[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Notices]
[Pages 22103-22106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9738]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XV13


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
Atlantic Coastal Shark Fishery

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

ACTION:  Notice of determination of non-compliance; Declaration of a 
moratorium.

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SUMMARY:  In accordance with the Atlantic Coastal Fisheries Cooperative 
Management Act (Act), NMFS, upon a delegation of authority from the 
Secretary of Commerce (Secretary), has determined that the State of New 
Jersey has failed to carry out its responsibilities under the Atlantic 
States Marine Fisheries Commission's (Commission) Interstate Fishery 
Management Plan for Atlantic Coastal Sharks (Plan) and that the 
measures New Jersey has failed to implement and enforce are necessary 
for the conservation of the shark resource. This determination is 
consistent with the findings of the Commission on February 4, 2010. 
Pursuant to the Act, a Federal moratorium on fishing, possession, and 
landing of all shark species indentified in the Commission Plan is 
hereby declared and will be effective on July 30, 2010. The moratorium 
will not be withdrawn by NMFS until New Jersey is found to have come 
back into compliance with the Commission's Interstate Fisheries 
Management Plan for Atlantic Coastal Sharks.

DATES:  Effective July 30, 2010.

ADDRESSES:  Emily Menashes, Acting Director, Office of Sustainable 
Fisheries, NMFS, 1315 East-West Highway, Room 13362, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT:  Brian Hooker, Fishery Management 
Specialist, NMFS Office of Sustainable Fisheries, (301) 713-2334.

SUPPLEMENTARY INFORMATION:

Non-Compliance Statutory Background

    The Atlantic Coastal Act, 16 U.S.C. 5101 et seq., sets forth a non-
compliance review and determination process that is triggered when the 
Commission finds that a state has not implemented measures specified in 
the Plan and refers that determination to the Secretary for review and 
potential concurrence. The Secretary delegated all decision-making 
under this process to NMFS, although NMFS is required to notify the 
Secretary before any final action is taken.
    The Atlantic Coastal Act's non-compliance process involves two 
stages of decision-making. In the first stage, the Secretary (delegated 
to NMFS) must make two findings: 1) whether the state in question has 
failed to carry out its responsibility under the Commission's 
Interstate Fishery Management Plan; and if so, 2) whether the measures 
that the state failed to implement and enforce are necessary for the 
conservation of the fishery in question. These initial findings must be 
made within 30 days after receipt of the Commission's non-compliance 
referral and consequently, this first stage of decision-making is 
referred to as the ``30-Day Determination.'' A positive 30-Day 
Determination triggers a mandatory moratorium on fishing within state 
waters for the fishery in question. This moratorium may begin 
immediately or at any time within six months of the 30-Day 
Determination.

Commission Referral of Non-Compliance

    On February 4, 2010, the Commission found that the State of New 
Jersey is out of compliance with the Commission Plan. Specifically, the 
Commission found that New Jersey has not implemented regulations that 
are necessary to rebuild depleted shark stocks, ensure sustainable 
harvest of others, and provide protection for sharks in nursing and 
pupping grounds found within State waters.
    The Commission Plan requires all member States to implement the 
Plan's shark regulations by January 1, 2010. As of January 2010, all 
member States except New Jersey had implemented some of the plan and/or 
had tentative dates for implementation of the plan or conservation 
equivalency measures. According to New Jersey's Division of Fish and 
Wildlife, conforming shark regulations have been drafted. These draft 
regulations were submitted to the Governor's office for approval, 
publication, and public comment in the fall of 2009. However, a change 
of State administration and other ministerial delays prevented the 
regulations from being implemented. During both the Commission's 
February 2, 2010, Coastal Shark Management Board meeting and its 
February 4, 2010, Policy and Business Board meetings, New Jersey did 
not protest the Boards' determinations that they were not in compliance 
with the Plan.

