 
based on the best available science, would have gone into place unless 
regulations were promulgated to replace them. While prior notice and 
comment were impracticable in this case, NMFS held four public hearings 
on the emergency rule, received comments from the HMS Advisory Panel 
members at a February 2003 meeting, and gathered significant public 
input which was considered in the decision to extend the emergency 
rule.
    Comment 3: NMFS should not have proceeded with new quotas before 
peer reviews were complete. The peer reviews did not endorse raising 
the LCS quota.
    Response: The peer review process, per the settlement agreement 
with the commercial industry, was not complete until mid-December 2002. 
If NMFS had waited for the peer reviews before moving forward with a 
rule, the commercial regulations in the HMS FMP would have gone into 
place, contrary to National Standard 2 of the Magnuson-Stevens Act. 
Those regulations in the HMS FMP could have caused substantial harm to 
the fishing industry. NMFS did consider the peer reviews of the 2002 
LCS stock assessment once they were available and found that they were 
generally positive and supported the 2002 LCS stock assessment. 
Additionally, the peer reviews themselves were not intended to endorse 
quota recommendations, but rather to provide an unbiased review of 
methodology and appropriateness of stock assessment models and 
interpretation of those models. All peer reviews concluded that the 
models and methodology used were appropriate. Had the peer reviews been 
negative or concluded that models were inappropriate, NMFS would have 
acted immediately to revise the emergency rule.
    Comment 4: The Advisory Panel should have been consulted on the 
emergency rule.
    Response: NMFS makes every effort to consult the Advisory Panel 
prior to issuing FMP amendments or major and/or controversial rules. As 
described above, the Advisory Panel did provide comments during the 
comment period on the emergency rule. Additionally, NMFS is in the 
process of developing Amendment 1 to the HMS FMP that will take into 
consideration the comments and opinions of the Advisory Panel, 
stakeholders, conservationists and the public.
    Comment 5: NMFS should report which states are allowing shark 
landings after federal closures and the magnitude of these landings for 
each state.
    Response: NMFS provided a summary of this information at the 
Advisory Panel meeting and plans to make it available in Amendment 1 to 
the HMS FMP.
    Comment 6: NMFS should implement minimum size limits for 
recreational fishermen.
    Response: NMFS currently has a minimum size limit for recreational 
shark fishermen. Except for Atlantic sharpnose, recreational fishermen 
are authorized to keep one shark per vessel per trip larger than 4.5 
feet fork length. There is no minimum size for Atlantic sharpnose 
sharks. NMFS may consider other minimum size requirements for 
recreational fishermen in Amendment 1 to the HMS FMP.
    Comment 7: Based on the improved stock picture provided by the 2002 
SCS assessment, NMFS should consider increasing the recreational bag 
and size limits for SCS. Recreational fishermen have been unfairly 
penalized by LCS and SCS assessments in the past.
    Response: NMFS is examining several options for recreational 
fishing as part of Amendment 1 to the HMS FMP. NMFS may consider this 
option at that time.
    Comment 8: Vessel upgrading restrictions are a safety concern. The 
current management regime forces smaller boats to fish further offshore 
in adverse conditions.
    Response: Vessel upgrading restrictions were implemented to control 
excess fishing capacity in the shark fishery. NMFS believes that 
announcing the duration of the shark fishing season ahead of time 
should allow fishermen to avoid fishing under adverse conditions. NMFS 
is considering an amendment to some of the limited access regulations 
and will consider this issue in that process.
    Comment 9: NMFS should leave a quota for incidental catch.

[[Page 31987]]

