[Federal Register: December 27, 2002 (Volume 67, Number 249)]
[Rules and Regulations]
[Page 78990-78993]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de02-22]
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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unless otherwise modified or superseded through publication of a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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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