Agency Action In Response to Commission Non-Compliance Referral

    The Commission forwarded the findings of their vote on February 4, 
2010, in a formal non-compliance referral letter that was received on 
February 8, 2010. In response, NMFS began the Atlantic Coastal Act's 
30-Day Determination clock. Immediately thereafter, NMFS sent letters 
to the State of New Jersey, the Mid-Atlantic and New England Fishery 
Management Councils, and to the Commission, advising them of the 
Atlantic Coastal Act's non-compliance process, inviting them to provide 
commentary on the issue, and in the case of New Jersey, inviting the 
State to meet with NMFS to present its position in person or provide 
written comments on the Commission's findings.
    New Jersey elected to meet with NMFS staff on March 2, 2010, via 
conference call and submitted a written statement outlining their 
timetable for implementing the regulations for the Atlantic Coastal 
Shark Plan. Specifically, staff of New Jersey's Department of 
Environmental Protection (NJDEP) outlined their intention to publish 
the proposed rule, solicit and respond to public comment, and have a 
rule in place by mid-July that would be compliant with the Commission's 
Plan. The Commission also responded on February 25, 2010, re-
emphasizing the importance of the seasonal closure to protect pupping 
sandbar sharks from May 15 July 15. No comments have yet been received 
from the New England Fishery Management Council or the Mid-Atlantic 
Fishery Management Council.

Agency's Findings

    New Jersey did not fulfill its responsibilities under the 
Commission's Atlantic Coastal Shark Plan

[[Page 22104]]

    New Jersey does not dispute that it has not implemented the 
management measures for the Commission's Atlantic Coastal Shark Plan. 
In fact, New Jersey has already taken several steps to implement the 
Plan and has been in communication with NMFS regarding its timetable 
for implementing the Plan. NMFS determined the measures that New Jersey 
failed to implement are necessary for the conservation of the fishery
    The Atlantic shark species groups included in the Commission's Plan 
are smooth dogfish species (smooth dogfish), small coastal sharks 
species (Atlantic sharpnose, finetooth, blacknose, and bonnethead 
sharks), non-sandbar large coastal sharks species (silky, tiger, 
blacktip, spinner, bull, lemon, nurse, scalloped hammerhead, great 
hammerhead, and smooth hammerhead sharks), pelagic species (shortfin 
mako, porbeagle, common thresher, oceanic whitetip, and blue sharks), 
prohibited species (sandtiger, bigeye sandtiger, whale, basking, white, 
dusky, bignose, Galapagos, night, reef, narrowtooth, Caribbean 
sharpnose, smalltail, Atlantic angel, longfin mako, bigeye thresher, 
sharpnose sevengill, bluntnose sixgill, and bigeye sixgill sharks), and 
research species (sandbar sharks).
    As a whole, the measures in the Commission's Plan are necessary for 
the conservation of Atlantic coastal sharks. Relative to other fish 
species, all shark species have a very low reproductive potential due 
to a slow growth rate, late sexual maturity, one to two-year 
reproductive cycles, a small number of young per brood, and specific 
requirements for nursery areas. Additionally, simple biological 
information on many species such as reproductive cycles, nursery and 
mating areas, number of young per brood, and age at maturity is 
unknown. A number of shark species, such as sandbar, dusky, blacknose, 
and porbeagle sharks, are overfished with lengthy rebuilding time 
periods ranging from 19 years to approximately 400 years. Other 
species, such as shortfin mako sharks, are not overfished but are 
experiencing overfishing. Many species, such as white, basking, whale, 
sand tiger, and bigeye sand tiger sharks, have an unknown status but 
are prohibited in Federal waters and in the Commission's Plan due to 
concerns that fishing pressure could lead to overfishing given those 
species' life history and very low reproductive capacity. While all 
known shark species can be identified to species by shark experts, 
identification of certain species of sharks can be easily confused by 
recreational and commercial fishers. Incorrect identification could 
lead to additional mortality on stocks that cannot handle such 
mortality. As such, many of the shark management measures, both Federal 
regulations and those in the Commission Plan, are designed to provide 
conservation to some species by extending those regulations to all 
species. This approach is made to address any mis-identification issues 
