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[Federal Register Volume 78, Number 85 (Thursday, May 2, 2013)]
[Proposed Rules]
[Pages 25685-25690]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10439]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 111014628-3329-01]
RIN 0648-BB54
Magnuson-Stevens Act Provisions; Implementation of the Shark
Conservation Act of 2010
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes a rule to implement the provisions of the Shark
Conservation Act of 2010 (SCA) and prohibit any person from removing
any of the fins of a shark at sea, possessing shark fins on board a
fishing vessel unless they are naturally attached to the corresponding
carcass, transferring or receiving fins from one vessel to another at
sea unless the fins are naturally attached to the corresponding
carcass, landing shark fins unless they are naturally attached to the
corresponding carcass, or landing shark carcasses without their fins
naturally attached. NMFS proposes this action to amend existing
regulations and make them consistent with the SCA.
DATES: Written comments must be received by June 17, 2013.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2012-0092, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal www.regulations.gov. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter NOAA-NMFS-2012-0092 in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on the right of that line.
Mail: Submit written comments to Kim Marshall, National
Marine Fisheries Service, NOAA; 1315 East-West Highway, Silver Spring,
MD 20910.
Fax: 301-713-1193; Attn: Kim Marshall.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information, or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file
formats only.
Electronic copies of the Environmental Assessment (EA), the
Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility
Analysis (IRFA) prepared for this action are available on the Federal
e-Rulemaking Portal www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kim Marshall, 301-427-8556.
SUPPLEMENTARY INFORMATION: On December 21, 2000, the President signed
into law the Shark Finning Prohibition Act (Pub. L. 106-557) (SFPA).
Among other things, the SFPA amended section 307 of the Magnuson-
Stevens Act to prohibit removing any of the fins of a shark (including
the tail) and returning the remainder of the shark to the sea. In
addition, the SFPA prohibited any person from having custody, control,
or possession of shark fins aboard a fishing vessel without the
corresponding carcass, and prohibited any person from landing shark
fins without the corresponding carcass. NMFS published a final rule to
implement the SFPA on February 11, 2002 (67 FR 6194).
[[Page 25686]]
In 2010, the President signed into law the Shark Conservation Act
of 2010 (Pub. L. 111-348, Jan. 4, 2011) (SCA). The SCA amended two
existing acts, the High Seas Driftnet Fishing Moratorium Protection Act
(Moratorium Protection Act), 16 U.S.C. 1826d et seq., and the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act
or MSA), 16 U.S.C. 1801 et seq., to improve the conservation of sharks.
In particular, the SCA amended the Magnuson-Stevens Act to prohibit
any person from: (1) Removing any of the fins of a shark (including the
tail) at sea; (2) having custody, control, or possession of a fin
aboard a fishing vessel unless it is naturally attached to the
corresponding carcass; (3) transferring a fin from one vessel to
another vessel at sea, or receiving a fin in such transfer, unless the
fin is naturally attached to the corresponding carcass; or (4) landing
a fin that is not naturally attached to the corresponding carcass, or
landing a shark carcass without its fins naturally attached. For the
purpose of the SCA and these regulations, ``naturally attached,'' with
respect to a shark fin, means to be attached to the corresponding shark
carcass through some portion of uncut skin.
This proposed action would amend NMFS' regulations to implement
these provisions of the SCA. Specifically, the proposed rule would
amend regulations at 50 CFR Part 600, Subpart N to prohibit the removal
of shark fins at sea, namely, the possession, transfer and landing of
shark fins that are not naturally attached to the corresponding
carcass, and the landing of shark carcasses without the corresponding
fins naturally attached. NMFS notes that it interprets the prohibitions
in that section as applying to sharks, not skates and rays, and
solicits public comment on whether clarification is needed in the
regulatory text on this or any other issues (see ADDRESSES).
NMFS also proposes here to adopt language from section 103(b) of
the SCA regarding individuals engaged in commercial fishing for smooth
dogfish. While this proposed rule adopts the statutory text, NMFS
intends to further develop those provisions in a subsequent rulemaking.