    Response: NMFS is considering several quota alternatives in 
Amendment 1 to the HMS FMP and may consider this comment in that or in 
another rulemaking.
    Comment 10: Harvesting sharks for meat or cartilage is completely 
unnecessary.
    Response: NMFS disagrees. Sharks are a fishery resource that 
contributes to the food supply, economy, and health of the Nation as 
described in the Magnuson-Stevens Act.
    Comment 11: NMFS should educate the public about sharks and their 
behavior to dispel the ``Jaws'' misconception. Sharks are much more 
economically valuable alive than dead.
    Response: NMFS agrees that there are misconceptions about sharks 
and has made efforts to educate the public through various media 
including the internet. For instance, in early 2002, NMFS announced the 
availability of a website devoted exclusively to shark education at 
http://www.nmfs.noaa.gov/sharks/ and will soon release an 
identification guide for all HMS including sharks. NMFS agrees that 
sharks are economically valuable, both as a harvested resource, and as 
an component of the marine environment that user groups, such as scuba 
divers, may wish to observe in the wild. NMFS believes that the 
sustainable harvest of sharks will not prevent segments of the 
population who derive economic benefit from sharks living in the wild 
or in public display facilities to continue doing so.
    Comment 12: Sharks are top predators in the marine food chain and 
harvesting them will disrupt the food web.
    Response: NMFS agrees that sharks are an important component of the 
marine environment and current regulations are designed to promote a 
sustainable fishery. Through sound conservation and management, NMFS 
believes that shark populations can be rebuilt and that the ocean's 
food web will not be disrupted.
    Comment 13: NMFS should lobby Asians to stop shark finning.
    Response: NMFS cannot regulate fishing vessels from other 
countries. However, the Shark Finning Prohibition Act which was passed 
on December 21, 2000, and implemented on February 2, 2002 (67 FR 6194), 
prevents any person subject to U.S. jurisdiction from engaging in shark 
finning (finning is the practice of removing the fin or fins from a 
shark and discarding the remainder of the shark). Additionally, the 
Shark Finning Prohibition Act requires the United States to initiate 
discussions with other nations regarding the prohibition on shark 
finning. NMFS has been working with other countries in regard to this. 
By becoming a signatory nation to the United Nations Food and 
Agriculture Organization's International Plan of Action on Sharks, the 
United States has agreed that shark conservation is a concern, both 
domestically and internationally. The United States has also agreed 
that all nations and international fishery organizations should take 
action to ensure that shark populations are monitored, and fishery 
conservation measures are implemented, to protect sharks from over-
exploitation.
    Comment 14: Sharks are going extinct.
    Response: While some sharks species are overfished, NMFS does not 
believe they are going extinct. To the contrary, the most recent LCS 
and SCS stock assessments indicate that several of the most heavily 
exploited species are no longer overfished and that others are showing 
positive signs of recovery. Species that are of particular concern are 
on the candidate species list for listing under ESA, or are on the 
prohibited species list. However, no species are listed under the ESA 
at this time.
    Comment 15: Sharks may be an important cure for cancer.
    Response: NMFS agrees that sharks may be important in our search 
for cures to certain diseases, and NMFS fully supports further research 
in this area.

Clarification of the Dead Discard Accounting

    After receiving public comments on the emergency rule issued 
December 27, 2002 (67 FR 78990), NMFS noted some confusion regarding 
which dead discards are counted against the commercial shark quotas. 
This confusion presented itself particularly in regard to SCS. 
Specifically, shrimp trawl discards of SCS from 1998 to 2000 ranged 
from 570 mt dw to 1,093 mt dw annually with an average of 744 mt dw of 
discards annually. This average amount is 418 mt dw greater than the 
SCS annual quota of 326 mt dw established by the emergency rule. As 
analyzed in the HMS FMP, the provision to count dead discards against 
the annual quota applies only to incidental catch by fishermen that 
hold HMS fishing permits.

Annual Landings Quotas

    The 2003 annual landings quotas for LCS and SCS are maintained at 
783 metric tons 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 maintained at 488 mt dw, 273 mt dw, and 92 mt 
dw, respectively.
    Of the 655.5 mt dw established for the second 2002 semiannual LCS 
season (67 FR 37354, May 29, 2002), 589 mt dw was taken. As explained 
in the notice announcing the first 2003 semiannual season (67 FR 78990, 
December 27, 2002), NMFS is adding the remaining 65 mt dw to the 
available quota for the second 2003 semiannual LCS fishing season. In 
the past, landings between the ridgeback and non-ridgeback LCS species 
groups have been approximately the same. Thus, this additional amount 
will be split equally between the ridgeback and non-ridgeback LCS 
species groups. As such, the ridgeback LCS quota for the second 2003 
semiannual season is 424 mt dw. The non-ridgeback LCS quota for the 
second 2003 semiannual season is 498 mt dw. The SCS second 2003 
semiannual quota is established at 163 mt dw. The second 2003 
semiannual quotas for pelagic, blue, and porbeagle sharks are 
established at 244 mt dw, 136.5 mt dw, and 46 mt dw, respectively.

Fishing Season Notification

    The second semiannual fishing season of the 2003 fishing year for 
the commercial fishery for ridgeback and non-ridgeback LCS, SCS, and 
pelagic sharks in the western north Atlantic Ocean, including the Gulf 
of Mexico and the Caribbean Sea, will open July 1, 2003. To estimate 
the closure dates of LCS, NMFS used the average catch rates for each 
species group from the second seasons from the years 2000, 2001, and 
2002 and also considered the reporting dates of permitted shark dealers 
and the potential for discards. Based on average ridgeback LCS catch 
rates in recent years, approximately 75 percent of the available 
ridgeback LCS quota would likely be taken by the second week of 
September and approximately 90 percent of the available ridgeback LCS 
quota would likely be taken by the last week of September. Based on 
average non-ridgeback catch rates in recent years, approximately 80 
percent on the non-ridgeback LCS quota would likely be taken by the 
second week in September and approximately 95 percent of the non-
ridgeback LCS quota would likely be taken by the last week in 
September. The second week corresponds with the end of the first 
biweekly reporting period for September for permitted shark dealers. In 
order to ensure the quota is not exceeded once dead discards and state 
landings are accounted for, NOAA Fisheries believes closing the fishery 
by the second week of September is prudent. Accordingly, the Assistant 
Administrator for Fisheries (AA) has determined that the ridgeback and 
non-ridgeback LCS

[[Page 31988]]

quotas for the second 2003 semiannual season will likely be attained by 
September 15, 2003. Thus, the ridgeback and non-ridgeback LCS fisheries 
will close September 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.