for species that look alike to the average person. These types of 
regulations include but are not limited to placing species into species 
groups based on the gear the species is usually caught on, setting the 
recreational trip and size limits to apply to all species, requiring 
all state dealers to obtain a Federal dealer permit (which requires a 
shark identification course), and establishing the seasonal closure for 
many species from May 15 to July 15.
    Current New Jersey regulations require commercial fishermen to 
obtain a Federal commercial shark permit. Thus, New Jersey commercial 
shark fishermen must comply with the Shark Plan by virtue of their 
Federal permit, even in the absence of state shark regulations. Many of 
the Federal commercial regulations overlap with the Commission's Plan. 
However, current New Jersey recreational regulations, such as the 48 
inch total length minimum size and 2 fish per vessel (or 2 per person 
if shore fishing) are less restrictive than either the Federal or 
Commission Plan regulations. Additionally, New Jersey does not prohibit 
landing of all the Plan's prohibited and research species. Because of 
these less restrictive measures, New Jersey fishermen could land more 
sharks, and smaller sharks including some species, such as sandbar, 
dusky, and porbeagle sharks, which have rebuilding time periods of at 
least 70 years. The Commssion has noted that the seasonal closure of 
the pupping and nursing grounds in Delaware Bay and the prohibition on 
landing of sandbar and other coastal shark species is necessary to 
rebuild shark stocks. The Commission's Technical Committee has 
identified Delaware Bay as one of the most important nursing grounds 
for depleted sandbar sharks on the Atlantic Coast. This area and other 
areas in New Jersey state waters is immediately adjacent to Federal 
determinations of essential fish habitat for one or more life stage 
(neonates, juveniles, or adults) for many species of sharks, including 
basking, great hammerhead, scalloped hammerhead, white, dusky, tiger, 
sand tiger, angel, Atlantic sharpnose, shortfin mako, blue, and common 
thresher sharks. Since the State of New Jersey occupies a significant 
portion of the Delaware Bay shoreline and also is adjacent to the 
essential fish habitat for many shark species, the State's 
implementation of measures consistent with the Commission Plan is 
crucial. Accordingly, the State of New Jersey's failure to implement 
conservation measures under the Plan could jeopardize both Commission 
and Federal rebuilding efforts.
    The Moratorium shall be implemented on July 30, 2010
    Pursuant to the Atlantic Coastal Act, NMFS must implement a 
moratorium within 180 days of the positive 30-Day Determination that is 
being made in this matter. On March 16, 2010, NMFS notified the State 
of New Jersey and the Commission of its determination that New Jersey 
failed to carry out its responsibilities under the Commission's Plan 
and that the measures New Jersey has failed to implement and enforce 
are necessary for the conservation of the shark resource. In this 
determination and notification NMFS detailed the actions necessary to 
avoid the implementation of a Federal moratorium for sharks in New 
Jersey waters. In the initial determination NMFS would have implemented 
a moratorium that would have prohibited, in State waters, the 
possession of the Commission's non-sandbar large coastal shark species, 
the Commission prohibited species, and the Commission research species 
(sandbar sharks) starting May 15, 2010, followed by the full moratorium 
prohibiting, in State waters, the possession of all shark species 
listed in the Commission Plan starting July 30, 2010. The initial May 
15 date for a moratorium was necessary to provide substantial 
conservation benefit to those Commission shark species that utilize the 
pupping areas located in New Jersey state waters early in the year. 
However, on March 25, 2010 New Jersey effected a Notice of 
Administrative Change (N.J.A.C. 7:25-18.1) closing the shark fishing 
season in State waters from May 15 July 15. Although the State's 
closure does not explicitly prohibit possession of all the prohibited 
species in the Commission's Plan it has been determined that the 
closure protects shark pupping grounds in New Jersey waters and meets 
the conservation objectives of a Federal moratorium on the possession 
of the Commission's non-sandbar large coastal shark species, the 
Commission's prohibited species, and the Commission's research species 
(sandbar sharks) beginning May 15, 2010. The species not included in 
the State's