This rule would also combine the existing sections Sec. Sec. 600.1203
and 600.1204 into one section. The text in all sections would be
amended to implement the provisions of the SCA.
The MSA authorizes the Secretary to regulate fisheries seaward of
the inner boundary of the EEZ, which is defined as a line coterminous
with the seaward boundary of each U.S. coastal state. 16 U.S.C.
1802(11). Thus, the SCA provisions apply to any person subject to the
jurisdiction of the U.S., including persons on board U.S. and foreign
vessels, engaging in activities prohibited under the statute for sharks
harvested seaward of the inner boundary of the EEZ. Federal regulations
pertaining to the conservation and management of specific shark
fisheries are set forth in Parts 635, 648 and 660 of Title 50 of the
Code of Federal Regulations. For Atlantic highly migratory species
fisheries, as a condition of its federal permit, a vessel's fishing,
catch, and gear are subject to federal requirements even when fishing
in state waters. See 50 CFR 635.4(a)(10) (noting that, when fishing
within the waters of a state with more restrictive regulations, persons
aboard the vessel must comply with those requirements). This rule
amends 50 CFR part 600, subpart N, and does not supersede or amend any
other federal regulation or requirement related to the conservation and
management of sharks.
The SCA also amended the Moratorium Protection Act, which provides
for identification and certification of nations to address illegal,
unreported, or unregulated fishing; bycatch of protected living marine
resources; and, as amended by the SCA, shark catches. 16 U.S.C. 1826h-
1826k. With regard to sharks, the Moratorium Protection Act provides
for identification of a nation if its fishing vessels have been engaged
during the preceding calendar year in fishing activities or practices
in waters beyond any national jurisdiction that target or incidentally
catch sharks and the nation has not adopted a regulatory program for
sharks that is comparable to the United States, taking into account
different conditions. 16 U.S.C. 1826k(a)(2). NMFS published a final
rule that amends the Moratorium Protection Act regulations consistent
with the SCA on January 16, 2013 (78 FR 3338).
Relationship of Regulations With Current State Rules
Several states and territories have enacted or are considering
enacting statutes that address shark fins. Each statute differs in its
precise details, but generally most contain a prohibition on
possession, landing or sale of, or other activities involving, shark
fins. Depending on how they are interpreted and implemented, these
statutes have the potential to undermine significantly conservation and
management of federal shark fisheries.
Under the Magnuson-Stevens Act, the United States claims sovereign
rights and exclusive fishery management authority over all fish, and
all Continental Shelf fishery resources, within the U.S. exclusive
economic zone (EEZ) and also claims exclusive fishery management
authority for specified resources beyond the EEZ. 16 U.S.C. 1811. To
conserve and manage fishery resources and promote domestic commercial
and recreational fishing under sound conservation and management
principles, the Magnuson-Stevens Act authorizes NMFS and Fishery
Management Councils to develop and implement federal fishery management
plans, which must be consistent with ten national standards and other
mandatory provisions set forth in the statute. 16 U.S.C. 1801, 1851(a)
and 1853(a). The Magnuson-Stevens Act defines ``conservation and
management'' as including measures ``which are designed to assure that
. . . a supply of food and other products may be taken, and that
recreational benefits may be obtained, on a continuing basis.'' 16
U.S.C. 1802(5). National Standard 1 requires that conservation and
management measures under a fishery management plan, plan amendment or
implementing regulations ``prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery for the United
States fishing industry.'' 16 U.S.C. 1851(a)(1). Obtaining optimum
yield, which includes providing the greatest overall benefit to the
Nation, particularly with respect to food production and recreational
opportunities, is a fundamental principle under the Magnuson-Stevens
Act. State prohibitions on possession, landing, transfer, or sale of
sharks or shark fins lawfully harvested seaward of state boundaries
constrain the ability of federal fishery participants to make use of
those sharks for commercial and other purposes.
