[Federal Register Volume 76, Number 218 (Thursday, November 10, 2011)]
[Rules and Regulations]
[Pages 70064-70066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29180]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 110912579-1627-01]
RIN 0648-BB43


Atlantic Highly Migratory Species; Update to Information on the 
Effective Date of Atlantic Smoothhound Shark Fishery Management 
Measures

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

ACTION: Final rule.

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SUMMARY: NMFS is updating the anticipated effective date of smoothhound 
shark management measures implemented in the Final Rule for Amendment 3 
to the 2006 Consolidated Highly Migratory Species (HMS) Fishery 
Management Plan (FMP) that published on June 1, 2010, and were 
corrected on August 17, 2010. These measures originally were to be 
effective around April 2012, before the beginning of the 2012 fishing 
year. However, the recently enacted Shark Conservation Act of 2010 
requires NMFS to re-evaluate its shark management measures. The 
effective date will therefore be later than originally thought to fully 
consider the Shark Conservation Act implications and to allow time for 
the Section 7 consultation under the Endangered Species Act (ESA) to be 
completed. This rule also removes and reserves the smoothhound shark 
regulations. These sections will be returned, with amendments as 
needed, in a final rule that implements both the smoothhound shark 
sections of the Shark Conservation Act and any requirements of the 
Section 7 consultation regarding smoothhound sharks.

DATES: The rule is effective December 12, 2011. The amendments to Sec.  
635.21(e)(3)(i), Sec.  635.24(a)(7), and Sec.  635.71(d)(18), published 
at 76 FR 49379, August 10, 2011, are withdrawn, effective November 10, 
2011.

FOR FURTHER INFORMATION CONTACT: Steve Durkee at (202) 670-6637 or 
Karyl Brewster-Geisz at (301) 427-8503; (fax) (301) 713-1917.

SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed 
under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) 
Fishery Management Plan (FMP), its amendments, and its implementing

[[Page 70065]]