[[Page 22105]]

closure are: longfin mako, bigeye thresher, sevengill, sixgill, bigeye 
sixgill, Caribbean sharpnose, smalltail, and Atlantic angel sharks. 
These species, however, are not likely to be impacted in the short 
term, prior to July 30, 2010, as their distribution is either offshore 
in federally-regulated waters, or rarely encountered in New Jersey 
inshore waters. Accordingly, New Jersey's new regulations have mooted 
the conservation need for a May 15, 2010, Federal moratorium and as 
such, a May 15th Federal moratorium for these species would achieve no 
conservation objective. Since New Jersey has yet to adopt all of the 
provisions of the Commission's shark plan, NMFS has determined that a 
moratorium effective July 30, 2010, would provide conservation benefit 
for all shark species, including the Commission's prohibited shark 
species and pelagic shark species that are observed off the coast of 
New Jersey later in the year, by preventing shark fishing during a time 
period when substantial shark fishing is still occurring.
    NMFS staff analyzed several moratorium dates prior to deciding upon 
the dates specified above. In short, there were three categories of 
timing alternatives for Atlantic Coastal Act moratoria: (1) implement a 
full moratorium on all shark species starting May 15 (the day the 
Commission's seasonal shark closure begins); (2) implement a full 
moratorium on the last possible date (roughly Day 180 of the statutory 
six-month timeframe); and (3) implement a moratorium for some shark 
species on May 15 to be consistent with the Commission Plan's seasonal 
shark closure that would expand to a full moratorium for all Commission 
shark species on July 30. In this circumstance, the chosen third 
alternative provided significant Atlantic coastal shark biological/
conservation benefits, implemented a seasonal closure similar to that 
of the Commission Plan, and satisfied the need for public notice of the 
moratorium and interagency logistical coordination. In March and April, 
commercial New Jersey fishermen land approximately 5-percent and 
recreational New Jersey fishermen land less than one percent of the 
yearly average shark landings. As such, an immediate closure would not 
offer much more conservation value over a May 15 closure. The May 15th 
and July 30th dates provided more conservation than the end of the six-
month moratorium window, which would be September 6. By September, the 
fishery is beginning to wind down with approximately 65 and 75 percent 
of the average yearly commercial and recreational shark catch already 
landed, respectively. This is due to lower water temperatures and the 
resulting southerly migration of many shark species away from New 
Jersey. For this reason, a closure near the end of the six-month 
moratorium window would have had minimal conservation benefit.
    As previously mentioned, New Jersey has already effected an 
administrative change implementing a seasonal closure protecting shark 
nursery grounds from May 15 to July 15. NMFS has determined that this 
action negates the need to implement a Federal moratorium for select 
shark species beginning May 15, 2010 as outlined in the preferred third 
alternative described in the previous paragraph. The Commission 
emphasized, and NMFS concurs, that the state seasonal closure is of 
particular importance in the protection of certain shark stocks as it 
will close important pupping and nursing grounds in Delaware Bay and 
other State waters. New Jersey's action satisfied that conservation 
need.
    Staff from NJDEP have also indicated that management measures fully 
implementing the Commission's Plan are expected to be in place by July 
19, 2010. These measures in the Plan are needed given the biology and 
stock status of many species of sharks. As such, the State's 
cooperation with the Commission's Plan is crucial. Accordingly, its 
failure to implement conservation measures under the Commission's Plan 
will most certainly jeopardize any rebuilding efforts.

Moratorium Prohibitions

    There will be a prohibition on the possession of all Commission 
shark species, a group that includes non-sandbar large coastal shark 
species, the Commission's prohibited species, the Commission's research 
species (sandbar sharks), small coastal species, pelagic species, and 
smooth dogfish species, beginning July 30, 2010. Once the moratorium 
takes effect, proscribed conduct shall reflect the prohibited acts 
mandated by the Atlantic Coastal Act as set forth as 16 U.S.C. 5106(e). 
Accordingly, as of Friday, July 30, 2010, it shall be unlawful for any 
person to do the following:
    1. Engage in fishing for the following species within New Jersey 
waters - 0 to 3 nautical miles (0 to 5.5 kilometers) from shore: 
Commission large coastal sharks (silky, tiger, blacktip, spinner, bull, 
lemon, nurse, scalloped hammerhead, great hammerhead, smooth 
hammerhead), the Commission's prohibited species (whale, basking, sand 
tiger, bigeye sand tiger, white, dusky, night, bignose, Galapagos, 
Caribbean reef, narrowtooth, longfin mako, bigeye thresher, sevengill, 
sixgill, bigeye sixgill, Caribbean sharpnose, smalltail, and Atlantic 
angel sharks), the Commission's research species (sandbar sharks), the 
Commission's small coastal sharks (Atlantic sharpnose, blacknose, 
finetooth, and bonnethead sharks), the Commission's pelagic sharks 
(shortfin mako, thresher, oceanic whitetip, porbeagle, and blue 
sharks), and smooth dogfish.
    2. Land, attempt to land, or possess any of the shark species 
identified in paragraph 1 (above) in the State of New Jersey.
    3. Fail to return to the water immediately, with a minimum of 
injury, any Commission shark species identified in paragraph 1 (above) 
that are taken incidental to fishing for any other fish species (i.e., 
as bycatch);
    4. Refuse to permit any officer authorized to enforce the 
provisions of this moratorium to board a fishing vessel subject to such 
person's control for purposes of conducting any search or inspection in 
connection with the enforcement of this moratorium;
    5. Forcibly assault, resist, oppose, impede, intimidate, or 
interfere with any such authorized officer in the conduct of any search 
or inspection under this moratorium;
    6. Resist a lawful arrest for any act prohibited by this 
moratorium;
    7. Ship, transport, offer for sale, sell, purchase, import, or have 
custody, control, or possession of, any shark taken or retained in 
violation of this moratorium; or
    8. Interfere with, delay, or prevent, by any means, the 
apprehension or arrest of another person, knowing that such other 
person has committed any act prohibited by this moratorium.