Neither the SFPA nor the SCA suggest that Congress intended to
amend the Magnuson-Stevens Act to prohibit the possession or sale of
shark fins. Rather, Congress chose to prohibit discarding shark
carcasses at sea, and required that fins be naturally attached to the
carcass of the corresponding shark. The SCA therefore reflects a
balance between addressing the wasteful practice of shark finning and
preserving opportunities to land and sell sharks harvested consistent
with the Magnuson-Stevens Act. Although state shark fin laws are also
intended to conserve sharks, they may not unduly
[[Page 25687]]
interfere with the conservation and management of federal fisheries.
The Magnuson-Stevens Act preempts state regulation of fisheries in
waters outside the boundaries of a state, except according to the
narrow opportunities for state regulation specified at 16 U.S.C.
1856(a)(3). Within the U.S. EEZ, a State may regulate a fishing vessel
only where: (1) The fishing vessel is registered under the laws of that
State, and there is no federal fishery management plan or regulations
for the fishery, or the State's laws and regulations are consistent
with the applicable federal plan and regulations; or (2) the applicable
federal plan delegates management of the fishery to the State, and the
State's laws and regulations are consistent with that plan (16 U.S.C.
1856(a)(3)(A-B)). ``State'' means each of the several States, the
District of Columbia, Puerto Rico, American Samoa, the Virgin Islands,
Guam, and any other Commonwealth, territory, or possession of the
United States (16 U.S.C. 1802(41)).
State or territorial shark fin laws are preempted if they are
inconsistent with the Magnuson-Stevens Act as amended by the SCA,
implementing regulations for the statutes, or applicable federal
fishery management plans or regulations. If state or territorial laws
are construed or interpreted so they are consistent with federal law,
fishery management plans and regulations, those laws are not preempted.
For example, if a state law prohibiting the possession, landing, or
sale of shark fins is interpreted not to apply to sharks legally
harvested in federal waters, the law would not be preempted. On the
other hand, a state law that interferes with accomplishing the purposes
and objectives of the Magnuson-Stevens Act would be preempted. As
described above, promoting commercial fishing under sound conservation
and management principles is a key purpose of the Act. If sharks are
lawfully caught in federal waters, state laws that prohibit the
possession and landing of those sharks with fins naturally attached or
that prohibit the sale, transfer or possession of fins from those
sharks unduly interfere with achievement of Magnuson-Stevens Act
purposes and objectives.
The Magnuson-Stevens Act generally does not preempt a state's laws
applicable to its fisheries in state waters and states that, ``Except
as provided in subsection (b), nothing in this Act shall be construed
as extending or diminishing the jurisdiction or authority of any State
within its boundaries.'' 16 U.S.C. 1856(a)(1). Regulations issued in
2002 at 50 CFR 600.1201(c) provide that: ``Nothing in this regulation
supersedes more restrictive state laws or regulations regarding shark
finning in state waters.'' The intent of this provision was to affirm
that the regulations would not infringe on a state's jurisdiction or
authority. It was not intended to imply that states may interfere with
or impede accomplishment of fishery management objectives for
federally-managed commercial and recreational fisheries. NMFS' view
regarding state and federal authority has not changed since 2002, but
the agency believes that section 600.1201(c) could be clarified. Thus,
this proposed rule would revise section 600.1201(c) to state that the
subpart does not supersede state laws or regulations governing
conservation and management of state shark fisheries in state waters.
Classification
Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this proposed rule is
consistent with the other provisions of the Magnuson-Stevens Act and
other applicable law, subject to further consideration after public
comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA describes the economic impact this proposed rule would have on
small entities. A description of the action, why it is being
considered, and the legal basis for this action are included at the
beginning of this section in the preamble and in the SUMMARY section of
the preamble. A summary of the analysis follows. A copy of this
analysis is available from NMFS (see ADDRESSES).