regulations found at 50 CFR part 635, issued under authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1801 et seq.).
    The regulatory identification number (RIN) for Amendment 3 to the 
2006 Consolidated HMS FMP was prematurely closed. The RIN for this 
action is formally tied to the closed RIN for Amendment 3, 0648-AW65.
    Amendment 3 (75 FR 30484, June 1, 2010; corrected by 75 FR 50715, 
August 17, 2010) will bring smoothhound sharks under Federal 
management. The smoothhound shark complex consists of smooth dogfish 
(Mustelus canis) and the Florida smoothhound (Mustelus norrisi). In 
Amendment 3, NMFS determined that smoothhound sharks are oceanic sharks 
that should be managed under the Secretary's authority because of their 
wide distribution and because their range extends into the 
jurisdictions of more than one of the five Atlantic fishery management 
councils. NMFS noted that, based on existing data, the smoothhound 
shark fishery was substantial, with average annual landings of 431 mt 
dw, which would rank among the highest for any species of shark managed 
by NMFS. Accordingly, NMFS determined that sound, science-based 
conservation and management was necessary to provide for the long-term 
sustainable yield of the stock.
    Most smoothhound shark catch occurs with gillnet and trawl gear. In 
Amendment 3, NMFS stated that managing the species using uniform 
conservation and management measures developed and implemented through 
an FMP in accordance with the procedures set forth in the Magnuson-
Stevens Act would better engage fishermen in developing conservation 
measures affecting the fishery. It would become increasingly difficult 
for NMFS to determine if prescriptive conservation and management 
measures, through future FMP amendments and/or regulatory changes, were 
needed without initial smoothhound management measures in place to 
collect critical data through Amendment 3.
    The final rule implementing Amendment 3 published in June 2010, but 
the effective date for all smoothhound shark management measures was 
delayed to provide time for the NMFS Southeast Regional Office of 
Protected Resources to finalize a Biological Opinion (BiOp) on the 
proposed Amendment 3 measures for smoothhound effects on ESA-listed 
turtles and the northern right whale. Time was also needed for NMFS to 
perform outreach to a new set of constituents and to implement a new 
commercial smoothhound fishing permit (including Office of Management 
and Budget approval). In the final rule implementing Amendment 3, NMFS 
stated that a document would be published in the Federal Register 
announcing the effective date of those provisions once the Office of 
Management and Budget (OMB) approved information collection 
requirements, as required under the Paperwork Reduction Act (PRA). 
Furthermore, NMFS stated that the effective date would likely be before 
the start of the 2012 fishing season for smoothhounds (approximately 
April 1, 2012).
    Since publication of the final rule implementing Amendment 3, the 
Shark Conservation Act of 2010 (Pub. L. 111-348) became law. This 
legislation directly impacts the smoothhound shark fishery. 
Specifically, it amended the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) to provide greater protection for 
sharks landed in or imported into the United States. Among the 
provisions are two requirements that affect domestic shark management. 
One provision amends the Magnuson-Stevens Act to require that all 
sharks landed in the United States be maintained with the fins 
naturally-attached to the carcass through offloading. The second 
provision is labeled as a ``savings clause'' and reads: ``The 
amendments made by subsection (a) do not apply to an individual engaged 
in commercial fishing for smooth dogfish (Mustelus canis) in that area 
of the waters of the United States located shoreward of a line drawn in 
such a manner that each point on it is 50 nautical miles from the 
baseline of a State from which the territorial sea is measured, if the 
individual holds a valid State commercial fishing license, unless the 
total weight of smooth dogfish fins landed or found on board a vessel 
to which this subsection applies exceeds 12 percent of the total weight 
of smooth dogfish carcasses landed or found on board.''
    Since NMFS needs to complete ESA consultation for the measures 
proposed for smoothhound sharks, and because the Agency needs to 
consider and implement congressionally-mandated smoothhound fishery 
management measures, NMFS is postponing the anticipated effective date 
of the Amendment 3 smoothhound management measures. The Agency no 
longer anticipates an effective date of April 1, 2012. Instead, NMFS 
anticipates the date will fall on the effective date of the measures in 
the forthcoming final rule to implement 2010 Shark Conservation Act 
smoothhound provisions, and only after ESA Section 7 consultation is 
completed. Notice of the effective date will be provided to the public 
and interested parties through publication in the Federal Register and 
through other outreach channels, including constituent phone calls and 
listserve notices. This rule also removes and reserves the smoothhound 
shark regulations in the Code of Federal Regulations. These sections 
will be returned, with amendments as needed, in a final rule that 
implements both the smoothhound shark sections of the Shark 
Conservation Act and any requirements of the Section 7 consultation 
regarding smoothhound sharks.

Classification

    The NMFS AA has determined that this final action is necessary for 
the conservation and management of the HMS fishery, and that it is 
consistent with the Magnuson-Stevens Act, the 2006 Consolidated 
Atlantic HMS FMP and its amendments, ATCA, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior 
notice and an opportunity for public comment on this action, as notice 
and comment is unnecessary. This action does not amend prior 
regulations, but merely provides updated information on the anticipated 
timing of future rulemaking to implement Amendment 3. Indeed, NMFS is 
not proposing any particular rulemaking action upon which the public 
could comment, but is instead delaying the anticipated effective date 
of a regulation to allow NMFS to assess the impact of the 2010 Shark 
Conservation Act on the original rulemaking. For the same reasons, 
there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay 
in effective date.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Permits, Quota, Smoothhound 
shark.



[[Page 70066]]


    Dated: November 7, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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

0
1. The authority citation for part 635 continues to read as follows:

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


Sec.  635.2  [Amended]

0
2. In Sec.  635.2, the definition of ``smoothhound shark'' is removed.


Sec.  635.4  [Amended]

0
3. In Sec.  635.4, paragraph (e)(4) is removed and reserved.


Sec.  635.20  [Amended]

0
4. In Sec.  635.20, paragraph (e)(4) is removed and reserved.


Sec.  635.22  [Amended]

0
5. In Sec.  635.22, paragraph (c)(6) is removed and reserved.


Sec.  635.27  [Amended]

0
6. In Sec.  635.27, paragraphs (b)(1)(vii) and (b)(2)(iv) are removed 
and reserved.

Appendix A to Part 635 [Amended]

0
7. In Table 1 of Appendix A to part 635, the heading and text for the 
entry E is removed and reserved.

[FR Doc. 2011-29180 Filed 11-9-11; 8:45 am]
BILLING CODE 3510-22-P