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 noncompliance;
Declaration of a
moratorium.
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withdrawn by NMFS until New Jersey is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 noncompliance
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
VerDate Nov<24>2008 16:09 Apr 26, 2010 Jkt 220001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\27APN1.SGM 27APN1 mstockstill on DSKH9S0YB1PROD with NOTICES
22104 Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Notices
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
VerDate Nov<24>2008 16:09 Apr 26, 2010 Jkt 220001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\27APN1.SGM 27APN1 mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register /Vol. 75, No. 80 /Tuesday, April 27, 2010 /Notices 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 nonsandbar
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
VerDate Nov<24>2008 16:09 Apr 26, 2010 Jkt 220001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\27APN1.SGM 27APN1 mstockstill on DSKH9S0YB1PROD with NOTICES
22106 Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Notices
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]
BILLING CODE 3510–22–S