01-5435. 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.

SUMMARY:

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

DATES:

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

ADDRESSES:

Written comments on this action must be mailed to Christopher Rogers, Acting Chief, NMFS Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910; or faxed to 301-713-1917. Comments will not be accepted if submitted via email or the Internet. Copies of the environmental assessment and regulatory impact review prepared for this action may be obtained from Margo Schulze-Haugen at the same address.

FOR FURTHER INFORMATION CONTACT:

Margo Schulze-Haugen or Karyl Brewster-Geisz at 301-713-2347.

SUPPLEMENTARY INFORMATION:

The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR part 635.

On May 2, 1997, NMFS was sued by the Southern Offshore Fishing Association (SOFA) and other commercial fishermen and dealers on a regulation that reduced the large coastal shark (LCS) commercial quota by 50 percent to 1,285 metric tons (mt) dressed weight (dw) and established a small coastal shark (SCS) commercial quota of 1,760 mt dw.

In April 1999, in response to new requirements of the Magnuson-Stevens Act, NMFS published the final HMS FMP. The HMS FMP included numerous measures to rebuild or prevent overfishing of Atlantic sharks in commercial and recreational fisheries, including a rebuilding plan for LCS that further reduced commercial quotas and measures to prevent overfishing of SCS. On June 25, 1999, SOFA and commercial fishermen and dealers sued NMFS on the commercial shark measures in the HMS FMP and its implementing regulations.

On June 30, 1999, Judge Steven D. Merryday of the U.S. District Court for the Middle District of Florida enjoined the Atlantic shark commercial quotas and fish-counting methods (including the counting of dead discards and state commercial landings after Federal closures) adopted in the HMS FMP. The injunction ordered that NMFS maintain the commercial shark quotas and fish-counting methods at 1997 levels.

On June 12, 2000, in response to a joint motion, Judge Merryday ordered that NMFS may proceed with implementation and enforcement of the prohibited species provisions adopted in the HMS FMP.

Settlement Agreement

On November 21, 2000, plaintiffs and NMFS reached a settlement agreement that would dismiss both lawsuits and prescribed actions to be taken by both parties. On December 7, 2000, Judge Merryday entered an order approving the settlement agreement. The settlement agreement requires NMFS to re-establish the 1997 commercial LCS quota and catch accounting/monitoring procedures (dead discards and state landings after Federal closure not counted against Federal quotas; no splitting of the LCS commercial quota into ridgeback and non-ridgeback subgroups; no minimum size for ridgeback LCS) pending an independent review of the 1998 LCS stock assessment. The settlement agreement also requires NMFS to re-establish the 1997 SCS commercial quota pending a new SCS stock assessment. Both the independent review of the 1998 LCS stock assessment and a new SCS stock assessment are anticipated to be completed in 2001. NMFS also anticipates conducting a new LCS stock assessment in 2001, which will also be independently reviewed.

NMFS determined that the settlement agreement was appropriate because it will conserve Atlantic sharks while maintaining a sustainable fishery in the long-term; move the management process for Atlantic sharks forward through quality-controlled scientific assessment and appropriate rulemaking; and promote confidence in the management process and its underlying science.

This emergency rule is necessary because, since the court injunction was dissolved per the settlement agreement, the HMS FMP and its implementing regulations are in force. Specifically, without this emergency rule, the reduced LCS and SCS commercial quotas of 816 mt dw and 329 mt dw, respectively, and the catch accounting/monitoring procedures adopted in the HMS FMP would remain in force, inconsistent with the court-approved settlement agreement. This emergency rule will ensure that the regulations in force are consistent with the court-approved settlement agreement.

Commercial Quotas and Catch Accounting/Monitoring Procedures

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

Classification

These emergency regulations are published under the authority of the Magnuson-Stevens Act. The Assistant Administrator for Fisheries (AA) has determined that these regulations are necessary to ensure that regulations in force are consistent with the court-approved settlement agreement.