Classification

    This declaration of a moratorium is consistent with the Atlantic 
Coastal Act at 16 U.S.C. 5106 insofar as New Jersey has been found to 
have failed to carry out its responsibilities under the Commission's 
Atlantic Coastal Shark Plan and the measures that New Jersey has failed 
to implement and enforce are necessary for the conservation of the 
shark fishery. Further, the moratorium prohibits fishing for Atlantic 
coastal sharks within New Jersey state waters and/or possessing or 
landing Atlantic coastal sharks and is being implemented within six 
months of the agency findings.
    The declaration of moratorium is consistent with the Administrative

[[Page 22106]]

Procedures Act at 5 U.S.C. 555 insofar as New Jersey was promptly 
notified of the Commission's non-compliance referral and given an 
opportunity to meet with the agency and provide comments on the matter. 
New Jersey has also been promptly notified of the agency's 
determination in this matter. Additionally, NMFS provided notice to the 
public of this compliance action in a notice published in the Federal 
Register (75 FR 9158, March 1, 2010). NMFS received one comment in 
response to that notice. The comment supported closing all shark 
fishing indefinitely off the coast of New Jersey. In response NMFS 
finds that the comment goes beyond the scope of shark conservation 
management measures as detailed in the Commission's Plan, and although 
we concur that a full moratorium on the possession of sharks in the 
State's waters is necessary for shark conservation beginning July 30, 
2010, it will only be in place so long as the State of New Jersey 
remains out of compliance with the Commission's Plan. Action beyond 
that is not warranted in this action.
    The Assistant Administrator for Fisheries, NOAA (AA), finds that 
providing additional prior public notice and opportunity for comment is 
impracticable and unnecessary. Providing additional notice and 
opportunity for comment would be impracticable, because it would 
prevent the agency from executing its functions under the Act in a 
timely manner. The Act contemplates quick action on the declaration of 
a moratorium that would not be possible if additional notice and an 
opportunity for comment are provided. Furthermore, providing additional 
notice and opportunity for comment would be unnecessary because it 
would serve no purpose. The nature of a moratorium is described in the 
Act and, therefore, cannot be modified in response to public comments.
    The declaration of moratorium does not trigger the analytical 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. 
because prior notice and opportunity for public comment are not 
required for this determination by the Administrative Procedures Act or 
any other law.
    The declaration of a moratorium does not fall under review under 
Executive Order 12866 insofar as the moratorium is not a regulatory 
action of the agency but is an action mandated by Congress upon the 
findings of certain conditions precedent set forth in the Atlantic 
Coastal Act, which also prescribes the nature and extent of the 
moratorium. Although the recreational and commercial shark fisheries in 
New Jersey are of importance to the State, the moratorium as proposed 
is not expected to materially or adversely affect the economy or have 
an impact of over $100 million. New Jersey has expressed the desire to 
come into compliance with the Commission's Plan within this calendar 
year, so although the state has not yet completed an affirmative and 
observable regulatory action, NMFS fully expects New Jersey to come 
into compliance with the Plan by the end of the calendar year. The 
matter creates no serious inconsistency with actions by other agencies 
and it is not expected to have material budgetary impacts. The 
declaration of moratorium is not significant within the meaning of the 
Executive Order.
    The declaration of moratorium is not the result of a policy 
formulated or implemented by the agency, but is instead the result of 
the application of found facts to the Congressional standards set forth 
in the Atlantic Coastal Act and as such, the declaration does not 
implicate federalism in the manner contemplated by Executive Order 
13132. Further, the agency has consulted with New Jersey to the maximum 
extent practicable in this matter given the truncated timeframe set 
forth in the Atlantic Coastal Act. Rather, the Act provides clear 
evidence that Congress intended the Secretary to have the authority to 
preempt state law. That authority has been delegated from the Secretary 
to NMFS. The scope of the moratorium reflects the standards set forth 
in the Atlantic Coastal Act, and as such restricts state law to the 
minimum level necessary to further the objectives of the statute.

    Authority: 16 U.S.C. 5101 et seq.

    Dated: April 22, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-9738 Filed 4-26-10; 8:45 am]
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