NMFS proposes this action to implement the SCA. This proposed
action would revise existing regulations that implement the SFPA, which
banned ``shark finning'' (the practice of removing the fin or fins from
a shark and discarding the remainder of the shark at sea). The proposed
rule would amend regulations to prohibit the removal of shark fins at
sea, namely, the possession, transfer and landing of shark fins that
are not naturally attached to the corresponding carcass, and the
landing of shark carcasses without the corresponding fins naturally
attached. The SCA applies to any person subject to the jurisdiction of
the U.S., including persons on board U.S. and foreign vessels, who
engages in activities prohibited under the statute for sharks harvested
seaward of the inner boundary of the EEZ. For Atlantic highly migratory
species fisheries, as a condition of its federal permit, a vessel's
fishing, catch, and gear are subject to federal requirements even when
fishing in state waters. See 50 CFR 635.4(a)(10) (noting that, when
fishing within the waters of a state with more restrictive regulations,
persons aboard the vessel must comply with those requirements).
This rule is expected to directly affect commercial and for-hire
fishing vessels that land sharks harvested seaward of the inner
boundary of the U.S. EEZ or possess permits which allow them to land
sharks harvested seaward of the inner boundary of the U.S. EEZ. The
Small Business Administration has established size criteria for all
major industry sectors in the U.S. including fish harvesters. A
business involved in fish harvesting is classified as a small business
if it is independently owned and operated, is not dominant in its field
of operation (including its affiliates), and has combined annual
receipts not in excess of $4.0 million (NAICS code 114111, finfish
fishing) for all its affiliated operations worldwide. For for-hire
vessels, the other qualifiers apply and the receipts threshold is $7.0
million (NAICS code 713990, recreational industries).
Sharks are harvested in several commercial fisheries that occur in
the U.S. EEZ, including the spiny dogfish fishery in the northeast
United States, the Atlantic HMS fishery in the northeast and southeast
United States, the west coast HMS and groundfish fisheries, and the
Hawaii and American Samoa-based pelagic longline fisheries, which allow
retention of incidentally caught sharks. In addition, groundfish
vessels in the Gulf of Alaska and Bering Sea and Aleutian Islands can
retain sharks, although there are no directed shark fisheries and the
vast majority of incidentally caught sharks are discarded.
In 2011, 2,743 vessels were issued federal spiny dogfish permits,
but only 326 of these vessels actually landed spiny dogfish. The total
ex-vessel value of commercially landed spiny dogfish in calendar year
2011 was about $4.646 million. Thus, average ex-vessel revenue per
vessel from spiny dogfish was approximately $14,250 in calendar year
2011. Based on these figures, all spiny dogfish vessels that might be
affected by this proposed rule are determined for the purpose of this
analysis to be small entities.
As of October 2011, NMFS had issued 217 directed shark permits and
262 incidental shark permits in the Atlantic
[[Page 25688]]
highly migratory species fishery. In 2011, the ex-vessel revenues for
all sharks landed in the Atlantic highly migratory species fishery
totaled $3,067,116. Thus, the average ex-vessel revenue per permitted
vessel was approximately $6,400 in 2011. Based on these figures, all
Atlantic highly migratory species shark vessels that might be affected
by this proposed rule are determined for the purpose of this analysis
to be small entities.
Most sharks on the west coast are caught in the drift gillnet
component of the HMS fishery and the northwest groundfish fishery. In
2011, 243 commercial vessels had shark landings on the west coast and
total ex-vessel revenue for west coast shark landings was $349,634.
Thus, in 2011, average ex-vessel revenue per vessel from shark landings
was approximately $1,450. Average total ex-vessel revenue per vessel
was about $107,000 in 2011. The maximum total ex-vessel revenue for a
single vessel that commercially harvested sharks on the west coast was
approximately $1.48 million in 2011. Based on these figures, all west
coast commercial fishing vessels that land sharks and might be affected
by this proposed rule are determined for the purpose of this analysis
to be small entities.