NMFS prepared an Environment Assessment for this emergency rule that describes the impact on the human environment and found that no significant impact on the human environment would result. This emergency rule is of limited duration and is the surest and quickest way to conserve Atlantic sharks and ensure the long-term sustainability of shark fisheries. While this action could result in further LCS stock declines in the short-term, NMFS believes that the risks of protracted litigation (potentially several years) and uncertain outcome outweigh these short-term negative ecological impacts.

NMFS also prepared a Regulatory Impact Review for this action which assesses the economic costs and benefits of the action. Because the fishing quotas and catch accounting/ monitoring procedures for the LCS or SCS fisheries, as adopted in the HMS FMP and its implementing regulations, have been thus far enjoined by court order, re-establishing the 1997 management measures for the duration of this emergency rule will not change the short-term economic benefits or costs associated with the fisheries.

This emergency rule has been determined to be not significant for the purposes of Executive Order 12866.

NMFS issues this emergency rule, effective for 180 days, as authorized by section 305(c) of the Magnuson-Stevens Act. This emergency rule may be extended for an additional 180 days provided the public has had an opportunity to comment on the emergency rule and, at the time of extension, the agency is actively pursuing a plan amendment or proposed regulations to conserve Atlantic sharks on a permanent basis. NMFS will consider public comments on this emergency rule in determining whether to maintain or extend this emergency rule. Responses to comments will be provided if the emergency rule is revoked, modified, or extended. Because no general notice of proposed rulemaking is required to be published in the Federal Register for this emergency rule, the analytical requirements of the Regulatory Flexibility Act do not apply; thus, no Regulatory Flexibility Analysis was prepared.

The AA finds that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such provisions would be contrary to public interest. This emergency rule is necessary to meet the requirements of a court-approved settlement agreement. Further litigation that could further delay implementation of appropriate quotas is contrary to the public interest, because of the concern that LCS stocks would experience further decline during any protracted litigation.

The AA, under 5 U.S.C. 553(d)(3), also finds that there is good cause to waive the 30-day delay in the effective date of this emergency rule, as is normally required, because such delay would be contrary to the public good. The AA finds that this measure is necessary to meet the timely requirements of the court order and to achieve the agency’s goals, as described here. Given NMFS’s ability to communicate rapidly these regulations to fishing interests through the HMS Fax network, NOAA weather radio, press releases, mailing lists, and the HMS Infoline, the AA believes that affected fishermen and other interested persons will have sufficient and timely notice of this action.

List of Subjects in 50 CFR Part 635

• Fisheries
• Fishing
• Fishing Vessels
• Foreign relations
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements
• Statistics
• Treaties

Dated: February 28, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

1. The authority citation for 50 CFR part 635 continues to read as follows:

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

§ 635.20

[Amended]

2. In § 635.20, paragraph (e)(1) is suspended effective from March 6, 2001 through September 4, 2001.

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

§ 635.27

Quotas.

* * * * *

(b) * * *

(1) * * *

(v) Large coastal and small coastal sharks. The annual commercial quota for large coastal sharks is 1,285 mt dw, divided between two equal semiannual seasons, January 1 through June 30, and July 1 through December 31. The quota for each semiannual large coastal shark season is 642.5 mt dw. The length of each large coastal shark season will be determined based on the projected catch rates, available quota, and other relevant factors. NMFS will file with the Office of the Federal Register for publication in the Federal Register notification of the length of each season for large coastal sharks at least 30 days prior to the beginning of the season. The annual commercial quota for small coastal sharks is 1,760 mt dw, divided between two equal semiannual seasons, January 1 through June 30, and July 1 through December 31. The quota for each semiannual small coastal shark season is 880 mt dw.

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

* * * * *

4. In § 635.28, paragraph (b)(1) is suspended and paragraph (b)(4) is added, effective from March 6, 2001 through September 4, 2001, to read as follows:

§ 635.28

Closures.

(b) * * *

(4) The commercial fishery for large coastal sharks will remain open for fixed semiannual fishing seasons, as specified at § 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 § 635.4

* * * * *