Classification

    This emergency rule extension is published under the authority of 
the Magnuson-Stevens Act. The AA has determined that these emergency 
regulations are necessary to ensure that regulations in force are 
consistent with the best available science and a court-approved 
settlement agreement.
    NMFS prepared an EA for the initial emergency rule that describes 
the impact on the human environment and found that no significant 
impact on the human environment would result. During the public comment 
period, NMFS became aware that several corrections and clarifications 
were needed for the initial EA. As a result, NMFS prepared a 
supplemental EA. None of the corrections or clarifications changed the 
findings of the EA or NMFS' decision to extend the emergency rule. 
Thus, the supplemental EA found that no significant impact on the human 
environment would result from extending the emergency rule. This 
emergency rule extension is of limited duration. Additional details 
concerning the basis for this action are contained in the initial 
emergency rule and are not repeated here. NMFS intends to have 
management measures in Amendment 1 to the HMS FMP in place by January 
1, 2004.
    NMFS also prepared a RIR for the emergency rule which assesses the 
economic costs and benefits of the action. Additional details 
concerning the basis for this action are contained in the initial 
emergency rule and are not repeated here.
    This emergency rule extension 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.
    Because no general notice of proposed rulemaking is required to be 
published in the Federal Register for this emergency rule extension by 
5 U.S.C. 553 or by any other law, the analytical requirements of the 
Regulatory Flexibility Act do not apply; thus, no Regulatory 
Flexibility Analysis was prepared.
    Pursuant to provisions of 15 CFR part 930 and Section 307 of the 
Coastal Zone Management Act of 1972, state Coastal Zone Management 
(CZM) Programs, including Puerto Rico and the U.S. Virgin Islands, were 
advised of NMFS' determination that the emergency rule was consistent 
with the enforceable provisions of the CZM Programs. Of the eleven 
responses received, all concurred with NMFS' determination.
    The AA finds that it is unnecessary and contrary to the public 
interest to provide prior notice of and an opportunity for public 
comment on this emergency rule extension. In the initial emergency rule 
published on December 27, 2002 (67 FR 78990), NMFS requested, and 
subsequently received, comments on these management measures. 
Therefore, the agency has the authority to extend the emergency rule 
for another 180 days.
    This emergency rule extension contains the same measures as in the 
initial emergency rule and must be in place by July 1, 2003, otherwise 
LCS quotas and certain other management measures from the 1999 HMS FMP, 
which were based on the 1998 LCS stock assessment, will go into effect. 
After reviewing the independent peer reviews of the 1998 assessment, 
which were required as part of a court-approved settlement agreement, 
NMFS determined that portions of the 1998 assessment did not constitute 
the best available science. Allowing the LCS quotas from the 1999 FMP 
to go into effect, thus, would be inconsistent with National Standard 2 
of the Magnuson-Stevens Act and also would result in a significant 
adverse economic impact to LCS fishermen, as fishing quotas that have 
been at least 1,285 mt dw for LCS since 1997 would be reduced by at 
least 36 percent. Additionally, the settlement agreement contemplated 
that NMFS would not adjust LCS quotas and other management measures in 
the 1999 HMS FMP until after a peer review process on a new LCS stock 
assessment was complete, but could take emergency action as needed 
pending completion of the review process.
    Since publication of the initial emergency rule, NMFS has held four 
public hearings and solicited comment on the rule during a 50 day 
comment period, reviewed and analyzed the findings of the peer reviews 
of the 2002 LCS stock assessment, and continued to work on Amendment 1 
to the HMS FMP to address long-term, comprehensive shark management 
measures based on the 2002 LCS and SCS stock assessments. NMFS also 
developed an issues and options paper for Amendment 1 to the HMS FMP, 
and held seven scoping meetings including one at the February 2003 
meeting of the HMS and Billfish Advisory Panels. NMFS has received 
extensive public comment on the emergency rule as a result of these 
processes, and as noted above, this extension would not change any 
measures from the initial emergency rule.
    NMFS will consider many of the comments received on this action in 
the course of developing Amendment 1 to the HMS FMP. Therefore, for all 
of the above reasons, the AA finds good cause under 5 U.S.C. 553(b)(B) 
to waive prior notice and the opportunity for public comment.

    Dated: May 22, 2003.
Rebecca J. Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 03-13420 Filed 5-28-03; 8:45 am]
BILLING CODE 3510-22-S