Entry into the Hawaii-based pelagic longline fishery is limited,
with a maximum of 164 vessels allowed. As of March 2012, 132 vessels
held Hawaii longline limited entry permits (out of 164 total permits).
NMFS estimates the 2010 ex-vessel revenue of pelagic fish landed by
Hawaii-based longline vessels to be about $70 million, or approximately
$427,000 per vessel. In addition, in 2010, 267,000 pounds of sharks
were landed by Hawaii-based longline vessels, and the average price for
these sharks was $0.50 per pound in 2010. Thus, ex-vessel revenue from
shark landings was $135,000 and average revenue per vessel was
approximately $1,020. Thus, shark landings represent a very small
portion of the ex-vessel revenue for the Hawaii-based longline vessels.
In 2009, 50 vessels obtained American Samoa longline limited entry
permits, and 26 of those vessels actively fished. These vessels'
operations are economically smaller than those based in Hawaii. Based
on these figures, all Hawaii and American Samoa-based pelagic longline
vessels that might be affected by this proposed rule are determined for
the purpose of this analysis to be small entities.
As of 2009, approximately 867 vessels operated in the Bering Sea/
Aleutian Islands (BSAI) or Gulf of Alaska (GOA) groundfish fisheries,
with some vessels operating in both. Approximately 97% of shark catch
in Alaska groundfish fisheries is discarded. The other 3 percent is
retained and largely processed into fishmeal. Both large and small
fishing entities operate in the BSAI groundfish fisheries. In 2008, 215
small groundfish entities operated in the BSAI, with estimated average
2008 gross revenues from all sources of about $1.53 million. Most of
these (204) are catcher vessels, with estimated average gross revenues
of $1.49 million. About half of the catcher-vessels (103) are trawlers
with average gross revenues of about $1.71 million, 46 are hook-and-
line vessels with average gross revenues of about $0.58 million, and 62
are pot vessels with average gross revenues of about $1.70 million.
There were 11 small catcher-processors, seven of which were hook-and-
line vessels with average gross revenues of about $2.65 million. These
figures may overstate the number of small entities since it considers
individual vessel gross revenues, but does not capture affiliations
among vessels. The key fleets harvesting shark are the Pollock trawlers
and the hook-and-line vessels fishing for Pacific cod. All of the
Pollock trawlers are believed to be large entities, either because the
vessels themselves gross more than $4 million or because they are
members of American Fisheries Act cooperatives that gross more than
that. The BSAI hook-and-line vessels targeting Pacific cod are
predominately large vessels, though two are considered small.
In 2008, 702 small groundfish entities operated in the GOA
groundfish fisheries, with average revenues from all sources of about
$0.60 million. Almost all of these vessels (697) are catcher vessels
with average revenues of about $0.60 million. A majority of the
catcher-vessels (520) use hook-and-line gear and have average revenues
of about $0.49 million, while 73 are trawlers with average revenues of
about $1.27 million, and 142 are pot vessels with average revenues of
$0.85 million. There were five catcher-processors, mostly hook-and-line
vessels, with average gross revenues of about $1.52 million. These
figures may overstate the number of small entities since it considers
individual vessel gross revenues, but does not capture affiliations
among vessels. Halibut hook-and-line vessels took a significant
proportion of the shark catch. There were an estimated 270 small
sablefish hook-and-line vessels with an estimated average gross revenue
from all sources of $0.77 million, an estimated 128 Pacific cod hook-
and-line vessels with an average gross of $0.59 million, an estimated
21 small pelagic pollock trawlers with average gross revenues of about
$1.02 million, five non-pelagic trawlers targeting arrowtooth flounder
with average gross revenues of about $0.58 million, and five non-
pelagic trawlers targeting shallow water flatfish with average gross
revenues of about $0.65 million.
Owners of charter boats or headboats (i.e., for-hire vessels) that
are used to fish for, take, retain, or possess Atlantic tunas, sharks,
swordfish, or billfish must obtain an Atlantic HMS Charter/Headboat
permit. As of October 2011, NMFS had issued 4,194 Atlantic HMS Charter/
Headboat permits. No information is currently available regarding the
number of for-hire vessels that specifically land sharks in the
Atlantic, Gulf of Mexico, or Caribbean Sea. However, in 2010, average
annual gross revenue for headboats and charter vessels in the Northeast
were approximately $214,000 and $27,650, respectively. In the South
Atlantic, average annual gross revenue for headboats and charter
vessels in 2009 were approximately $187,500 and $106,000, respectively.
In the Gulf of Mexico, average annual gross revenue for headboats and
charter vessels were about $230,000 and $45,500, respectively.
According to these studies, no individual for-hire vessel had annual
gross revenues exceeding $7 million. Thus, all for-hire vessels that
may be affected by this proposed rule are determined for the purpose of
this analysis to be small entities.
Party and charter boats target sharks on the west coast as well. In
2011, about 620,256 west coast recreational trips (days) by party and
charter boats retained about 16 metric tons of sharks. Similarly, an
estimate of about 778,798 recreational trips (days) by west coast
private or rental boats retained about 48 metric tons of sharks in
2011. In 2011, only 13 for-hire vessels were known to land sharks in
California that were harvested from the EEZ. In 2000, the average
annual gross revenue for a large or medium size charter vessel on the
west coast was approximately $401,000, while the maximum annual gross
revenue for one of these vessels was $7 million. In 2007, the average
annual gross revenue for a charter vessel in Washington and Oregon was
approximately $70,600. Based on these figures, all for-hire vessels
that land sharks and might be affected by this proposed rule are
determined for the purpose of this analysis to be small entities. Based
on these figures, all charter boats, headboats, and that land
[[Page 25689]]
sharks and might be affected by this proposed rule are determined for
the purpose of this analysis to be small business entities.
NMFS does not have information on types of small entities other
than those discussed above. However, other types of small entities may
exist. In addition, NMFS has little information on the number of
transshipment vessels that would be affected by this rule. However, it
is likely that the number of vessels would be small.
The SCA and this proposed rule would not allow fins to be removed
from sharks at sea. Shark fins from for-hire vessels generally are not
removed from the carcass and not sold in commerce, so for-hire vessels
are not expected to experience any economic effects as a result of this
proposed rule.
In many commercial fisheries across the country, such as Atlantic
HMS and Northeast spiny dogfish, SCA provisions are consistent with
current federal regulations. Further, directed fishing for sharks is
prohibited and incidentally harvested sharks are largely processed as
fishmeal in the BSAI and GOA groundfish fisheries. As a result,
commercial vessels in these fisheries are not expected to experience
any economic effects as a result of this proposed rule.
The implementation of state shark fin laws in Washington, Oregon,
California, Hawaii, and American Samoa, raises concerns about potential
negative economic effects on some entities in West Coast, Western
Pacific and other fisheries. State or territorial shark fin laws are
preempted under the Supremacy Clause of the U.S. Constitution if they
are inconsistent with the Magnuson-Stevens Act as amended by the SCA,
implementing regulations for the statutes, or applicable federal
fishery management plans or regulations. The clarification provided in
this proposed rule may have positive economic effects on these
fisheries. Therefore, the effect of this proposed rule on the
commercial vessels in these fisheries is expected to be non-existent or
potentially positive.
No duplicative, overlapping, or conflicting Federal rules have been
identified. This rule would not establish any new reporting or record-
keeping requirements.
One alternative, the status quo, was considered for the proposed
action. This alternative would maintain the current regulations under
the SFPA. Under this alternative, any person may remove and retain on
the vessel fins (including the tail) from a shark harvested seaward of
the inner boundary of the U.S. EEZ; however, the corresponding carcass
must also be retained on board the vessel. It would be a rebuttable
presumption that shark fins landed by a U.S. or foreign fishing vessel
were taken, held, or landed in violation of the regulations if the
total weight of the shark fins landed exceeds 5 percent of the total
dressed weight of shark carcasses on board or landed from the fishing
vessel. This alternative was rejected because it would not comply with
the requirements of the SCA. No other alternatives meet the statutory
requirements, and so none were considered.
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
Dated: April 26, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 600 as follows:
PART 600-MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. Subpart N is revised to read as follows:
Subpart N--Shark Fin Removal, Possession, Transfer and Landing
Sec.
600.1200 Purpose and scope.
600.1201 Relation to other laws.
600.1202 Definitions.
600.1203 Prohibitions.
Subpart N--Shark Fin Removal, Possession, Transfer and Landing
Sec. 600.1200 Purpose and scope.
The regulations in this subpart implement the Shark Conservation
Act of 2010.
Sec. 600.1201 Relation to other laws.
(a) Regulations pertaining to conservation and management
(including record keeping and reporting) for certain shark fisheries
are also set forth in parts 635 (for Federal Atlantic Ocean, Gulf of
Mexico, and Caribbean shark fisheries), 648 (for spiny dogfish
fisheries), 660 (for fisheries off West Coast states), and 665 (for
fisheries in the western Pacific) of this chapter.
(b)(1) This subpart does 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.
(2) State, for the purpose of paragraph (b)(1) of this section,
means Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, Georgia, Florida, the District of Columbia,
or the Potomac River Fisheries Commission.
(c) This subpart does not supersede state laws or regulations
governing conservation and management of state shark fisheries in state
waters.
(d) State and territorial statutes that address shark fins are
preempted if they are inconsistent with the Magnuson-Stevens Act as
amended by the Shark Conservation Act of 2010, regulations under this
part, and applicable federal fishery management plans and regulations.
Sec. 600.1202 Definitions.
(a) In addition to the definitions in the Magnuson-Stevens Act and
in Sec. 600.10, the terms used in this subpart have the following
meanings:
Fin means any of the fins of a shark (including the tail) or a
portion thereof.
Land or landing means offloading fish, or causing fish to be
offloaded, from a fishing vessel, either to another vessel or to a
shore side location or facility, or arriving in port, or at a dock,
berth, beach, seawall, or ramp to begin offloading fish.
Naturally attached, with respect to a shark fin, means attached to
the corresponding shark carcass through some portion of uncut skin.
(b) If there is any difference between a definition in this section
and in Sec. 600.10, the definition in this section is the operative
definition for the purposes of this subpart.
Sec. 600.1203 Prohibitions.
(a) It is unlawful for any person to do, or attempt to do, any of
the following:
[[Page 25690]]
(1) Remove a fin at sea.
(2) To have custody, control, or possession of a fin, aboard a
fishing vessel, unless the fin is naturally attached.
(3) Transfer a fin from one vessel to another vessel at sea unless
the fin is naturally attached.
(4) Receive a fin in a transfer from one vessel to another vessel
at sea unless the fin is naturally attached.
(5) Land a fin unless the fin is naturally attached.
(6) Land a shark carcass without all of its fins naturally
attached.
(7) Possess, purchase, offer to sell, or sell fins or shark
carcasses taken, transferred, landed, or possessed in violation of this
section.
(8) When requested, fail to allow an authorized officer or any
employee of NMFS designated by a Regional Administrator, or by the
Director of the Office of Sustainable Fisheries in the case of the
Atlantic Highly Migratory Species, access to or inspection or copying
of any records pertaining to the landing, sale, transfer, purchase, or
other disposition of fins or shark carcasses.
(b) For purposes of this section, it is a rebuttable presumption
that:
(1) If a fin is found aboard a vessel, other than a fishing vessel,
without being naturally attached, such fin was transferred in violation
of this section.
(2) If, after landing, the total weight of fins landed from any
vessel exceeds five percent of the total weight of shark carcasses
landed, such fins were taken, held, or landed in violation of this
section.
[FR Doc. 2013-10439 Filed 5-1-13; 8:45 am]
BILLING CODE 3510-22-P
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